Matters of definition in relation to religion or belief

5. Case law on equality, human rights and religion or belief

5.1 Introduction

This chapter examines domestic case law concerning Article 9 of the European Convention on Human Rights and the law prohibiting discrimination on grounds of religion or belief and debates it has given rise to. It discusses the uncertainty that exists around the definition of „belief‟. It also examines the tendency for Article 9 rights to be construed narrowly in domestic courts, and the consequent debate about the institutional competence of courts and tribunals to rule on matters of religion or belief and to comprehend the significance of religions or beliefs to their adherents.

The chapter also discusses the idea of a duty of „reasonable accommodation‟ for religion or belief in the workplace. This chapter should be read in conjunction with Chapter 6 which focuses on the issue of competing interests relating to religion or belief and the way in which these have played out in law and public debate.

5.2 Matters of definition in relation to religion or belief

The lack of clarity as to what constitutes a religion or belief - and the instability this creates at the heart of the protection provided - arises frequently in legal and academic commentary (Ahdar and Leigh, 2005: 110-24; Griffith, 2007; Knights, 2007: 40-43; Sandberg, 2011a, Chapter 3; Vickers, 2008, Chapter 2).⁸⁵

Under the Equality Act 2010, religion means „any religion‟ and belief means „any religious or philosophical belief‟; the lack of religion or belief is also covered. The European Convention on Human Rights (ECHR) also covers „religion or belief‟. As noted in section 4.2, the European Court of Human Rights (ECtHR) has given a wide interpretation to the meaning of religion or belief. Effectively, the defining boundary is not between religion and belief, but between protected beliefs and those that are too ill-defined to warrant protection.

The Explanatory Notes accompanying the Equality Act 2010 follow Strasbourg jurisprudence in explaining that a „philosophical belief‟ must, among other things,

„attain a certain level of cogency, seriousness, cohesion and importance‟ and be

„worthy of respect in a democratic society‟.⁸⁶ The „respectability‟ requirement appears out of step with the protection for freedom of expression under Article 10 ECHR, which includes speech that offends, shocks or disturbs and not only inoffensive

85 We consider here only human rights law and discrimination law; the definition of religion or belief is also significant in charity and registration law and, for example, in asylum cases. See Sandberg (2011a), Chapter 3.

86 Equality Act 2010 Explanatory Notes, para. 52

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speech.⁸⁷ Vickers (2010: 284-85) recommends removing the respectability hurdle, though respectability might still be a factor in deciding whether discrimination for manifesting a belief is justified.

This is not the only matter of uncertainty. The Explanatory Notes also state that beliefs should relate to „a weighty and substantial aspect of human life and

behaviour‟ in order to warrant protection. As Hepple (2011: 41) notes, this may leave scope for belief in a political philosophy (such as communism or free-market

capitalism) to claim protection, though not a belief in a political party or action. This was a matter of concern for several of our interviewees who noted that, for example, extreme right-wing organisations might seek protection under discrimination law.

Other working definitions exclude this possibility. The British Humanist Association (BHA) (2007a: 8) has proposed the following minimum working definition of „religion or belief‟:

A collective belief that attains a sufficient level of cogency, seriousness, cohesion and importance and that relates the nature of life and the world to morality, values and/or the way its believers should live.⁸⁸

Similarly, Vickers (2010: 285) would limit protection to beliefs which are „more philosophical or religious in nature, in that they relate in some way to the meaning attached to the world or to fundamental aspects of human existence‟. These definitions allow scope for newer and minority religions or beliefs to be protected, along with subjective understandings of religion or belief, though not beliefs held only by individuals or small groups (Bamforth et al., 2008: 890-99).

87 In a case concerning whether corporal punishment was a manifestation of parents‟ and teachers‟ religious belief, the House of Lords was clear that to limit protection only to beliefs which are respectable or of which the court approves is inappropriate: „in matters of human rights the court should not show liberal tolerance only to tolerant liberals‟. See R v Secretary of State for Education and Employment and others, ex parte Williamson [2005] UKHL 15 at para 60.

88 This definition was proposed in relation to charity law as part of the BHA‟s campaign to have the advancement of non-religious beliefs for the public benefit accepted as a charitable object. The Charities Act 2006 specifically recognises that the promotion of religion is a charitable purpose. During the passing of the Act, humanist groups argued unsuccessfully that the promotion of non-religious beliefs should be given the same treatment as religious beliefs under law. After several years of negotiation, in October 2011, the BHA announced that the Charity Commission had allowed it to amend its charitable objects to include the advancement of humanism. See

http://www.humanism.org.uk/news/view/908.

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Domestic case law concerning the definition of belief

Case law in domestic tribunals has established that a belief in a political party is not covered (e.g. those of the British National Party);⁸⁹ however, controversially, belief in man-made climate change is,⁹⁰ as are anti-hunting sentiments,⁹¹ a belief in

spiritualism and life after death,⁹² and a belief that public service broadcasting has the higher purpose of promoting cultural interchange and social cohesion.⁹³ These cases have excited much negative commentary. Vickers (2010: 283) notes that „it becomes difficult to see where boundaries are between the types of belief that should be covered and those that should not‟; for example, if a belief in man-made climate change warrants protection, then so might belief in any other scientifically-grounded theory. Further, the climate change case may have damaging (if

unintended) consequences if applied in other contexts. It could, for example, mean that attempts to combat climate change could be viewed as the promotion of a

„belief‟, and therefore inappropriate for the state or public sector organisations (Vickers, 2010: 283-84). Pitt (2011: 403) notes that the inclusion of all religions and all beliefs within the rubric of a protected characteristic „leads to a real danger of trivialising the equality principle‟.

Concerns about emerging case law on matters of definition were expressed by interviewees affiliated to groups situated in both the „religion‟ and „belief‟ strands.

Some Christian interviewees objected to placing „idiosyncratic‟ views or attitudes contingent on contemporary events on a par with beliefs held for millennia. David Pollock argued from a humanist perspective that recent judgments risked „watering down‟ the concept of religion or belief such as to bring it into disrepute; this might, in turn, provoke a backlash resulting in a diminution of protection for all non-religious beliefs, including humanism.

89 Baggs v Fudge ET Case No. 1400114/2005, 23 March 2005. See also Kelly and others v Unison ET Case No. 2203854-57/08, 28 January 2010, in which the Employment Tribunal found that „philosophical belief‟ did not include „political belief‟, on the basis that the

Employment Equality (Religion or Belief) Regulations 2003 do not protect all political beliefs and opinions (in this case, beliefs based on Marxism/Trotskyism and the Socialist Party).

90 Grainger Plc v Nicholson EAT Case No. 0219/09/ZT, 3 November 2009.

91 Hashman v Milton Park, Dorset Ltd (t/a Orchard Park) ET Case No. 3105555, 4 March 2011.

92 Greater Manchester Police Authority v Power EAT Case No. 0434/09/DA, 12 November 2009.

93 Maistry v BBC ET Case No. 1313142/10, 29 March 2011.

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Interviewees concerned with employment also expressed disquiet about the lack of definitional clarity created by case law. Steve Williams, Head of Equality at Acas, described it as a „problematic‟ area for employers. Simon Langley, National Grid‟s UK Lead Manager for Inclusion and Diversity, argued that the assessment of whether a belief enjoyed legal protection „shouldn‟t be left as a judgment call for employers because judgment calls by definition expose both parties to risk‟. Another equality specialist working for a large private sector employer, who wished to remain anonymous, noted that it was „exceptionally difficult‟ to interpret the definition of

„belief‟: „It‟s a big issue for us; line managers just can‟t get their heads around it‟.

Alan Beazley, an Advice and Policy Specialist with the of the Employers‟ Forum on Belief (now part of the Employers‟ Network for Equality and Inclusion) commented that the „acid tests‟ established through case law for the definition of belief were useful to employers, yet particular judgments had been „surprising‟.

These comments suggest that the criteria set out in the Explanatory Notes to the Equality Act for determining what is a „philosophical belief‟ are either insufficiently known about and/or insufficiently clear. Indeed, the only examples offered in the notes as beliefs that would be excluded are „any cult involved in illegal activities‟ and

„adherence to a particular football team‟.⁹⁴ Other guidance documents deal with the question of definition only briefly (for example, Acas, 2011: 7). Taken as a whole, these concerns suggest the need for more detailed and accessible guidance for decision-makers which might assist them to achieve clarity and consistency in matters of definition of „belief‟.