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In December 2016, the Equality and Human Rights Commission (EHRC) published its evaluation of the current legal framework on religion or belief, Religion or belief – is the law working? and guidance on key religion or belief topics in the workplace and service delivery.[i] This marked the culmination of a three-year programme of work on religion or belief, which began in October 2013 with the launch of a religion or belief strategy, Shared understandings, which in turn built on previous EHRC research and policy work.[ii] The strategy’s three aims were to improve employers’ understanding and practice; create a more balanced and reasonable public dialogue on religion or belief; and assess the effectiveness of the existing legal framework.[iii] This article describes the methodology used to compile the legal evaluation report and guidance and their key findings and recommendations.
In August 2014, the EHRC launched a major call for evidence on the workplace and service delivery, which was carried out by NatCen Social Research. The aim was to gather evidence about the direct, personal, experiences of employees and service users in relation to religion or belief. The views of employers, service providers, the legal and advice sectors, and other relevant organisations were also sought. Almost 2,500 people responded to the online surveys over a three-month period.[iv] Peter Edge and Lucy Vickers of Oxford Brookes University were also commissioned to carry out a review of the interpretation and effectiveness of equality and human rights law relating to religion or belief which was published in October 2015.[v] In addition, the former Archbishop of Canterbury, Rowan Williams, chaired a series of high-level discussions of religious literacy in different contexts.[vi]
Besides these sources, we also: assessed existing secondary research evidence, including the Commission on Religion and Belief in British Public Life report; established a large stakeholder advisory group, consisting of a wide range of religion or belief groups, employers, academics and others; organised a series of employer roundtables to test the draft guidance; and held a number of meetings with academics and stakeholders to discuss key legal issues.
Religion or belief – is the law working?
Our report explores whether Britain’s equality and human rights legal framework sufficiently protects individuals with a religion or belief and the distinctiveness of religion or belief organisations, while balancing the rights of others protected under the Equality Act 2010. It focused on four questions:
- Is the legal approach to defining a religion or a belief effective?
- Are the Equality Act exceptions allowing religion or belief requirements to influence employment decisions sufficient and appropriate?
- Does the law sufficiently protect employees wishing to manifest a religion or belief at work?
- Does the law sufficiently protect service users and service providers in relation to religion or belief?
We recommended that no change should be made to the broad definition of the protected characteristic of religion or belief in the Equality Act or to the current approach whereby the courts decide whether any particular religion or belief is protected under the Equality Act. However, the definition of the protected characteristic of belief should be clarified through case law.
Equality Act exceptions
“We recommend that no change should be made to the broad definition of the protected characteristic of religion or belief in the Equality Act.”
We recommended that there should be no change to the current occupational exceptions allowed under the Equality Act in employment for employers with an ethos based on religion or belief, or for employment for the purposes of an organised religion. However, with regard to schools with a religious character in England and Wales, the Department for Education should review sections 60 (4) and (5) of the Schools Standards and Framework Act (SSFA). We consider the SSFA provisions are too broad and do not comply with the requirements in the EU Employment Equality Directive Article 4 (2) that the exceptions be legitimate and proportionate.[vii]
Manifestation of belief at work
We recommended that the legal framework should remain unchanged because the existing model of indirect discrimination and the concept of balancing rights in human rights law provide sufficient protection for people manifesting their religion or belief. A duty of reasonable accommodation for religion or belief should not be introduced into law. Moreover, individual employees should not be permitted to opt out of performing part of their contractual work duties due to religion or belief where this would have a potential detrimental or discriminatory impact on others.
Service users and service providers
We recommended that the Equality Act should not be amended to permit religion or belief or sexual orientation discrimination by organisations whose sole or main purpose is commercial. Case law should clarify the required extent of freedom of expression and freedom of thought, conscience and religion in relation to religious organisations and harassment protections covering religion or belief should not be extended to non-employment settings.
The EHRC’s new online guidance for employers consists of: a downloadable guide to the law; a step-by-step approach to properly considering a religion or belief request; and a series of frequently asked questions on key topics, including:
- Do I have to allow employees time off to pray in the workplace during work hours?
- Do I have to agree to an employee’s request not to work on Sundays when our business is open seven days a week?
- Does the workplace canteen need to cater for the food requirements of employees with various religions or beliefs?
In collaboration with Acas and the TUC, the Commission has also prepared online training modules to provide direct advice to line managers and union representatives. Developed with business, the new guidance and training is designed to help managers navigate their way through issues of religion or belief in the workplace and decide the appropriate steps they should take.[viii]
|David Perfect is a Research Manager at the Equality and Human Rights Commission. He specialises on the religion or belief equality strand and runs the EHRC’s Religion or Belief Network. Kathleen Jameson is a Senior Associate at the Equality and Human Rights Commission. Recent projects include guidance and training modules for employers on managing religion or belief in the workplace.
To cite this article, please use the following: Perfect, David & Jameson, Kathleen. (2017)
‘EHRC religion or belief guidance and evaluation of the law’, Public Spirit (January, 2017: http://www.publicspirit.org.uk/?p=4626&preview=true)
[i] These are available at: https://www.equalityhumanrights.com/en/religion-or-belief
[ii] For earlier religion or belief work, see David Perfect, ‘Religion or belief: the work of the Equality and Human Rights Commission’, Public Spirit, 22 October 2013. http://www.publicspirit.org.uk/religion-or-belief/
[iii] Martin Mitchell and Kelsey Beninger, with Alice Donald and Erica Howard, Religion or Belief in the Workplace and Service Delivery. Manchester: Equality and Human Rights Commission, 2015. http://www.equalityhumanrights.com/about-us/our-work/key-projects/your-experiences-religion-or-belief
[iv] Martin Mitchell and Kelsey Beninger, with Alice Donald and Erica Howard, Religion or Belief in the Workplace and Service Delivery. Manchester: Equality and Human Rights Commission, 2015. http://www.equalityhumanrights.com/about-us/our-work/key-projects/your-experiences-religion-or-belief
[v] Peter Edge and Lucy Vickers, Review of Equality and Human Rights Law Relating to Religion or Belief. EHRC Research Report no. 97. Manchester: EHRC, 2015. Available at: http://www.equalityhumanrights.com/publications/our-research/research-reports
[vi] These meetings were organised on behalf of the EHRC by Coexist Foundation.
[vii] There were broadly similar recommendations for schools in Scotland under different legislation.
[viii] The training modules can be found at: https://www.equalityhumanrights.com/en/religion-or-belief