Isle of Man: Religion And Belief: "Mankind Is Heading Towards A Catastrophic Climate Change…": Protected Belief?

Last Updated: 13 February 2018
Article by Leanne McKeown

The Employment Act 2006 provides limited protection against discrimination on the grounds of religion or belief, but such protection is limited to employment and, within the employment sphere, it is further limited to the protection of employees against being unfairly dismissed on any of these grounds. So, for example, such protection does not currently apply to agency workers (who are not employees) and nor would it apply at the recruitment stage.

The Equality Act 2017 (the Act), which received Royal Assent in July 2017 and which is subject to a phased implementation by 2020, codifies the concept of people being treated equally and prohibits discrimination.

Introduction to Religion and Belief under the Equality Act 2017

The definition of religion as set out in section 11 of the Act is 'any religion', and includes reference to a lack of religion, while the definition of belief is 'any religious or philosophical belief', and again includes lack of belief.  Section 11 of the Act mirrors the English Equality Act 2010 (2010 UK Act), which re-enacted the Employment Equality (Religion and Belief) Regulations 2003 such that in interpreting the impact of religion and belief as a protected characteristic, England and Wales case law of old will be of relevance and assistance to the Island's Employment and Equality Tribunal, in due course.

It should be noted that the definitions of religion and belief are broad and thus in line with Article 9 (freedom of thought, conscious and religion) of the European Convention of Human Rights (ECHR).  The Island's Human Rights Act 2001 (HRA 2001) directs that a court or tribunal determining a question which has arisen under the HRA 2001 in connection with an ECHR right must take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights (ECtHR). 

In England and Wales it has been held that when determining what constitutes a belief qualifying for protection there is no material difference between the domestic approach and that under Article 9 ECHR. 

Given the similarity in the drafting of the Act to its Great British counterpart, the writer considers it likely that a similar approach will be adopted by Employment and Equality Tribunal in due course, and thus allowing the Island to make use of the case law which has already arisen in this area [in England and Wales].

The protected characteristic of religion and belief will take effect as a matter of Manx law from 1 January 2019.

How far does the protection extend?

The leading text of Harvey on Industrial Relations and Employment Law helpfully summarises the position applying in Great Britain as follows:

The House of Lords in R (Williamson) v Secretary of State for Education and Employment [2005] made it clear that while it is the function of a court to enquire as to the genuineness of a belief, and to decide that as an issue of fact, this must be an enquiry essentially limited to ensuring 'good faith'. It is not the role of the court to enquire as to the validity of any belief or to test it by objective standards, as individuals are at liberty to hold beliefs, however irrational or inconsistent they may seem, and however surprising.

Protection under domestic [Great British] and European provisions expressly includes where there is a lack of religion or belief.  Atheists and humanists are therefore likely to be protected, as are agnostics – by reason of their not being adherents to any religion. The protections given to those of a particular religion or belief apply with equal force to those who suffer discrimination on the ground that they are not members of a particular (or any) religion or hold a particular belief.

Where the line is to be drawn between beliefs which are to be protected, and those which are not, has been left for the judgment of courts and tribunals.

The ECtHR case law suggests that for a belief to qualify for protection it must have 'sufficient cogency, seriousness, cohesion and importance', in addition to being 'worthy of respect in a civilised society' – see Campbell and Cosans v UK [1982].  It is presumed that this exclude witchcraft, voodoo and the like.

The guidance from the UK Government Equalities Office, and in the Employment Statutory Code of Practice (2011), mirrors the approach seen in Campbell and Cosans, and it has been adopted within Great British case law, including, Nicholson v Grainger plc [2010],  below. 

Notwithstanding that Tynwald deliberately based the majority of the Act on the 2010 UK Act, it remains to be seen to what degree the Island will adopt and/or mirror any codes of practice and/or guidance issued in the UK.

"Mankind is heading towards a catastrophic climate change" – Protected Belief or a Fatalistic Attitude?

In Nicholson v Grainger plc the English Appeals Tribunal (EAT) had to consider Mr Nicholson's (the claimant) claim of alleged less favourable treatment on the grounds of his philosophical belief which was said to be that 'mankind is heading towards catastrophic climate change and therefore we are all under a moral duty to lead our lives in a manner which mitigates or avoids this catastrophe for the benefit of future generations, and to persuade others to do the same'.

The EAT held that the claimant's asserted belief was capable of being a 'belief' for the purposes of the legislation in force at that time, save that there must be some limit placed upon the definition of philosophical belief, namely:

  • the belief must be genuinely held;
  • it must be a belief and not an opinion or viewpoint based on the present state of information available;
  • it must be a belief as to a weighty and substantial aspect of human life and behaviour;
  • it must attain a certain level of cogency, seriousness, cohesion and importance;
  • it must be worthy of respect in a democratic society, be not incompatible with human dignity and not    conflict with the fundamental rights of others.

It is noteworthy that the EAT also commented (although not directly in issue in this appeal) that there is nothing to prevent a belief based on a political philosophy, or indeed on science, from qualifying as a `philosophical belief'. 

What's next?

As with all litigation, each case will be determined on its own individual facts, save that we can take guidance from the case law in attempting to understand what could properly constitute religion or belief for the purposes of protection under the Act.  The following Great British case examples are of beliefs upheld as capable of protection under law:

  • A belief in the sanctity of life, extending to a fervent anti-fox hunting and anti-hare coursing belief, constituted a philosophical belief [based on the facts];
  • A belief that public service and the need to engender in others a desire and commitment to serve the community for the common good was a philosophical belief capable of protection under the 2010 UK Act;
  • A belief that "it is wrong to lie under any circumstances" amounts to a philosophical belief under the test in Nicholson;
  • A belief in spiritualism, life after death and the ability of mediums to contact the dead was capable of amounting to either a religious belief or a philosophical belief.

Discrimination because of religion or belief will be a topic under discussion at DQ's inaugural Equality Conference on 13 March 2018 at the Villa Marina, further details can be found here.

Equality and Diversity in the Manx Workplace

As part of promoting a culture of equality and diversity, Island businesses may want to consider availing of targeted eLearning, aimed at educating employees on the key concepts of the law on diversity and inclusion, with a view to reducing the risk of work place issues whilst also strengthening an employers' defences to tribunal claims and, as reported by Deloitte in 2012, boosting business performance overall. 

Further information on DQ's Equality Online training initiative in association with Legal-Island can be found here.

To obtain free trial access to review the Isle of Man diversity & inclusion online module on behalf of your organisation or discuss your requirements further, please contact employment@dq.im.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Leanne McKeown
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions