Today, 2 December, the Equality and Human Rights Commission published its updated Guidance on religion and belief in the workplace. It also published Religion or belief – is the law working?, which explores whether Great Britain’s equality and human rights legal framework gives sufficient protection to individuals with a religion or belief and religion or belief organisations, while balancing the rights of others under the Equality Act 2010. The evaluation focuses 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?
The EHRC’s recommendations are as follows:
- That no change be made to the broad definition of the protected characteristic of religion or belief in the Equality Act.
- That no change be made to the current approach whereby the courts decide whether any particular religion or belief is protected under the Equality Act.
- That the definition of the protected characteristic of belief should be clarified through case law.
- 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.
- That the Department for Education should review sections 60 (4) and (5) of the School Standards Framework Act and the Scottish Government should review section 21 (2A) of the Education (Scotland) Act to ensure their compatibility with the EU Employment Equality Directive.
- 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.
- That a duty of reasonable accommodation should not be introduced into law.
- That 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.
- 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.
- That the extent of freedom of expression and freedom of thought, conscience and religion in relation to religious organisations which is required should be clarified through case law.
- That there should be no extension of harassment protections covering religion or belief to non-employment settings.
In short, the report concludes that at the Equality Act 2010 and the Human Rights Act 2008 provide sufficient protection for individuals with and without a religion or belief, for religion or belief organisations and for other groups protected by the Equality Act; and that the definition of religion or belief in the Equality Act is sufficiently broad to ensure protection to many religions or beliefs.
In an accompanying press release, the EHRC Chair, David Isaac, suggests that the existing the legislation is generally effective but that a lack of understanding of the law has led to misinterpretation and confusion: “Our review finds that the law works well. There are a lot of myths that have arisen due to misunderstanding of legal requirements. Employers’ actions shouldn’t be governed by a fear of causing offence.”
Coincidentally, the EHRC report comes hard on the heels of the ResPublica report by James Orr, Beyond Belief: Defending religious liberty through the British Bill of Rights, in which the author argues that there has been “[a] steady erosion of the fundamental freedom to live according to beliefs held on the grounds of thought, conscience, and religious belief” and that, in spite of the fact that freedom of religion and belief is enshrined in every major international declaration of human rights and has been given domestic legal effect through the Human Rights Act 1998, “a growing body of legal judgments suggests that the courts have begun to develop a reductive conception of this freedom.”
Orr’s remedy is “a return to the original and more reasonable account of rights, where reasonable accommodation is made once more between different minorities and nobody is more equal than anyone else. The new British Bill of Rights … currently represents the best opportunity to engender such a transformation.” In short, he proposes requiring employers and public sector bodies to make “reasonable accommodation” for religious manifestation along the lines of the duty to make “reasonable adjustments” for disabled persons under the Disability Discrimination Act 1995. He cites as an example the legislation that allows Sikhs to wear a turban instead of a crash-helmet while riding a motorcycle. He recommends that the Government:
- should incorporate a duty of reasonable accommodation in its proposed Bill of Rights;
- should commit to introducing the Bill of Rights in the next Queen’s Speech;
- should ensure that the EHRC introduces a Religious Freedom Code of Practice;
- should establish a Religious Policy Review Council in central government;
- should enforce existing statutory duties on universities on freedom of speech; and
- should create a Religious Freedom Index to monitor infringements of religious liberty.
So who’s right: the EHRC or ResPublica?
It will come to no surprise to readers that I remain fairly suspicious of the proposed “British Bill of Rights” – though I am suspending judgment until I see the terms of the promised consultation document. But, on balance, I am not yet convinced that the argument for reasonable accommodation has been made out.
The problems of manifesting religion or belief in the workplace almost always come down, in the end, to the need to balance competing rights one against another; and there is always the possibility that changing the law to provide a mechanism for reasonable accommodation for religious practice might produce another set of problems that we cannot yet predict. But we clearly haven’t heard the last word on the matter.