Religious discrimination: questions and answers

Joanne Kavanagh of Rawlison Butler answers some frequently asked questions on the new Employment Equality (Religion or Belief) Regulations 2003, which come into force on 2 December 2003.

What is meant by religion or belief?

The Employment Equality (Religion or Belief) Regulations 2003 state that 'religion or belief' means any religion, religious belief or similar philosophical belief, but there is no explicit definition of any of these terms. The Government's Explanatory Memorandum on the Regulations, which does not have legal force, goes on to say that the courts and tribunals may consider a number of factors when deciding what a 'religion or belief' is, and it gives examples of collective worship, a clear belief system or a profound belief affecting a way of life.

'Religion or belief' is, therefore, unlikely to include purely political beliefs or single-issue beliefs such as anti-European-Unionism; unless they form part of a wider belief system.

In most cases it will be clear what is or is not a religion or similar belief. However, there will be areas where there is uncertainty and where we shall have to await tribunal decisions for clarification. For example, the question of whether the stated faith is a religion or belief at all may arise in the case of more unconventional beliefs that are not generally recognised. Another area of concern to employers will be where an employee claims that a rather extreme activity is a manifestation of his or her claimed religion or belief. Many religions run the spectrum from liberal to more fundamentalist beliefs and the majority of followers of the relevant religion may not agree that a particular extremist activity falls within it.

Whose religion or belief is at issue - it is that of the discriminator or that of the person against whom the discrimination is directed?

Discrimination occurs where a person is treated less favourably 'on grounds of religion or belief'. The Employment Equality (Religion or Belief) Regulations 2003 expressly exclude from this discrimination on the grounds of the discriminator's religion or belief, making these Regulations consistent with the sex and race discrimination legislation, which protects the victim's sex or race.

However, by excluding these grounds for discrimination it could be left open to an employer with a particular religion or belief to treat an employee not of that religion or belief detrimentally. This is an issue that may be considered at tribunal if, for example, a Catholic employee is discriminated against because of the fact that he or she is not a Muslim. The employee may be able to argue that he or she has been discriminated against on the grounds of his or her own religion - but people in this situation who are not of any religion or belief may not be so protected!

Is it only discrimination because of the victim's own religion or belief that is unlawful?

No, unlawful direct discrimination includes the situation where the victim is directly discriminated against because he or she associates with a person of a particular religion or belief. It will also extend to discrimination because of an employee refusing to obey his or her employer's instruction to discriminate against people of a particular religion or belief. Finally, it includes the situation where the direct discrimination is because of the discriminator's perception of the victim's religion or belief, whether or not this perception is correct.

Next week's article will look at the main religions and beliefs followed in this country and provide guidance on their practices and observances.

Joanne Kavanagh is a solicitor in the Employment Team at Rawlison Butler (jkavanagh@rawlisonbutler.com)
Further information on Rawlison Butler can be accessed at www.rawlisonbutler.com