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Religious  Civil  &  Discrimination  Law
(Discrimination in Employment)

 

On the 1st October 2010 the majority of the provisions of  The Equality Act 2010 came into force. The details are contained in Statutory Instrument 2010 No. 2317.   The 2010 Act unifies all Anti-discrimination legislation and therefore replaces all the anti-discrimination legislation mentioned below.  In theory new Act does not change the law but merely consolidates it into one statute however we shall have to see what happens in practice

Since 1975 it has been illegal to discriminate on the basis of another persons Race or Sex.  These Anti-discrimination laws have applied both to employment and to the provision of goods and services.  There has however been no similar legislation preventing discrimination on the grounds of Religion.  However on the 27th November 2000 the Council of Ministers of the European Union adopted  COUNCIL DIRECTIVE 2000/78/EC   which required all EU member states to introduce legislation making it illegal to discriminate in employment on the grounds of Religion.

As a result of the EU directive on the 2nd December 2003  The Employment Equality (Religion or Belief) Regulations 2003  were brought into force and apply to behaviour FROM that date. The regulations prevent Discrimination on the basis of a persons “religion or belief” which is defined in (Reg 2(1) as

“any religion, religious belief or similar philosophical belief “

This is a definition that is broad enough to cover atheism, “mainstream” religions and also cranks, cults, Satanists, warlocks and believers in the second coming of Elvis.

The regulations closely follow the earlier legislation on Sex and Race Discrimination and deal with both direct and indirect discrimination.  Because of the similarities with the earlier legislation previous cases on Discrimination will be relevant for Tribunals and for employers in deciding whether discrimination has occurred and what level of compensation should be awarded.  

However unlike Race and Sex Discrimination the regulations only apply to discrimination in employment and do not apply to discrimination in the supply of goods and services though the government has indicated that it intends to extend the legislation to cover the supply of goods and services.

The Regulations apply to all areas of employment including recruitment, terms and conditions, promotions, transfers, dismissals and training.   The Regulations make it unlawful on the grounds of religion or belief to: discriminate directly against anyone. That is, to treat them less favourably than others because of their religion or belief.  Indirect discrimination means applying a criterion, provision or practice which without a good reason disadvantages people of a particular religion or belief.

One of the main areas of the legislation which is likely to lead to conflicts and litigation is section 7 subsections 2 & 3 which say

(2) This paragraph applies where, having regard to the nature of the employment or the context in which it is carried out –

(a) being of a particular religion or belief is a genuine and determining occupational requirement;

(b) it is proportionate to apply that requirement in the particular case; and

(c) either -

(i) the person to whom that requirement is applied does not meet it, or

(ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it,

and this paragraph applies whether or not the employer has an ethos based on religion or belief.

 

(3) This paragraph applies where an employer has an ethos based on religion or belief and, having regard to that ethos and to the nature of the employment or the context in which it is carried out -

(a) being of a particular religion or belief is a genuine occupational requirement for the job;

(b) it is proportionate to apply that requirement in the particular case; and

(c) either -

(i) the person to whom that requirement is applied does not meet it, or

(ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it.

How the Regulations will work out in practice remains to be seen.  In particular whether Tribunals will adopt a wide or a narrow interpretation in deciding whether an employer has an ethos based on religion or belief”   

Very useful Guidance on the new regulations has been produced by the organisation Faithworks working in collaboration with the Hindu Forum of Britain, the Muslim Council of Britain, the Network of Sikh Organisations and the United Synagogue and was funded by the Department for Trade and Industry. With the permission of Faithworks PDF copies of these  guidance booklets for individual religious organisations can be downloaded from this site via the following links

Christian,    Muslim,    Jewish,    Hindu,    Sikh,    Buddhist    

Critical to understanding the new legislation is the concept of reasonable accommodation. This means that an employer must seek to accommodate a religious requirement, if otherwise this would result in discrimination, unless the accommodation would result in disproportionate and unjustifiable loss or hardship to the employer. The onus to be reasonable is, therefore, on both the employer and employee.

Though not directly related to the Employment Regulations the case of  Shabina  Begum  v  Denbigh  High  School  may be of assistance in showing how courts will approach questions of reasonableness in cases where the rules of an organisation are alleged to be in conflict with personal  religious principles.  In the case Shabina Begum, a Muslim Schoolgirl, demanded the right to wear a Jilbab whilst the school rules only allowed a Shalwar Kameeze to be worn.  After considering all the actions taken by the school to ensure that their uniform requirements met generally accepted standards for Muslim girls, the Judge held that  the school had acted reasonably.  That approach was approved in a  judgement by the House of Lords  and is likely to be typical of the approach that will be adopted by courts dealing with the tricky problem of how to reconcile conflicting rights and demands.

There are also   Government Guidelines    on the Regulations which Tribunals are likely to examine closely to help them decide on whether the Regulations have been breached or whether a Claimant is simply being oversensitive or unreasonable.

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Contact     NEIL ADDISON     at     Religion Law