Philosophical beliefs

In this issue we report on the Equality Act 2006, which received royal assent on 16 February 2006. Most of the Act is uncontroversial, but tucked away in s.77 are some technical amendments to the Employment Equality (Religion or Belief) Regulations 2003 that could have some serious ramifications.

First, a welcome clarification: a new definition of religion or belief makes it clear that this includes a lack of religion or belief. Agnostics therefore come under the protection of the Regulations.

More of a problem may be caused by the omission of a single word. As originally drafted, the Regulations covered any religion, religious belief or "similar philosophical belief". However, the Equality Act deletes the word "similar". Many atheists may welcome the fact that they do not need to assert that their beliefs resemble religious beliefs - but could there be unfortunate consequences?

The position of British National Party (BNP) activists springs to mind. This is no place to restate our criticisms of the EAT decision in Redfearn v Serco Ltd¹. However, will there be any room for a BNP activist to claim the protection of the religion or belief discrimination legislation? So far, we have only an employment tribunal case - Baggs v Fudge² - in which a religion or belief claim from a BNP activist was rejected. But if a philosophical belief no longer has to be similar in nature to a religious belief, it is surely arguable that the political philosophy of the BNP - or of any political party, for that matter - is protected.

In debating the issue in the House of Lords, the government dismissed such a notion. It quoted the European Court of Human Rights (ECHR) decision in Campbell and Cosans v United Kingdom³, which concerned the rights of parents to ensure their children's education conforms with the parents' "philosophical convictions" under one of the protocols to the European Convention on Human Rights.

The Court held that the expression "philosophical convictions" denoted "such convictions as are worthy of respect in a 'democratic society'" and which are "not incompatible with human dignity". However, in doing so, it was taking a wide view of the term and holding that there was a breach of human rights when a school sought to impose corporal punishment on a child against the wishes of the parents. The Court was persuaded that the parents' views related "to a weighty and substantial aspect of human life and behaviour".

It is not immediately obvious that the approach of the ECHR would exclude extreme political views from protection. Nor is it certain that the domestic courts would look to the ECHR to help them define "philosophical belief". The government said, as the Act was debated, that the word "similar" was deleted because "it was not needed". However, its confidence that the word did not have a significant effect on the impact of the law may prove to be misplaced.

Whatever the final outcome, both employers and employees benefit from certainty and clarity in discrimination law - and both of these are in short supply as it is. If the government intended that "political" philosophies should not fall within the scope of religion or belief discrimination, it does not seem too much to ask that the Equality Act should say so.

Speaking of certainty and clarity, the Equality Act also "clarifies" whose religion or belief is important when deciding whether there has been discrimination. A new reg. 3(1)(a) in the Employment Equality (Religion or Belief) Regulations 2003 provides that discrimination occurs when: "on the grounds of the religion or belief of B or of any other person except A (whether or not it is also A's religion or belief) A treats B less favourably than he treats or would treat other persons". So that's cleared that up then!

There must be a more intelligible way of drafting this provision.

See The Equality Act 2006 - it's measures in detail for more.

¹[2005] IRLR 744
²ET/1400114/05
³4 EHRR 293