Religion or belief and the law

David Perfect David Perfect

This article features in Public Spirit’s special theme on Equalities and Religious Difference

The Equality and Human Rights Commission (EHRC) came into being in 2007 and has since had responsibility for the promotion and enforcement of equality and anti-discrimination laws relating to characteristics such as ethnicity, disability, gender and religion. Here David Perfect outlines the Commission’s work in the area of religion and belief, describing some of its research, and legal work and the responses made by religious and secular organisations.

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Established in 2007, the Equality and Human Rights Commission (EHRC) is responsible by law for seven equality strands (age, disability, gender, race, religion or belief, sexual orientation and transgender) as well as for the protected characteristics of pregnancy and maternity, and has been a National Human Rights Institution since 2009.[1]  Its religion or belief work encompasses legal interventions, research and policy and guidance work. In this article, these are examined in turn after a brief discussion of the underlying legal context.

Legal context

As noted by Alice Donald, ‘The law in relation to equality, human rights and religion or belief is relatively new and is far from settled or uncontested.’[2] Not until 2003 did the Employment Equality (Religion or Belief) Regulations first address religious discrimination and harassment on grounds of religion or belief and then only in employment and vocational training. The 2006 Equality Act extended this to cover the provision of goods and services, while the 2010 Equality Act, as well as consolidating existing legislation, established the Public Sector Equality Duty (PSED), which came into force in April 2011. The PSED requires public authorities to pay due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations. While some have welcomed the PSED’s potential to address persistent disadvantage among particular religion or belief groups, others have opposed it on principle or for pragmatic reasons.[3] Meanwhile, the Human Rights Act of 1998 had introduced the right of freedom of thought, conscience and religion (Article 9 of the European Convention of Human Rights) into the UK from 2000. Under Article 9(1), there is an absolute right to hold a religion or belief and a qualified right to manifest this in worship, teaching, practice and observance, while Article 9(2) states that the freedom to manifest a religion or belief is subject to ‘necessary’ limitations.[4]

Legal interventions

Under Section 28 of the 2010 Equality Act, the EHRC has the power to assist an individual who is a party to legal proceedings involving equality legislation, for example by providing legal advice or representation. Under Section 30, the EHRC can apply to the relevant court to become a party to proceedings involving equality or human rights issues, typically by providing a formal submission.

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“As noted by Alice Donald, ‘The law in relation to equality, human rights and religion or belief is relatively new and is far from settled or uncontested.’”

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The EHRC has supported several legal cases directly. The most important involved Martyn Hall and Steve Preddy, civil partners who were denied the use of a double room they had previously booked online by the owners of a small hotel in Cornwall, Peter and Hazel-Mary Bull; the Bulls argued that it was against their Christian beliefs to allow unmarried couples (heterosexual or homosexual) to share a room. The EHRC funded and led the successful discrimination claim that Hall and Preddy took at the County Court in 2011; they also funded their defence when the Bulls unsuccessfully appealed to the Court of Appeal in 2012.[5] More recently, the EHRC supported a gay couple, Michael Black and John Morgan when the owner, Susanne Wilkinson, refused to allow them to stay in a double room in her bed and breakfast accommodation because of her Christian beliefs; the Court of Appeal decided that Ms Wilkinson had discriminated against them in July 2013.[6] The Supreme Court heard the appeal by the Bulls in October 2013 and the judgment is awaited; Ms Wilkinson did not, in the end, appeal.

Much more commonly, the EHRC has made expert submissions to the Courts. In one example, the EHRC intervened after Owen and Eunice Johns, Pentecostalist Christians who held negative views about same-sex relationships, had applied to become short-term foster carers in Derby. The EHRC presented evidence about the impact of views opposed to, and disapproving of, same sex relationships and lifestyles on the development and well-being of children and young people. This proved critical to the outcome of the case, which the Johns lost. When a Leeds-based Catholic adoption agency, Catholic Care, sought to amend its charitable objects so that it could restrict its activities to mixed-sex couples, the EHRC argued that as a public body the Charity Commission was subject to the Human Rights Act and so Catholic Care  had to abide by its rules. Catholic Care lost the case both at Employment Tribunal and again at the Upper Tribunal. After an Orthodox Jewish school in North London, JFS, had given preference in its admissions policy to applicants recognised as Jewish by the Office of the Chief Rabbi (OCR) on the basis of matrilineal descent, the EHRC argued that this test did not comply with the Race Relations Act. The majority of the Supreme Court concurred and JFS lost the case.[7]

In September 2011, the EHRC made a formal submission in the key case of Eweida et al v United Kingdom, which was decided at the European Court of Human Rights (ECtHR) in January 2013. This combined case covered four cases previously considered by domestic courts. The EHRC argued that the (final) decisions of the domestic courts in two of the cases had been correct, but that in the other two, which involved the wearing of religious symbols in the workplace, they might not have given sufficient weight to the rights of the applicants to manifest their religion or belief. Following the ECtHR judgment, the EHRC published a guide on its legal implications as well as a policy document aimed at employers (discussed below).[8]

Although EHRC interventions and submissions appear to have influenced the judgment of the courts, it should be noted that these have not always been welcomed and its approach to legal cases has been criticised by some religious and secular organisations.[9]

Research

As part of our remit to collect and monitor evidence, the EHRC has commissioned and published specialist research on religion or belief issues. A 2009 report by Linda Woodhead with Rebecca Catto of Lancaster University set out the possible priority areas for future EHRC work on the basis of opinions expressed in three expert seminars by selected academics and stakeholders.[10] Religious discrimination, one of the issues discussed in the Lancaster University research, was examined more fully in 2011 by Paul Weller of the University of Derby. This report explored various approaches to defining religious discrimination; considered whether religious discrimination had increased or decreased over the first decade of the twentieth century; and explored the contested concept of Islamophobia as a frame of reference for discrimination against Muslims.[11] Also in 2011, Woodhead assessed recent research carried out for the ESRC/AHRC Religion and Society Programme and by members of the EHRC’s Religion or Belief Network across six broad themes.[12]

EHRC report
One of the publications commissioned by the EHRC on religion and belief

In August 2012, the EHRC published a major new research report by Alice Donald with Karen Bennett and Philip Leach of London Metropolitan University. Based on 67 interviews with a wide range of stakeholders, roundtable discussion events with practitioners and two surveys, the report explored such issues as the law on equality, human rights and religion or belief; responses to the law; and the implementation of equality and human rights in the workplace and in service delivery. A key finding was that while on some issues, there was consensus (or the possibility of consensus) across a range of perspectives, on other issues no such consensus existed. There was, for example, reasonably strong agreement that religion or belief requests in the workplace should be accommodated unless there were compelling reasons not to do so and broad agreement on the type of criteria that might restrict this right. There was also a general consensus that litigation should be a weapon of last resort to be used only in cases of strategic importance. But there was no such agreement about the nature of religion or belief as a protected characteristic under equality law and whether it was chosen or immutable.[13]

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“A key finding [of the EHRC’s research] was that while on some issues, there was consensus (or the possibility of consensus), on other issues no such consensus existed.”

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As well as these research reports, an analysis of available statistics on religion or belief, covering such issues as religious affiliation; religious practice and attendance;  and discrimination and prejudice on grounds of religion or belief, was published in 2011.[14]

Policy and guidance work

The EHRC published guidance on the Sikh articles of faith in 2010.[15] As noted above, in January 2013, it also published a short good practice guide for employers following the ECtHR judgment in Eweida et al. This aimed to help employers understand how to comply with the judgment when recognising and managing expression of religion or belief in the workplace. The guide discusses how an employer will know if a religion or belief is genuine; what kind of religion or belief requests an employer will need to consider and what questions they should ask to ensure their approach is justified; whether employees have a right to promote their particular religion or belief when at work; and whether employees can refrain from work duties.[16]

In October 2012, the EHRC commissioned the Religious Literacy Leadership Programme at Goldsmiths, University of London, working in partnership with the Coexist Foundation, to explore a number of key religion or belief themes.  Goldsmiths convened four half-day dialogue events in February and March 2013 on the themes of religion and belief in the public sphere; the media and religion or belief; religious diversity in the workplace and service delivery; and balancing competing interests. The events were attended by invited participants from religion or belief organisations (including secular and humanist bodies), employer organisations and trade unions, advice and equality bodies and government officials. A final event in April 2013 brought together the earlier findings and suggested possible actions for three separate groups: employers and trade unions; religion or belief and civic society organisations; and the EHRC and government.[17] Subsequently the EHRC devised a short survey which was administered to all participants at any of the events and to others; the results will help the EHRC decide its future work priorities and what specific guidance documents it will produce, either by itself or in partnership with others.

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“While we will continue to intervene in legal cases where this clarifies the law, we will continue to strive, through our policy work, to reduce the need for unnecessary and divisive litigation in the workplace and in service delivery.”

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Alongside the dialogue events, the EHRC’s 2013-14 programme of work in religion or belief involves organising meetings with key religion or belief stakeholders and making presentations at training events for public and private sector employers. For example, we will be speaking in September and October 2013 at a series of events organised by the legal firm, Eversheds, for human resources and corporate responsibility professionals.[18]

Conclusions

This necessarily brief summary of our work on religion or belief has shown that the EHRC is playing an increasingly significant role in this area. This is set to continue as we seek to build on our prior research work to develop more effective policy. While we will continue to intervene in legal cases where this clarifies the law, we will continue to strive, through our policy work, to reduce the need for unnecessary and divisive litigation in the workplace and in service delivery.

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.


[1] The EHRC is the successor organisation to the former bodies, the Commission for Racial Equality, Disability Rights Commission and Equal Opportunities Commission. Its remit does not cover Northern Ireland.

[2] Alice Donald with Karen Bennett and Philip Leach, Religion or Belief, Equality and Human Rights in England and Wales. EHRC Research Report no. 84. (Manchester: Equality and Human Rights Commission, 2012), 1. Available at: http://www.equalityhumanrights.com/publications/our-research/

[3] For a discussion of the PSED and religion or belief, see Donald, Religion or Belief, 175-81. There is no equivalent private sector equality duty.

[4] For a good discussion of the law, see Russell Sandberg, Law and Religion (Cambridge: Cambridge University Press, 2011); see also Donald, Religion or Belief, 41-71.

[5] See Donald, Religion or Belief, 225-26, for a summary of the case.

[6] The Court of Appeal decision can be found at:

http://www.judiciary.gov.uk/media/judgments/2013/morgan-wilkinson-09072013

[7] See Donald, Religion or Belief, 222-30, for a summary of these cases.

[8] Both are available at: http://www.equalityhumanrights.com/advice-and-guidance/guidance-for-employers/religion-or-belief-new-guidance-february-2013/

[9] See, for example, Christians in Parliament, Clearing the Ground Inquiry: Preliminary Report into the Freedom of Christians in the UK (London: Christians in Parliament, 2012), 31-36 (available at: http://www.christiansinparliament.org.uk/publications/); Donald, Religion or Belief, 126-28. Some of the Christian participants  interviewed by Donald and her colleagues viewed the EHRC as ‘partial and lacking credibility in relation to its religion or belief mandate’.  Another interviewee considered the EHRC to have been ‘unhelpful’ over the JFS case.

[10] Linda Woodhead with Rebecca Catto, ‘Religion or Belief’: Identifying Issues and Priorities. EHRC Research Report no. 48. (Manchester: Equality and Human Rights Commission, 2009). Available at: http://www.equalityhumanrights.com/publications/our-research/

[11] Paul Weller, Religious Discrimination in Wales: A Review of Research Evidence, 2000-10. EHRC Research Report no. 73. (Manchester: Equality and Human Rights Commission, 2011). Available at: http://www.equalityhumanrights.com/publications/our-research/

[12] Linda Woodhead, Recent Research on Religion, Discrimination and Good Relations. Report for the EHRC. Available at: http://www.religionandsociety.org.uk/publications/papers_reports/page:2. The Religion or Belief Network currently contains more than 600 members who are regularly sent information about the work of the EHRC and of other Network members.

[13] Donald, Religion or Belief, vi-xiv, 183-86.

[14] David Perfect, Religion or Belief. EHRC Briefing Paper no. 1. (Manchester: Equality and Human Rights Commission, 2011), 1. Available at: http://www.equalityhumanrights.com/publications/our-research/

[15]  The Sikh guidance can be found at: http://www.equalityhumanrights.com/publications/guidance-and-good-practice-publications/general-guidance/

[16] It is available at: http://www.equalityhumanrights.com/advice-and-guidance/guidance-for-employers/religion-or-belief-new-guidance-february-2013/

[17] A report of all the dialogue events and many of the presentations can be found at: https://sites.google.com/site/religiousliteracy2/ehrc-dialogues

[18] Further details are at: http://www.eversheds.com/global/en/what/training/showevent.page?Events=en/Religion_and_belief_at_work

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