All employers should already be aware that treating an employee differently because they are Muslim, Jewish, Christian, black, white etc can result in legal action. But, can you be accused of discriminating against another person’s philosophical belief’s?
“Religious or philosophical belief” is one of the 9 protected characteristics under the Equality Act 2010. And unlike the rest, it can be a difficult one to define. As a result of this, the Employment Tribunal has heard many interesting complaints over the years from disgruntled employees arguing that their beliefs should be protected.
Cases from the past have established that various belief systems may be afforded protection under legislation. This came after the Tribunal held that beliefs in climate change, Rastafarianism and anti-hunting should be protected. Since then, it has been extended further to protect beliefs in higher purposes of public-service broadcasting as well as mediums and their ability to contact the dead.
Yet, there have also been some memorable failures in the system when establishing that a belief meets the foundations for discrimination protection.
For example, a belief that the terrorist attacks of 9/11 and 7/7 were authorised by the British and American Governments and that there was a worldwide media conspiracy, failed on the grounds that upon objective scrutiny, such beliefs were “absurd” and not cogent.
As well as this, a belief that people should wear a remembrance poppy from 2nd November until remembrance Sunday, was not enough to be considered as weighty and substantial to qualify.
Furthermore, the objection made to same-sex couples adopting children was held as a mere opinion and not a philosophical belief.
This blog should help guide employers through this legal minefield.
Direct discrimination occurs when a person is treated less favourably than another person because of a protected characteristic they have or are thought to have.
Discrimination by association
This is applied to age, race, religion or belief, sexual orientation, disability, gender reassignment and sex.
Applies to age, race, religion or belief, sexual orientation, disability, gender reassignment, and sex. This is direct discrimination against an individual because others think they possess a particular protected characteristic. It applies even if the person does not actually possess that characteristic.
Applies to age, race, religion or belief, sex, sexual orientation, marriage and civil partnership, disability and gender reassignment. Indirect discrimination can occur when you have a condition, rule, policy or even a practice in your company that applies to everyone but particularly disadvantages people who share a protected characteristic. Indirect discrimination can be justified if you can show that you acted reasonably in managing your business, i.e. that it is “a proportionate means of achieving a legitimate aim”
What amounts to a philosophical belief under the Equality Act 2010?
In the case of Grainger PLC v Nicholson, the Employment Tribunal set out 5 aspects on how to recognise a philosophical belief and concluded that the belief should be:
• Genuinely held;
• A belief and not just an opinion;
• A belief as to a weighty and substantial aspect of human life and behaviour;
• Sufficiently cogent, serious, cohesive and important;
• A belief that is worth of respect in a democratic society and compatible with human dignity and the fundamental rights of others.
Most employers will already know that they have a duty to prevent discrimination in the workplace. Failure to do so can be costly and result in increased employee turnover and absenteeism, lower employee morale and productivity and high insurance costs.
Employers should take action to prevent discrimination from occurring in the first place. To achieve this, we advise you take the following steps:
(1) Familiarise yourself with all anti-discrimination laws;
(2) Develop and roll out a diverse anti-discrimination policy;
(3) Ensure all staff are sufficiently trained on anti-discrimination;
(4) Be ready to investigate complaints of discrimination or harassment;
(5) Examine all business decisions for unintentional discrimination.
How can Employment Law Services (ELS) help?
If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.