more on philosophical beliefs

Posted on November 23, 2011 by Martin Malone

There seems to be a never ending stream of cases in tribunals at the moment concerning whether claims for discriminatory treatment on the ground of philosophical belief should proceed. In our October 2011 newsletter we examined some of the recent case law on the ever shifting limits of what may qualify as a philosophical belief. A Watford employment tribunal has now very lightly put the brakes on.

In Lisk v Shield Guardian Co Ltd, the subject matter was a topical one. Mr Lisk, an ex serviceman, objected when he was asked by his employer, Shield Guardian, to remove his poppy at work and he submitted claims for direct discrimination and harassment on the protected ground of philosophical belief. A pre hearing review was listed to determine whether the "poppy incident" claim should proceed. Continue reading →

just how far can the concept of philosophical beliefs extend?

Posted on October 26, 2011 by Martin Malone

As originally drafted, the Employment Equality (Religion or Belief) Regulations 2003 prohibited discrimination on grounds of religion or "similar" philosophical beliefs.

Then the Equality Act 2006 removed the requirement for such similarity, and extended the protection to any philosophical belief: the Equality Act 2010 s.10 continues with that wide definition.

Removal of just one word dramatically increased the potential for seeking protection from discrimination on a whole range of lifestyles, ideas and practices. As we’ve reported on many occasions it is fair to say that, over recent years, claimants have put forward quite an esoteric mix of possible candidates, and establishing whether these actually amount to a protected philosophical belief is becoming a standard pre-hearing review issue for employment tribunals. Continue reading →

indirect discrimination justified by expense alone

Posted on September 26, 2011 by Martin Malone

The recent case of Cherfi -v- G4S Security Services Limited has provided the Employment Appeal Tribunal (EAT) with an opportunity to consider whether indirect discrimination can be justified on the ground of cost alone.

Mr Cherfi worked as a security guard at a site in Highgate from 2005. He regularly took time off work on Friday (paid) lunchtimes to attend prayers at a mosque. In 2008 his employer told him that he could no longer do so because there was a contractual obligation to keep a minimum number of guards on site during operating hours. He was offered a changed working pattern, working Mondays to Thursdays and alternating Saturdays and Sundays so that he could take Friday as a day off. Mr Cherti refused this offer. Instead, he took time off for sick leave, annual leave or authorised unpaid leave. Continue reading →

religious discrimination

Posted on August 14, 2011 by Martin Malone

It seems that the Equality and Human Rights Commission agrees with the many Christians who believe that courts and tribunals “have interpreted the law too narrowly in religion or belief discrimination claims”.

In a Press Release issued on 11 July 2011 the Commission says that it is concerned that “rulings already made by UK and European courts have created a body of confusing and contradictory case law. For example, some Christians wanting to display religious symbols in the workplace have lost their legal claim so are not allowed to wear a cross, while others have been allowed to after reaching a compromise with their employer”. The Commission is at pains to point out that it is not supporting only Christians in this context – one example it gives is that of a Jew who asks not to have to work on a Saturday for religious reasons. Continue reading →

Yet more on what constitutes a “philosophical belief” in the context of discrimination

Posted on April 18, 2011 by Martin Malone

I have written on numerous occasions about the sometimes odd and unexpected practical applications of the Religion and Belief Regulations (now incorporated within the Equality Act).

This month has seen another and some would say rather tenuous interpretation of what constitutes a protected philosophical belief. Mr Devan Maistry worked for the BBC and presented complaints to an employment tribunal alleging discrimination based on his age and his belief that “public service broadcasting has the higher purpose of promoting cultural interchange and social cohesion”.

At a preliminary hearing the tribunal had no difficulty in finding that Mr Maistry had a genuine belief in the “higher purpose” of the BBC. Perhaps more surprisingly the tribunal was also willing to accept that this constituted a philosophical belief capable of protection under discrimination legislation.

I am bound to observe that this latest in a series of similar decisions makes one wonder where the limits will be drawn when considering such matters. It is hard to imagine that the legislators had this type of scenario in mind when approving legislation to provide protection against discrimination primarily on religious grounds. Belief systems can be undertood to encompass religion, world view, philosophy, ideology or even “life stance” (for more on the latter read here).

I should make clear that I do not think that either Mr Maistry or those advising him are wrong in their approach to the claim based on current law. However I do question whether this is a legitimate area for statutory protection from discrimination. It is easy to see how many employees could have very strong views about the purpose and importance of the work that they do, e.g. teachers, doctors, lawyers, charity workers etc., but does that really mean that all should have a potential route to legal redress based on discrimination? There is also the troubling aspect of those whose philosophical beliefs are at the edges or perhaps beyond those which are acceptable to society as a whole. Presumably they should be entitled to similar protection? Perhaps the ultimate irony would be discrimination law coming to the protection of someone whose beliefs are profoundly discriminatory. Based on current case law, this is entirely conceivable and more or less inevitable. Yet again it seems that the best of intentions could result in a wholly unintended and unwanted outcome.

Dismissal for religious belief or how that belief is manifested?

Posted on January 26, 2011 by Martin Malone

The Equality (Religion and Belief) Regulations 2003 (now part of the Equality Act 2010) were introduced, as the name suggests, to protect against discrimination on the grounds of religion or a belief system.

In Power -v- Greater Manchester Police Authority the Employment Appeal Tribunal considered the dismissal of Mr Power, a committed spiritualist, who worked as a Special Constabulary Trainer. Shortly after he started his job his employers discovered that police officers had complained that, in his previous work, he had been disruptive and unhelpful on training courses and that he had been distributing CDs and posters about spiritualism.

He was called to a meeting with an HR manager following which he received a letter notifying him that his employment was terminated with immediate effect. The letter included the following:

Information has come to light regarding previous work with Neighbouring Forces and your current work in the psychic field which is not compatible with employment in Greater Manchester Police. I can confirm that if this information had been made available to us prior to you joining the force as a member of police staff, we would not have offered you employment.”

Mr Power presented a complaint of discrimination to an employment tribunal and lost. The tribunal found that he was dismissed not because of the beliefs he held but because his previous conduct showed that he was unsuitable to train police officers and the distribution of the CDs and posters, although related to his beliefs, was an unacceptable way of expressing those beliefs. Incidentally, it is interesting to note that this is not quite what the letter of dismissal says as shown above. However, when he appealed against his dismissal he was told that the phrase “work in the psychic field” referred not to the belief held by him “but on the basis that the material [distributed] was inappropriate”. The distinction is critical because, on appeal, the EAT agreed with the employment tribunal and confirmed that Mr Power was dismissed, not because he was a spiritualist and did work in the psychic field, but because of how he manifested his beliefs by distributing the material.

Did it make any difference that the belief in question was spiritualism? That issue is not addressed in the decision but it would be interesting to see how the activities of an evangelical Christian might be regarded in similar circumstances. Such an individual would be expected, as part of his or her belief, to “spread the word” with a view to encouraging people, presumably including those encountered in the workplace, to become fellow evangelical Christians. The word evangelism is derived from the Greek words to announce good news, bring a good message or preach the Gospel.

Yet again the application of the Regulations (now within the Act) brings with it the uncomfortable overlap between moral questions, including those concerning freedom of expression of faith, and application of the law in a largely secular society.

newsletter – discrimination: religion or belief

Posted on December 20, 2010 by Martin Malone

Along with the rest of British anti-discrimination law the Employment Equality (Religion or Belief) Regulations 2003 were replaced by the Equality Act 2010 with effect from 1 October 2010. Reflecting changes originally made in 2007, the new wording ensures that any philosophical belief is covered whether or not it is “similar” to a religious belief.

This has recently produced some interesting discussion (and litigation).

The Employment Appeal Tribunal confirmed in October that there is an important distinction between “a person’s beliefs” and “manifestation of those beliefs”. In the case in question a spiritualist policeman employed as a Special Constabulary Trainer had a genuine belief that psychics could help solve criminal investigations. He distributed CDs and posters relating to spiritualism. Greater Manchester Police, for whom he worked, dismissed him, saying that his “work in the psychic field” was incompatible with his employment by them. He brought a discrimination claim against the Police but lost before an employment tribunal and again on appeal to the EAT on the basis that the protection provided by the law is simply against detrimental treatment because of “belief”. The EAT held that in this case the detrimental treatment (dismissal) was not because of the belief but was because of the way that belief was manifested, which is not protected (Power v Greater Manchester Police Authority, EAT on 8th October 2010).

The distinction between “belief” and “manifestation of belief” is a fine one. In other circumstances it would be interesting to consider whether the wearing of a Burka by a Muslim woman at work would count as an integral part of her “belief” (protected by the law) or as a “manifestation of her belief” (unprotected).

Other cases have concentrated on whether a particular belief amounted to a “philosophical” belief, testing the limits of relevant law. One such case, concerned with whether a belief that “mankind is headed towards catastrophic climate change” is protected, has been decided. The other, concerned with whether a belief in animal rights, in particular opposition to hunting, is protected is still ongoing.

In the first of these two cases, a person of strong green views, Tim Nicholson, was made redundant from his job as “head of sustainability” at Grainger plc. He claimed that he had been unable to work out the carbon footprint of his employers because staff had refused to give him the necessary data and that as a result he had been unable to set up a carbon management system for the company. He also claimed that the chief executive had once flown a member of staff to Ireland to deliver his Blackberry which he had left in London and had showed ”contempt” for his concerns. The employer argued that “What Mr Nicholson asserts is a scientific claim that if we don’t urgently cut carbon emissions, we will not avoid catastrophic climate change. There is nothing philosophical about that“. The EAT dismissed this argument and accepted that Mr Nicholson’s beliefs were “capable” of amounting to a ”philosophical belief”. The EAT remitted the case back to the original tribunal to decide on the evidence whether in Mr Nicholson’s particular case the belief attained “a certain level of cogency, seriousness, cohesion and importance” which is ”worthy of respect in a democratic society, [would] be not incompatible with human dignity and not conflict with the fundamental rights of others” (Grainger plc v Nicholson EAT on 3rd November 2009).

The Nicholson case was eventually settled out of court so the question posed by the EAT was never answered. However the principle was established and it is now clear that subjecting an employee to a detriment because of his or her strong green views can be unlawful discrimination.

In the second case an animal rights campaigner, Joe Hashman, claims he was dismissed from his job at the Orchard Park Garden Centre, Gillingham because of his beliefs. He has previously brought, and won, a case in the European Court of Human Rights concerning disruption of a fox hunt. In the present case Mr Hashman was dismissed from his job shortly after he had given evidence which helped convict Clarissa Dickson Wright of “Two Fat Ladies” fame of attending an illegal hare coursing event in Yorkshire in 2007. His employers are hunt supporters and he claims that their disapproval of his belief in animal rights was the main reason for his dismissal. The employers say his dismissal had nothing to do with his opposition to hunting and that anyway his beliefs could not amount to a “philosophical belief” for the purposes of the relevant anti-discrimination law. That case is still ongoing. A preliminary hearing has been fixed for January 2011 when no doubt the basic question noted above will be resolved by an employment tribunal. So watch this space!

all Ismaili arbitration panel unlawful under Religion or Belief Regulations

Posted on June 23, 2010 by Martin Malone

Although not at first glance an employment law matter, the recent Court of Appeal decision in Jivraj -v- Hashwani is an interesting example of the application of the Employment Equality (Religion or Belief) Regulations 2003.

The parties entered into a commercial contract which included an arbitration clause requiring arbitrators to come from a certain religious group. The clause required one appointment from each party and the third to be the President of HH Aga Khan National Council for the United Kingdom. It was further stipulated that all arbitrators should be “respected members of the Ismaili community and holders of high office within the community”. One of the parties sought to have an arbitrator appointed who was not a member of the community. The other party then sought the appointment of a sole arbitrator under the Arbitration Act 1996 because the subsequent introduction of the Religion or Belief Regulations had rendered the “Ismaili only” stipulation invalid.

In the High Court Mr Justice David Steel took the view that arbitrators are not employees and therefore the apointment of the sole arbitrator under the 1996 Act was invalid. He also took the view that even if arbitrators were subject to the 2003 Regulations they would be exempt on the basis of a “genuine occupational requirement” that the arbitrators should be Ismailis.

The Court of Appeal took a different approach but achieved (at least in part) the same result. It was held that an arbitrator is employed by a person to provide a service. “Employment” under the Regulations includes any contract personally to do any work and work covers the provision of services of any kind. Consequently, arbitrators are employees in this sense and therefore subject to the Regulations. Incidentally, in this context it made no difference whether arbitrators are employed or self-employed in the tax sense; they are still employees within the meaning of the Regulations.

Because membership of the Ismaili community was clearly not a necessary qualification in order to act as an arbitrator, the “genuine occupational requirement” exception could not be effectively invoked. Consequently, the arbitration clause fell foul of the 2003 Regulations and failed in its entirety. However, the appointent of the sole arbitrator under the 1996 Act was also invalid so the result was effectively the same.

There are two important matters highlighted by this decision. First, the imposition of a religious qualification to perform a function, even if it falls outside the scope of regular employment, renders the performance of that function liable to an effective challenge under the Regulations. Perhaps the most obvious example is a recruitment panel for the appointment of a teacher. Evidently, a panel deliberately made up of members of one faith would breach the Regulations. However, applying the same principle, any stipulation based on faith would in such circumstances place the legitimacy of the panel to perform its function at risk. For example, even the appointment of one person (for example, the parish priest) if that person was appointed on the basis of his or her religion could invalidate the entire panel as an effective decision-making body. There is obviously scope for a good deal of litigation resulting from this.

Second, the decision shows just how widely the Regulations (and, by implication, most other equality / anti-discrimination legislation) can be applied. The interpretation of what constitutes “employment” as applied in this case is one of the widest ever seen and opens up all manner of day-to-day functions to protection under the Regulations. It is to be expected that we will see some very imaginative applications of the Regulations and consequent claims in coming months. The issue is also likely to cause further friction between secular and religious bodies which has already been a lively issue in 2010 as reported in earlier blog posts.

You can read the Court of Appeal decision which was delivered on 22 June here.