Law on religion and belief
Labour & European Law Review Weekly Issue 499 07 December 2016
The Equality and Human Rights Commission has published it’s final report as part of its strategy to improve employers understanding and practice in managing religious diversity and assess whether the existing equality and human rights legal framework on religion or belief offers sufficient protection for people with a religious or other belief.
The Report considered whether the definition of religion or belief in the Equality Act 2010 is sufficient. It rejects the idea of having a list of recognised religions on that basis that this could exclude emerging and less well known religions and beliefs.
In terms of balancing rights where there is a conflict between individuals, the EHRC report concludes that the existing indirect discrimination provisions in the Equality Act and human rights law provides sufficient protection for people manifesting religion or belief, for example, in relation to wearing religious dress or symbols, expressing beliefs in and out of the workplace and taking time off. The report concludes that there is no need for an additional duty on employers to accommodate the religious practices of employees on the basis that this would not lead to additional protection. In any event employers should already consider requests made for religious reasons in order to avoid a claim of indirect discrimination.
The report also states “We are strongly of the view that the law should not permit individuals to opt out of work duties to accord with their religion or belief views where this has an actual or potential detrimental or discriminatory impact on others”
The EHRC did not consider that there was any need to change the current exception which allows an employer, that is an organisation with a religion or belief ethos, to require an employee to hold a particular religion or belief where the role and context require it. However, the report recommended that the provisions which allow for voluntary controlled and voluntary aided schools to give preference to people according to their ability and fitness to preserve and develop the religious character of the school or who hold a religious opinion in accordance with the tenets of the school respectively, should be reviewed to ensure that it is compatible with the EU Employment Directive so that any exceptions are both legitimate and proportionate.
The Commission has also published guidance to help managers navigate their way through the issues and decide the appropriate steps to take in certain circumstances. Specifically, it gives guidance on how to deal with requests made by workers in relation to religion and belief, recommending that managers:
- Are consistent in their approach and avoid treating requests from different workers differently
- Ensure they do not treat a worker who has made a request differently to others who have not made a request
- Remember that even if they work for a small employer, they have to treat requests in the same way as they would if they were working for a large employer
- May also be subject to the Public Sector Equality Duty if they work for a public body
Jo Seery of Thompsons Solicitors said “While it is disappointing that it is left to case law to determine what amounts to a belief the guidance is useful for employers who should use this to consult with trade unions about how best to prevent religious and belief discrimination in the workplace.”
To download the report, go to: https://www.equalityhumanrights.com/sites/default/files/religion-or-belief-report-december-2016.pdf
To download the guide, go to: https://www.equalityhumanrights.com/en/religion-or-belief