On 5 October the Equality and Human Rights Commission published a Review of equality and human rights law relating to religion or belief (Research Report no. 97) by Peter Edge and Lucy Vickers of Oxford Brookes University. Their study reviews the interpretation and effectiveness of the current domestic legislative framework on religion or belief under equality and human rights law. It is based upon a detailed analysis of primary and secondary sources of UK and European law, recent research carried out by the EHRC, the academic literature, and the views of academics, legal practitioners, representatives of religion or belief organisations and representatives of other advisory and equality bodies.
The review suggests that there are a number of areas that may require further consideration:
- The definition of “belief”, particularly in equality legislation, merits further assessment. The broad definition currently being applied by the courts is unclear, particularly for belief systems which are based upon scientific evidence. This results in apparent inconsistencies between judgments, particularly at Employment Tribunal level. Additionally, the relationship between “religion” and “belief” is also unclear.
- The impact on domestic law of some specific issues which have been tested at European level remains unclear. For example, despite the ECtHR judgment in Eweida & Ors v United Kingdom, it remains uncertain whether or not an individual bringing a claim will need to find a group of individuals who share his or her beliefs and, if so, what the size of that group should be.
- The primary focus of the case law to date has been on the relationship of the religious employee and his or her employer. The positions of the religious employer and of the religious service provider have been relatively unexplored in the case law, but have the potential to be a significant area.
- Important underlying issues are whether the existing Equality Act exceptions on the basis of religion or belief may be too narrow or too wide; and how the courts have interpreted those exceptions.
- The role of the public sector equality duty (PSED) may be worth exploring further as a way to mainstream religion or belief equality by integrating it into the day-to-day practice of public sector organisations. To date, the research on the PSED has been focused either on the duty in general or on protected characteristics; and it would be useful to assess its impact as it applies to religion or belief.
- It would be helpful to assess the extent to which a duty to accommodate religion or belief might be beneficial to employees and employers.
On this last point, the authors point out that the position of employees who have religious objections to carrying out part of their duties, or to carrying them out in a particular way, is currently approached through the indirect discrimination model, under which a range of factors can be taken into account in determining whether or not a response is proportionate. They note that Canada and the United States deal with similar issues through a duty of reasonable accommodation of religion or belief and that there have been calls for such a duty to be adopted in Great Britain.
They suggest that an alternative to both the indirect discrimination model and the duty of reasonable accommodation might be to introduce a mechanism similar to the current right of employees to request flexible working. The proposed mechanism would cover issues of religion or belief in the workplace that are not covered by the existing right to request, such as dress codes and uniforms. They also note that different views are held about whether or not that would be beneficial for employees and employers.
The ECHR responded to the review as follows:
“The Commission will now begin work on its concluding report setting out its own views on these issues. The Commission’s role is to promote and enforce the laws that protect everyone’s right to be treated with fairness, dignity and respect. So we will take as our starting point the premise that services provided to the public should be available to everyone equally without discrimination, and that enabling employees to express their religion or belief should not cause a detriment to other employees or service users. The Oxford Brookes report provides a very useful starting point.”
Which it certainly does – and it’s well worth careful reading.