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  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 . 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 , 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'.
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 email@example.com.
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.