Religion and politics are topics on which people tend to have strong, and sometimes conflicting, views. If one person's views, beliefs and customs are not respected by others, this can lead to discrimination or harassment. Up to now, freedom from discrimination on religious grounds in the workplace has only been protected indirectly through the Race Relations Act 1976 and the Human Rights Act 1998. These have afforded some protection, but limitations on their scope have restricted their effectiveness.
In December this year, the Employment Equality (Religion and Belief) Regulations 2003 will come into force, directly targeting discrimination on the grounds of religion and belief in the workplace for the first time. But it may still be difficult for employers to draw distinctions between religion and politics, and to balance the freedom to express belief against the rights of other employees and the sensitivities of clients and customers in the light of the new regulations.
Distinguishing religion and politics
One of the central problems is deciding whether the expression of opinion is covered by the regulations. The regulations will make discrimination and harassment on the grounds of religion, religious belief or similar philosophical belief unlawful, but do not define the concepts of religion and belief. The explanatory notes to the regulations expressly exclude “any philosophical or political belief unless that belief is similar to religious belief”, but this will still leave employers with much uncertainty. What is a religion? Where is the dividing line between religion and politics? What does “similar to religious belief” mean?
It will be left to the courts to define these concepts in the context of the regulations, but the case law on the interpretation of religion and belief under Article 9 of the European Convention on Human Rights (ECHR) may prove influential. The ECHR has been interpreted to include a right not to believe and a right to hold unconventional beliefs. It has been slow to circumscribe what may or may not be regarded as a matter of religion or belief, but it has excluded political or ideological beliefs such as the legalisation of drugs or animal liberation. The European Court of Human Rights has been more restrictive where the matter concerns the manifestation of belief than when deciding what constitutes a belief in itself.
In reality, it may be difficult to distinguish religious and political beliefs. Many political conflicts contain religious elements, particularly given the instability in the Middle East and the rise of international terrorism. Could outspoken criticism of the Israelis in the workplace be considered discrimination against Jewish employees? Is a Muslim who expresses support for Al-Qaeda's jihad against the West protected from suffering less favourable treatment as a result of their religion? In such cases, employers may find it extremely difficult to decide whether the employee is covered by the regulations.
Conflicts of interest
Where the expression of belief falls within the legislation, employers will need to act with care in order to protect themselves from a potential discrimination claim. Under the ECHR, free expression of religion is protected under Article 9 and freedom of speech under Article 10. One of the most difficult situations employers may face is where the expression of religious
views proves offensive to others, or may lead to discrimination against other groups or religions. For example, some religions have particular views about the role of women, sexual orientation and disability. There may also be a clash of belief between members of different religious faiths.
Employers could find themselves walking a tightrope between avoiding claims under the regulations and maintaining harmony more generally within the workplace and with the company's customers or clients. Attempts to discipline an employee expressing controversial views in the name of religion may lead to accusations of religious discrimination under the regulations and Articles 9 and 10 of the ECHR. However, the employer could be vicariously liable if such comments amounted to harassment of other employees. There could also be a commercial impact if unchecked controversial remarks were allowed to offend staff, customers and clients.
It is unlikely that the right to manifest religious belief would extend to prejudicing another person's rights, as the exercise of all such rights must be proportionate and balanced against the competing rights of other parties; but employers wishing to avoid discrimination claims should work to minimise the risks and to handle all cases with sensitivity.
Clearly, the regulations seek to exclude discrimination on the grounds of political persuasion. An employer may be faced with a difficult balancing exercise between preserving an employee's right to freedom of speech and preventing complaints from other employees about being subject to discriminatory treatment on account of their religious beliefs. There will be occasions when an employer is required to take disciplinary action as a result of an employee's political or religious views. For example, the BNP's policies on immigration and asylum seekers are likely to be regarded as offensive by some employees. However, an employment tribunal recently held that a member of Aslef had been unfairly expelled from the union as a result of him standing for the BNP in local elections and campaigning on its behalf. This decision was based on legislation protecting union members from being expelled on the grounds of their political memberships.
It is debatable whether a similar decision would be reached in the event of the dismissal of an employee who had undertaken such activities on the BNP's behalf. The fairness of a dismissal in these circumstances is likely to depend on whether the employee undertook activities on the BNP's behalf during his or her working hours, or while obviously identifiable as an employee of the company concerned.
The difficulties raised mean that employers will face potential exposure to claims if they do not take appropriate steps to deal with religious tensions in the workplace. By adopting a policy of endorsing cultural sensitivity, employers should be able to minimise the risk of such claims succeeding. This will include promoting flexibility in dress codes, accommodating dietary requirements and flexibility for religious observance. Such a policy should provide training to employees on developing a mutual understanding and respect for other people's beliefs. Employers should make it clear that comments that offend people of other faiths will not be tolerated. Many employers who have not already taken measures in this area will look to expand their existing equal opportunities policies to include respect for employees' religious beliefs.
Given the uncertainty about the scope of the regulations, employers need to be aware of the issues and proactively promote religious tolerance in the workplace.
Richard Nicolle is a senior employment solicitor at Denton Wilde Sapte