The Equality Act 2006 is set to clarify the law on religion or belief discrimination. The Act changes the existing definition of religion and belief set out in the Employment Equality (Religion or Belief) Regulations 2003.
The Act also introduces provisions governing discrimination on the grounds of religion or belief in the provision of goods, facilities and services.
Q When will these changes come into force?
A The changes to the definition of religion and belief and the provisions relating to discrimination in the supply of goods, facilities and services will come into effect on 6 April 2007.
Q How will the definition of religion and belief change?
A Regulation 2(1) of the Employment Equality (Religion or Belief) Regulations 2003 (the regulations), defines religion or belief as “any religion, religious belief, or similar philosophical belief”. The explanatory notes to the regulations state that the reference to “similar philosophical belief” does not include any philosophical or political belief unless it is similar to a religious belief, but the Equality Act 2006 amends this definition by removing the word ‘similar’. Under the new definition, “belief means any religious or philosophical belief”. This change will, therefore, considerably widen the scope of what might be regarded as a philosophical belief as any genuine philosophical belief, including political beliefs, will be covered.
Q How will the Equality Act 2006 affect discrimination against non-believers?
A To date, it has been unclear whether or not prohibiting discrimination on the grounds of religion or belief in the regulations includes discrimination against non-believers. When the regulations came into force, Acas guidance suggested that the provisions should apply equally to those who are discriminated against on the grounds that they are non-believers, are not members of a particular religion or hold no particular belief. The Equality Act 2006 (section 77) amends the definition to expressly state that any reference to religion or belief includes a reference to a lack of religion or belief.
Q Will the Equality Act 2006 protect those who are discriminated against due to their association with someone of a particular religion or belief?
A Yes. In amending the definition of direct discrimination, the Equality Act 2006 makes it clear that discrimination in employment can occur on the grounds of another person’s religion or belief rather than the complainant’s. In other words, it will prohibit discrimination that is based on a claimant’s association with someone of a particular religion or belief – such as their spouse.
Q Does the legislation on religious discrimination protect people from being discriminated against on the grounds of their perceived religion or belief?
A The regulations define discrimination as less favourable treatment on the grounds of religion or belief, and therefore cover discrimination on the grounds of an employee’s perceived religion or belief (for example, where an employer mistakenly believes that a job applicant is Jewish and discriminates against them on that basis), regardless of whether or not that perception is correct. However, the new definition under the Equality Act 2006 states that discrimination is required to be “on grounds of the religion or belief of [the claimant] or of any other person”. So while discrimination on the grounds of an employee’s perceived religion or belief does not seem to be covered, this is believed to be an unintended consequence of the new definition of direct discrimination.
Note that the Equality Act 2006, section 45(2) expressly states that, in terms of discrimination on the grounds of religion or belief in the provision of goods and services, “a reference to a person’s religion or belief includes a reference to religion or belief to which he is thought to belong or subscribe”. Therefore, discrimination on the grounds of a person’s perceived religion or belief is covered in these circumstances.
Q What changes will the Equality Act 2006 make to the existing equality commissions?
A The Equality Act 2006 will create a single Commission for Equality and Human Rights (CEHR). This will replace and take on the functions of the Commission for Racial Equality, the Disability Rights Commission and the Equal Opportunities Commission from October 2007. The CEHR will take responsibility for regulating equality in respect of religion and belief, sexual orientation and age. It will also take responsibility for human rights.
By Sarah-Marie Williams, solicitor, Clyde & Co