Is lack of belief protected?

The Employment Equality (Religion or Belief) Regulations 2003 make it unlawful to discriminate on grounds of "religion or belief", defined as "any religion, religious belief, or similar philosophical belief".

In Britain, discrimination on grounds of religion or belief often takes the form of discrimination in favour of co-religionists or someone who shares the discriminator's particular belief rather than against someone because they are of a particular religion or espouse a particular belief.

If a Christian employer, for instance, decides that it will only employ someone who is Christian, can those who were turned down because they were not Christian claim that they were discriminated against because of their religious belief? Does it make a difference whether those who were turned down hold a particular religious or philosophical belief, or does the protection of the law extend to those who have no particular beliefs or who are uncertain?

If the Regulations do not protect those who are discriminated against because they do not hold a particular belief, there is a major gap in the statutory protection. Not being of a particular religion or belief is only supposed to be a potential ground for discrimination where a comparatively narrowly drawn genuine occupational requirement applies.

The Regulations do not expressly provide that absence of belief is covered. It is clear, however, that the government intended to protect non-believers against discrimination on grounds of their absence of belief. The ACAS guide for employers and employees, Religion or belief and the workplace, unequivocally takes the position that the Regulations cover those who are not religious or who do not subscribe to a particular belief. In discussing the meaning of "religion or belief", the guidance says: "The Regulations also cover those without religious or similar beliefs."

The Department of Trade and Industry's (DTI) explanatory notes (www.dti.gov.uk/er/equality/so_rb_longexplan.pdf), issued when the Regulations came into force at the beginning of December, take the same position and explain the government's reasoning in more detail: "references to 'religious belief' and 'similar philosophical belief' include reference to an individual's belief structure involving the absence of particular beliefs because these are two sides of the same coin . . . For example, if a Christian employer refuses an individual a job because he is not Christian, regardless of whether he is Muslim, Hindu, atheist (etc), that would be direct discrimination on grounds of the individual's religious belief, which can be described as 'non-Christian'. It is not necessary to identify the individual as an atheist or a Hindu for the purposes of the Regulations in such circumstances if he can be identified as a 'non-Christian'. The same is true of persons who might describe themselves as 'unconcerned' by religious beliefs, or 'unsure' of them."

Yet it is difficult to reconcile the DTI's reasoning on this point with the guidance it gives as to the meaning of a "religion or belief" in the Regulations. In explaining which philosophical beliefs are now protected, the DTI says that the phrase "similar philosophical belief" "does not include any philosophical or political belief unless it is similar to a religious belief". According to the DTI: "That does not mean that a belief must include faith in a god/gods or worship of a god/gods to be 'similar' to a religious belief. It means that the belief in question should be a profound belief affecting a person's way of life or perception of the world. Effectively, the belief should occupy a place in the person's life parallel to that filled by the god/gods of those holding a particular religious belief."

Where does that leave non-believers? Using this test, it is hard to see how "non-Christian" can be a "religious belief", let alone how "unsure" or "don't know" can be regarded as a "profound belief affecting a person's way of life or perception of the world".

Because the legislation was introduced by way of Regulations, it could not be amended when it became apparent that this was a serious source of concern. Whether absence of belief was protected was one of the key issues probed during the House of Lords debate on the Regulations on 17 June 2003. The government spokesman Lord Sainsbury said that: "It is clearly the intention that where people have strongly held views, which include humanism, or atheism or agnosticism, they would be covered under the phrase 'or similar philosophical belief'." Yet this is a rather different point, which far from providing Parliamentary support for the proposition that discrimination on grounds of non-belief is covered, tends to undermine the argument: it is clear that the Regulations cover someone who is discriminated against because of their strongly held belief, such as atheism. What is not clear is whether the Regulations cover someone who is discriminated against because of their weakly held view, ie who is "unsure" or, more importantly, whether they cover someone who is discriminated against because they do not share the discriminator's religious views.

In practice, the problem of absence of belief could have been avoided if the wording of the consultative draft Regulations on religion or belief had not been altered. Because the definition of direct discrimination simply refers to less favourable treatment "on grounds of religion or belief", the definition, on its own, would allow a claim where the discrimination was on grounds of the religion or belief of A, the discriminator, as well as where it was on grounds of B's religion or belief. That would have clearly covered the situation where an employer discriminates on grounds of religion in favour of his or her co-religionists.

However, as we pointed out in Consultative draft discrimination Regulations: an EOR guide , it may well also have covered a situation where an employer, because of his or her religious beliefs, discriminates against someone because of their sexual orientation. This is clearly potentially actionable under the Sexual Orientation Regulations, because it is B's sexual orientation that leads to her or him being treated less favourably than someone of a different sexual orientation. But the government took a late decision to permit such discrimination in certain circumstances by adding a genuine occupational requirement exclusion to the Sexual Orientation Regulations. It then also added a further provision to the Religion or Belief Regulations, reg. 3(2), which stipulates that the reference to discrimination on grounds of religion or belief "does not include A's religion or belief", ie the religion or belief of the discriminator.

This means that it is not open to an applicant to argue that they have been discriminated against because of the employer's religion or belief. Instead, the tribunal will have to accept the government's view that an applicant will still be protected in a such a case because there is no legal difference between being discriminated against because of the discriminator's religion or belief and being discriminated against because the applicant did not share that religion or belief. If there is a legal difference, it will drive a coach and horses through the legislation because employers will be able to say that discrimination against those who do not share their own religion or belief falls outside the scope of the Regulations.

When a tribunal or court comes to decide this issue, it will be confronted with two directly analogous areas where the government has legislated in respect of discrimination on grounds of religion or belief. Section 57(2) of the Fair Employment (Northern Ireland) Act 1976 provides: "In this Act, references to a person's religious belief or political opinion include references to his supposed religious belief or political opinion and to the absence or supposed absence of any, or any particular, religious belief or political opinion." Similarly, s.39 of the Anti-terrorism, Crime and Security Act 2001, which created the offence of religiously aggravated harassment, defines "religious group" as meaning "a group of persons defined by reference to religious belief or lack of religious belief".

The fact that the drafters of the Religion or Belief Regulations did not choose to follow similar language will be a powerful argument that the 2003 Regulations do not cover absence or lack of belief. It will take a liberal interpretation to overcome this. Better drafting could have avoided this uncertainty.

This article is adapted from Michael Rubenstein, Discrimination: The new law: a guide to the new Regulations on race, religion or belief, sexual orientation and disability. A Harvey Special Report. Available from LexisNexis customer services (0)20 8662 2000. Price £80.