Keeping Faith

This article first appeared in New Law Journal.

Charitable organisations need up-to-date discrimination procedures, say Brian Palmer and William Nash

• The definitions included in the Employment Equality (Religion or Belief) Regulations are wide and it is not immediately clear what might count as "religion" or "religious belief" and what other types of belief might be covered under the "philosophical" description.

• The Department of Trade and Industry has provided explanatory guidance, which states that consideration should be given to a number of factors, such as whether there is collective worship, whether there is a clear belief system and whether there is a profound belief affecting a way of life or view of the world.

• Religion means any religion and it should be interpreted broadly. The guidance states that it would include those religions widely recognised in Britain such as Christianity, Hinduism, Buddhism and Sikhism.

The impact of the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660) (the regulations) has been great. They prohibit direct discrimination, indirect discrimination, discrimination by way of victimisation and harassment in the workplace by reason of any religion, religious belief or philosophical belief. Employers of all sizes, including smaller organisations, which often include charities, have been required to review their procedures and practice to prevent and defend discrimination claims.

The definitions included in the regulations are wide and it is not immediately clear from the regulations what might count as "religion" or "religious belief" and what other types of belief might be covered under the "philosophical" description. The Department of Trade and Industry (DTI) has provided explanatory guidance, which states that consideration should be given to a number of factors, such as whether there is collective worship, whether there is a clear belief system and whether there is a profound belief affecting a way of life or view of the world.

It must be noted that religion means any religion and it should be interpreted broadly. The guidance states that it would include those religions widely recognised in Britain such as Christianity, Hinduism, Buddhism and Sikhism. The government has indicated that religious belief in the context of the regulations should be interpreted in line with Art 9 (right to religious freedom) of the European Convention on Human Rights (the Convention) and in Campbell and Cosans v UK (Application 7511/76) (1983) 13 EHRR 441 the European Court of Human Rights held that under the Convention, to qualify for protection, the belief must obtain a level of cogency, seriousness, cohesion and importance and must be worthy of respect in a democratic society and must not be incompatible with human dignity.

Interpreting Philosophical Belief

The interpretation of "philosophical belief" has undergone revision and the wording was amended in April 2007 to remove the word "similar" as a preface. It is unclear whether this will now give a remedy, for example, to members of the British National Party (BNP) or other far right organisations whose views many employers find offensive. Members of the BNP have previously been refused protection for their views under both the regulations and under the Race Relations Act 1976. In a Parliamentary debate on this issue Baroness Scotland expressly stated that there was no intention to widen the ambit of protection afforded by the regulations but it is yet to be seen whether tribunals will take the same view.

Non-Believers

Protection is also given to those who suffer discrimination on the ground that they are not members of a particular (or any) religion or hold a particular belief. In Glasgow City Council v McNab [2007] IRLR 476, the tribunal upheld a discrimination claim by an atheist. The legislation now clarifies the position in respect of non-believers so that any reference to "religion or belief" includes a lack of religion or belief.

The protection afforded under the discrimination legislation is not only to employees and the wider category of workers but also to some genuinely self-employed people. It is also unlawful to discriminate against a person applying for a job. Employers must be extremely careful in their selection processes and these should be supported by suitable policies and adequately trained staff. Even the smallest of clerical errors can lead to discrimination claims by job applicants. These can be costly to defend, even if there is little strength in the claims. It is inevitably small, charitable organisations which get into financial difficulty when these situations arise.

There have been a number of tribunal decisions in relation to the regulations, in addition to those already referred to. The most well-publicised was Azmi v Kirklees Metropolitan Borough Council [2007] All ER (D) 528 (Mar). Mrs Azmi brought a discrimination claim arising out of her refusal to remove her veil when working with male colleagues. She was unsuccessful in her discrimination claim but won her claim for victimisation. It was held that the school failed to progress her grievance and there had been a "marked change" in the way she was treated following her submission of the grievance letter. As such, her claim for victimisation succeeded as their school had failed to properly deal with the statutory grievance procedure. The tribunal made a 10% uplift in the award of compensation. This is a reminder to employers to proceed sensibly and appropriately with grievances to avoid such claims succeeding.

Of course, not all cases reach tribunal, the example of Amrit Lalji being a useful one. She was sacked by a catering company working at Heathrow Airport for wearing a nose ring while at work, despite informing her employer that the ring carried religious significance in Hinduism and displayed her married status. Following media coverage and pressure from Lalji’s union, Lalji was in October of this year reinstated to her job. Had this not happened, she would surely have made a claim to the tribunal under the regulations.

Scope Of Legislation

The scope of the discrimination legislation and recent case law means that employers must not make assumptions about what a religion requires. If necessary, the individual should be spoken to. Employers must have in place efficient procedures, for example for booking holidays, and should encourage an open culture which allows employees to air issues at an early stage and deals with grievances fairly and efficiently. If permanent changes are required to adapt to a particular religion or faith, for instance to working hours or place of work, and if this is requested by an employee, then employers must deal with such requests in a reasonable and fair manner, for example considering the use of a trial period.

These obligations are not limited to large organisations. It is sometimes the case that smaller companies or charitable organisations do not realise that they too should have up-to-date policies and procedures in place to prevent or resist any discrimination claims that may arise. A detailed equal opportunities policy is now considered the minimum requirement for employers in this regard. Many organisations now also incorporate harassment policies in their employee handbooks. An initial outlay on legal advice may seem difficult to justify for such organisations but there are numerous incidences where failure to do so has been costly at a later stage.

The Clergy

Another significant and recent example of the interaction of faith and the law is the employment status of the clergy. Historically, the courts have been unwilling to find that a contract of employment exists in relation to the appointment of clergy. It is primarily due to the perceived absence of an intention to create legal relations in ecclesiastical matters. There have, however, in the last few years been cases which have cast doubt on this.

The first is Percy v Church of Scotland Board of National Mission [2005] UKHL 73, [2006] 4 All ER 1354. The House of Lords held that a minister was "in employment" for the purposes of the Sex Discrimination Act 1975 and that the employment tribunal had jurisdiction to hear the claim. It was not excluded by the Church of Scotland Act 1921. Helen Percy was an ordained minister of the Church of Scotland who had an allegation of misconduct against her. She was consequently suspended from her duties and a committee of inquiry was set up. It was found that there was a case to answer and therefore formal disciplinary proceedings were commenced against her. She was advised to resign as a minister.

Percy made a claim at the employment tribunal she had been unfairly dismissed as the subject of sex discrimination. The tribunal held that the contract Percy had with the church was not a contract of service as defined in the unfair dismissal or sex discrimination legislation. Percy appealed but only in relation to the sex discrimination claim. The House of Lords subsequently found she was employed for the purposes of the Sex Discrimination Act 1975.

Legal Relations

Very recently in Stewart v New Testament Church of God [2007] EWCA Civ 1004, [2007] All ER (D) 285 (Oct) the Court of Appeal upheld the tribunal’s finding that a pastor was an employee of the church. Reverend Stewart was an ordained minister of the Church of God based in Harrow. The Church of God had a national office based in Northampton and Reverend Stewart was paid through the payroll in Northampton on a PAYE basis. He was also a member of the church’s pension scheme but he had no formal written contract of employment.

Following an internal investigation Stewart was informed he had been found guilty of unbecoming contact and misappropriating funds from the church. He was sent a P45 which, like his salary slips, indicated that the church was his employer. The Employment Appeal Tribunal (EAT) held that Percy had overruled previous case rule law in relation to claims for unfair dismissal and reversed the presumption that a minister and the church do not intend to enter into legal relations. It had been held that an individual can be an employee of the church as well as an office holder. The EAT, therefore, found that Reverend Stewart exercised administrative functions on behalf of the church in addition to his spiritual duties, the combination of the two giving rise to a legal relationship. These two cases represent a significant step towards the clergy obtaining full employment rights.

Statement Of Good Practice

These cases are equally applicable to other faiths. The DTI set up a Clergy Working Group in 2004 to look at clergy working conditions as part of its review of employment stated issues. The working group included representatives from trade unions and many faith groups and resulted in the Clergy Working Conditions—Statement of Good Practice, which sets out minimum standards faith groups should seek to achieve voluntarily. The aims set for faith groups to work towards included making available statements of clergy terms and conditions, clear procedures for resolving disputes—including grievance and disciplinary cases and issues over appointments— and procedures for keeping clergy informed about changes affecting them, such as changes in terms and conditions, policy changes and so on.

Faith groups that try to adhere to the statement of good practice should find the relations between ministers and the central administrative function of the faith group are improved and it is hoped that the likelihood of litigation will be reduced. However, failure to adhere voluntarily to the statement may mean that, as in the area of religious discrimination, legislation follows. While the Christian Bible quotes Jesus as saying "Render unto Caesar the things which are Caesar’s, and unto God those things which are God’s," the above cases indicate that the courts and tribunals are more than prepared to bring civil and secular authorities to bear on issues of religion.

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