Discrimination on the grounds of religion or belief has been a hot topic over the last ten years and this year is no different. There have been a number of cases that are factually interesting without laying down any particularly new points of law. We do not expect the number of cases to decrease over the coming years and some of these will proceed through the courts and may develop the jurisprudence in this area. Sometimes the area of contention is one where two beliefs appear to be pitted against each other, however, all beliefs are equal in the eyes of the law and should be treated as such. Frequently the issue is whether an act of detriment or dismissal results from an individual’s belief itself, or whether it is because of the way in which the individual manifests that belief. Sometimes the line is clear, but often it is not so. Following a brief overview of the protections available to individuals and their beliefs, we will set out some decisions from this year and last to demonstrate the difference.
“Religion or belief” is a protected characteristic under section 4 of the Equality Act 2010 (“EqA”) and is defined in section 10 as follows:
S10(1) Religion means any religion and a reference to religion includes a reference to a lack of religion.
S10(2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.
S10(3) In relation to the protected characteristic of religion or belief —
(a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular religion or belief;
(b) a reference to persons who share a protected characteristic is a reference to persons who are of the same religion or belief.
Religion means any religion and should be given a broad definition in line with the freedom of thought, conscience and religion guaranteed by Article 9 of the European Convention on Human Rights (“ECHR”). The main limitation on what constitutes a “religion” for the purposes of Article 9 is that it must have a clear structure and belief system.
The reference to “religious belief” is also broad and intended to be interpreted in line with Article 9 of the ECHR. As the Equality and Human Rights Commission’s (“EHRC”) Code states, it goes further than simply a belief about adherence to a religion or its central articles of faith. Belief is subjective, so may vary from person to person within the same religion.
A person does not have to prove that the manifestation of their religion or belief is a core component of the religion or philosophical belief they follow. It may instead be a means by which they choose to express their adherence to their religious belief”.
For a belief, whether religious or philosophical, to qualify for protection under the ECHR it must meet a number of criteria. These were set out by the Employment Appeal Tribunal (“EAT”) in Grainger plc and others v Nicholson (EAT) (“Grainger”). The EAT set out the position as follows:
- The belief must be genuinely held. While it is not the Tribunal’s function to assess the “validity” of a belief by some objective standard, evidence (including cross-examination) may be needed to establish that the belief is genuine.
- It must be a belief, not an opinion or viewpoint based on the present state of information available.
- It must be a belief as to a weighty and substantial aspect of human life and behaviour.
- It must attain a certain level of cogency, seriousness, cohesion and importance.
- It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
- It must “have a similar status or cogency to a religious belief”. However, it need not “allude to a fully-fledged system of thought”.
- It need not be shared by others.
- While “support of a political party” does not of itself amount to a philosophical belief, a belief in a political philosophy or doctrine, such as Socialism, Marxism or free-market Capitalism, might qualify.
- A philosophical belief may be based on science. If Creationism (which is based on faith) is protected, Darwinism (which is based on science) “must plainly be capable of being a philosophical belief”.
Often in cases relating to a religious or philosophical belief the facts are very specific and come down to the exact nature and extent of an individual’s beliefs. This is demonstrated in the following cases:
Philosophical veganism: Casamitjana Costa v League Against Cruel Sports (ET)
The Claimant was an ethical vegan and the Tribunal held that the Claimant’s belief was genuinely held and was more than an opinion or viewpoint. It had a weighty and substantial effect on his everyday life and behaviour. The Claimant only worked in the field of animal protection and avoided relationships with non-vegans. Further, he:
- Ate a 100% vegan diet, avoided foods that could potentially harm animals in their production, such as figs, and would not allow any food or product containing animal products into his home.
- Avoided using products tested on animals, wearing animal-derived products, financial products which invested in companies that carried out animal testing, or using bank notes manufactured using animal products.
- Walked rather than used public transport for journeys under one hour to avoid accidental crashes with wildlife.
The Tribunal held that ethical veganism was without a doubt a belief which obtained a high level of cogency, cohesion and importance. Philosophically, it is rooted in the ancient concept of ahimsa (“not to injure”), an important tenet of Jainism, Hinduism and Buddhism. There was no conflict between veganism and human dignity and ethical veganism did not in any way offend society or conflict with the fundamental rights of others.
Interestingly, this case can be contrasted to the case of Conisbee and Crossley Farms Limited which was decided in 2019.
Mr Conisbee was employed for approximately 5 months before resigning. He alleged discrimination on the ground of religion or belief, his belief being vegetarianism. At a Preliminary Hearing, an Employment Tribunal held that this belief did not qualify for protection under the EqA after applying the established tests in Grainger (above).
Although Mr Conisbee’s vegetarian belief was genuinely held and was worthy of respect in a democratic society, it failed to meet the other legal hurdles for protection:
- It did not concern a weighty and substantial aspect of human life and behaviour: vegetarianism is not about human life and behaviour, it is a lifestyle choice and in Mr Conisbee’s view believing that the world would be a better place if animals were not killed for food.
- It did not attain a certain level of cogency, seriousness, cohesion and importance: the reason for being a vegetarian differs greatly. Vegetarians adopt the practice for many different reasons: lifestyle, health, diet, concern about the way animals are reared for food and personal taste. On this point, the Tribunal contrasted veganism, stating, obiter, that there was a clear cogency and cohesion in vegan belief, on the basis that the belief held by each vegan, and the underlying motivation for veganism, is fundamentally the same.
- It did not have a similar status or cogency to religious beliefs.
Neither decision is binding on other Tribunals but this contrast shows that it is not enough to be simply vegetarian or vegan, a Tribunal will look at the belief system behind the choice and the extent to which that is followed.Christian employee’s beliefs that gender cannot be fluid and that an individual cannot change their biological sex or gender: Higgs v Farmor’s School (ET)
Mrs Higgs is a Christian and was employed as a pastoral administrator and work experience manager by Farmor’s School. In the first of those roles, she was responsible for overseeing students who had been removed from a class for being disruptive.
The school’s head teacher received an email from someone outside of the school making a complaint about Mrs Higgs. The complaint related to a Facebook post which the complainant considered demonstrated that Mrs Higgs held homophobic and prejudiced views against the LGBT community. The relevant post was a reposting of a piece written by another person to which she had added “Please read this! They are brainwashing our children!” and an exhortation to sign a petition. The post related to the teaching in schools of same-sex relationships, same-sex marriage and gender being a matter of choice. The school’s head teacher replied to the email asking the complainant to send him screenshots of any “similarly offensive posts” made by Mrs Higgs. As a result, he was sent a further example of Mrs Higgs’ reposting of an article written by a third party which referred to gender fluidity as a “perverted vision” and that “the LGBT crowd with the assistance of the progressive school systems are destroying the minds of normal children by promoting mental illness”. The complainant also expressed the view that Mrs Higgs seems to find “obnoxious” a category of person that would include several children in the school.
Following an investigation and disciplinary hearing, Mrs Higgs was dismissed for gross misconduct for breaching the school’s conduct policy, including in relation to discrimination and serious inappropriate use of social media. Her internal appeal was unsuccessful.
Mrs Higgs claimed that she had been directly discriminated against and harassed on the ground of religion and that her following beliefs had resulted in her mistreatment:
- Lack of belief in gender fluidity.
- Lack of belief that someone could change their biological sex or gender.
- Belief in marriage as a divinely instituted life-long union between one man and one woman.
- Lack of belief in same-sex marriage. While she recognises the legalisation of same-sex marriage, she believes that this is contrary to Biblical teaching.
- Opposition to sex and relationship education for primary school children.
The Employment Tribunal unanimously held that Mrs Higgs’ beliefs that gender cannot be fluid and that someone cannot change their biological sex or gender were protected beliefs under the EqA 2010. However, she had not been directly discriminated against or harassed because of those beliefs.
Protection of beliefs
The school accepted that Mrs Higgs’ third, fourth and fifth beliefs amounted to religious or philosophical beliefs falling within the protection of the EqA. However, it considered that the first and second beliefs did not qualify for protection because they were not worthy of respect in a democratic society, were incompatible with human dignity and conflicted with the fundamental rights of others, therefore failing the final part of the Grainger test
The Tribunal considered Mrs Higgs’ beliefs in light of her rights under the ECHR. In particular, it considered:
- The Article 8 right to respect for private and family life.
- The Article 9 right to freedom of thought, conscience and religion and to manifest that religion or beliefs.
- The Article 10 right to freedom of expression.
The Tribunal considered that, while the belief that sex and gender are set at birth may be upsetting to some people, if freedom of speech and the rights within Articles 9 and 10 of the ECHR only extended to expressions of belief that would upset no-one, they would be worthless.
It appeared to disagree with previous decisions including Mackereth (below), stating:
to find as the Tribunals did in the cases to which we were referred would amount to a declaration that it is ‘open season’ on people that hold and express the beliefs in question – that they do not deserve protection. That seemed to us to be a strange and somewhat disturbing conclusion”.
The Tribunal concluded that Mrs Higgs’ first and second beliefs that sex and gender cannot be changed did satisfy the final test in Grainger (above) and were therefore protected beliefs under the EqA 2010. This was a case where there was found not to be any discrimination, however. The employee was not dismissed because of the beliefs she held, but rather, because of the way she manifested the beliefs given the job she was employed to do.
This case can be contrasted to the case of Mackereth v The Department for Work and Pensions (ET) where a doctor was found not to have been discriminated against on the grounds of religion or belief for refusing to address transgender patients by their chosen pronoun.
The Tribunal held that the doctor’s particular beliefs that God only created males and females and that a person cannot choose their gender, his lack of belief in transgenderism, and his conscientious objection to transgenderism, were views incompatible with human dignity which conflicted with the fundamental rights of others and so were not protected religious or philosophical beliefs under the EqA.
Mackereth is currently being appealed to the EAT and it is anticipated that Higgs will also be appealed.
What does this mean for you?
It is imperative to treat all individuals fairly and equally as such you should ensure that if it comes into question you try to understand the extent of an individual’s beliefs before taking any action against them as even if you do not agree with them, their beliefs may be protected. Where the issue is the way the individual has acted, rather than the belief itself, it is important to discuss that issue with the employee and to clearly document that distinction in any meeting notes or disciplinary outcome letters to reduce the risk of a successful discrimination claim being pursued. If you are not sure, you should take specific legal advice.
This information is provided for guidance only and should not be considered specific legal advice. If you would like further advice or assistance in respect of any of the topics covered please contact Kelly Gibson on 0114 218 4307 or Kelly.Gibson@tayloremmet.co.uk