There is no requirement in the Employment Equality (Religion or Belief) Regulations 2003 (RB regulations) for people to provide evidence of their religion or belief. With the RB regulations now starting to have an impact in the workplace, concerns have been expressed that certain groups will exploit the ‘loose’ definition of religion or belief in the legislation to bring test cases against employers.
When faced with doubt as to whether someone really is a member of a religion or holds a deeply-held belief, what questions should employers ask?
Q How is ‘religion or belief’ defined in the regulations?
A The RB regulations make discrimination unlawful on the grounds of ‘religion or belief’. This refers to any religion, religious belief or similar philosophical belief. According to the explanatory notes accompanying the RB regulations, this does not include any philosophical or political belief unless that belief is similar to a religious belief.
The notes also point out that the courts and tribunals may consider a number of factors when deciding what is a ‘religion or belief’, such as collective worship, a clear belief system, or a profound belief affecting a way of life or view of the world.
Q Are there any other tests that can be applied?
A If there is a dispute, it will be for the courts to decide whether the definitions are met, and their task will be to interpret religion or philosophical belief in a way that accords with the purposes of the legislation. Previous rulings in the UK’s civil courts as to the meaning of ‘religion’ and by the European Convention of Human Rights as to the definition of a ‘belief’ will provide a great deal of help to employers and tribunals as to their true meaning.
Q How has ‘religion’ been defined in the courts?
A The meaning of ‘religion’ depends on the purposes of the statute or other legal instrument in which the word is used. Outside the area of discrimination law, the legal system does have experience in attempting to define religion and establish principles by which to recognise religions, and may provide practical guidance on interpretation.
– Man’s relations with God:
In South Place Ethical Society Barralet and Others v Attorney General and Others [1980] 1 WLR 1565, the court ruled that religion is concerned with man’s relations with God, and that two of the essential attributes of religion are faith and worship; faith in God and worship of that God.
– Belief in a supreme being:
When the Church of Scientology applied for registration as a charity, the charity commissioners concluded that belief in a supreme being was a necessary characteristic of religion.
– Belief in divine ruling powers: Sometimes the courts look to other sources to assist in interpretation, such as dictionary definitions or definitions from a well-respected body or individual. The Oxford English Dictionary defines religion as an ‘action or conduct indicating a belief in, reverence for, and desire to please, a divine ruling power; the exercise or practice of rites or observances implying this… a particular system of faith and worship’.
Putting all this information together, it would appear that there are three essential ingredients necessary to meet the definition of a religion:
– A belief in a ‘supreme’ being
– Worship of that supreme being; and
– A group or following of people who observe the beliefs, values, customs and traditions as set down by that supreme being.
Q How has the European Court of Human Rights (ECHR) defined the term ‘belief’?
A Article 9 of the Human Rights Act – Freedom Of Thought, Conscience And Religion – embodies both an absolute right to freedom of thought, conscience and religion, including freedom to change one’s religion or beliefs, and a qualified right to practise one’s religion or beliefs.
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
The broad approach of Article 9 has enabled the ECHR to accept, in principle, that its protection actually extends to: Druidism, Pacifism, Veganism, The Divine Light of Zentrum, The Church of Scientology, Atheists, and Agnostics.
This does not mean that every individual opinion or preference constitutes a religion or belief. To be a ‘belief’, the views must attain a certain level of cogency, seriousness, cohesion and importance, and in McFeely v UK [1981] 3 EHRR 161, the Commission said that ‘belief’ in Article 9 ‘means more than just ‘mere opinions or deeply held feelings’; there must be a holding of spiritual or philosophical convictions which have an identifiable formal content’.
