Religious discrimination
Chapter 3
Religious discrimination
Background
Part 2 of the Equality Act 2006 introduces a new concept into British law of ‘discrimination on grounds of religion or belief’. Part 2 broadly follows the pattern and wording of established legislation dealing with sex, race and disability discrimination and completes a process which began with the Employment Equality (Religion or Belief) Regulations 2003 (see Chapter 4). Part 2 of the Act applies to Great Britain, i.e. England, Wales and Scotland but does not apply to Northern Ireland where, because of Northern Ireland’s unique political problems, separate legislation on religious discrimination has existed for some years. Sections 49–51, 59, 61 and 66(2) and (3) of the Act, which deal with religious discrimination in education, are dealt with in Chapter 5.
The main reason why anti-religious discrimination legislation was passed was because there was a perception, particularly amongst the Muslim community, that existing discrimination law was unfair because Jews and Sikhs were already protected under the Race Relations Act 1976. This arose from the decision in the case of Mandla v Dowell Lee [1983] ICR 385, where the House of Lords considered the question of whether a Sikh boy (who was refused entry to an independent school because he wore a turban) was discriminated against on grounds of race as defined in the Race Relations Act 1976. The House of Lords considered the ethnic origins of Sikhs and Lord Fraser gave the following definition of race:
For a group to constitute an ethnic group, in the sense of the 1976 Act, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics. Some of these characteristics are essential; others are not essential but one or more of them will commonly be found and will help to distinguish the group from the surrounding community. The conditions which appear to me to be essential are these:
(1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive;
(2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance.
In addition to those two essential characteristics the following characteristics are, in my opinion, relevant:
(3) either a common geographical origin, or descent from a small number of common ancestors;
(4) a common language, not necessarily peculiar to the group;
(5) a common literature peculiar to the group;
(6) a common religion different from that of neighbouring groups or from the general community surrounding it;
(7) being a minority or being an oppressed or a dominant group within a larger community, for example a conquered people (say the inhabitants of England shortly after the Norman conquest) and their conquerors might both be ethnic groups.
A group defined by reference to enough of these characteristics would be capable of including converts, for example persons who marry into the group, and of course excluding apostates. Provided a person who joins the group feels himself or herself to be a member of it, and is accepted by other members then he is, for the purposes of the Act, a member … In my opinion it is possible for a person to fall into a particular racial group either by birth or by adherence, and it makes no difference, so far as the 1976 Act is concerned, by which route he finds his way into the group.
On the basis of this definition, the House of Lords decided that Sikhs constituted a racial group and subsequently, in Seid v Gillette Industries Ltd [1980] IRLR 427, it was decided that Jews also constituted a distinctive racial group. In the case of Tariq v Young EOR Discrimination Case Law Digest No 2, however, it was decided that Muslims were not a racial group; similarly in Crown Suppliers v Dawkins [1993] ICR 517 Rastafarians were held not to be a racial group, nor were Jehovah’s Witnesses: Lovell-Badge v Norwich City College (Case No 12506/95/LS December 1999).
Whether this interpretation of the Race Relations Act 1976 was unfair or not is perhaps a matter of debate. Merely because a group has a religion does not stop it also being a race and, whilst someone may stop being a member of a religion, they cannot stop being a member of a race. This was proved during the Nazi period when Christian and atheist Jews were sent to the gas chambers; a notable example being Saint Theresa Benedicta (Edith Stein), who was killed in 1943 in Auschwitz, despite the fact that she had converted to Catholicism in the 1920s and become a Carmelite nun.
Courts and tribunals dealing with cases brought under the Equality Act 2006 will undoubtedly look at established concepts in discrimination law, particularly where the same form of wording is used in the Equality Act 2006 as is used in other anti-discrimination legislation; precedents under the Race Relations Act 1976 are likely to be regarded as particularly relevant. Where words or concepts are ambiguous and open to interpretation, courts and tribunals may be able to refer to the record of parliamentary speeches set out in Hansard using the principles laid down in the case of Pepper v Hart [1993] AC 593, where the House of Lords decided that in certain circumstances courts could refer to Hansard to find out the purpose and meaning of a Bill by reference to the speeches of the minister who introduced the Bill. It is important to note, however, that the principles in Pepper v Hart will not permit reference being made to the debates in the House of Commons on the Equality Bill that was introduced prior to the 2005 election since, legally speaking, that Bill was not the Bill that was passed
During several of the parliamentary debates the subject of ‘harassment’ is mentioned. The Bill originally had a clause, cl 47, dealing with harassment and had references to harassment in several clauses, however, during the debate in the House of Lords cl 47 was removed, as were all the references to harassment. Despite this clause being removed, religious harassment is still illegal and can be dealt with using the Protection from Harassment Act 1997 (Chapter 6).
Section 44 definition of religion and belief
The key sections within the Equality Act 2006 are ss 44 and 45. Section 44 defines ‘religion and belief’ as follows:
(a) ‘religion’ means any religion,
(b) ‘belief’ means any religious or philosophical belief,
(c) a reference to religion includes a reference to lack of religion, and
(d) a reference to belief includes a reference to lack of belief.
The meaning of ‘religion’ is examined in Chapter 1, but the definitions of ‘religious belief’ and ‘philosophical belief’ were discussed in some detail in Parliament. Home Offce Minister Paul Goggins MP said (Hansard, 6 December 2005, col 145):
We know from case law that religion has to be consistent with human dignity; it must have a cogency, seriousness and sense of cohesion about a particular series and set of beliefs. We would expect a philosophical belief to betray the same hallmarks, although it does not revolve around belief in a particular deity.
The reference to religion having to be ‘consistent with human dignity’ is a common misreading of the European Court of Human Rights case of Cosans v UK ECtHR 25 February 1982, where the court was not considering the meaning of the words ‘religion’ or ‘religious belief’ but was considering the meaning of the phrase ‘philosophical convictions’ and said (para 36):
In its ordinary meaning the word ‘convictions’ … denotes views that attain a certain level of cogency, seriousness, cohesion and importance … As regards the adjective ‘philosophical’, it is not capable of exhaustive definition … the expression ‘philosophical convictions’ in the present context denotes, in the Court’s opinion, such convictions as are worthy of respect in a ‘democratic society’ … and are not incompatible with human dignity.
Therefore, for the purposes of the Equality Act 2006, a person can have religious beliefs which are not ‘worthy of respect in a democratic society’ (an extraordinarily vague and subjective concept) but they still cannot be discriminated against. If they have ‘philosophical beliefs’ which are worthy of respect then, once again, they cannot be discriminated against but if they have ‘philosophical beliefs’ which are not worthy of respect then they can be discriminated against. The following examples relating to halal meat may help to clarify these concepts in s 44 which perhaps are not as clear as they might be:
(a) Eating only meat which is halal because that is what the Koran says is a religious belief.
(b) Refusing to eat halal meat because the animal is killed ‘in the name of Allah’ could be a religious belief if you consider ‘Allah’ to be a false God.
(c) Refusing to eat any form of meat because animals should not be killed is a philosophical belief ‘worthy of respect’.
(d) Refusing to eat halal meat because the halal method of slaughter is cruel compared to other methods could be regarded as a philosophical belief ‘worthy of respect’ or could simply be regarded as a personal opinion.
(e) Refusing to eat halal meat because you want nothing to do with Muslims is neither a philosophical belief nor a belief ‘worthy of respect’.
In reality, the distinctions between religious beliefs, philosophical beliefs ‘worthy of respect’, philosophical beliefs ‘not worthy of respect’ and mere personal opinions are rarely that clear cut. The interrelationship of these concepts will doubtless keep the courts busy for some time.
One thing that was made clear in both the Lords and the Commons was that Parliament did not want to see political beliefs or the membership of a political party being treated by the courts as a ‘belief’ for the purposes of s 44. Questions were raised on this point in both Houses because the definition of ‘religion or belief’ in s 44 differed from the definition that was already in place in s 2(1) of the Employment Equality (Religion or Belief) Regulations 2003, namely: ‘ “religion or belief” means any religion, religious belief, or similar philosophical belief’. Concerns were raised that removing the word ‘similar’ could mean that it would become illegal to discriminate against people because of their political beliefs. Home Offce Minister Baroness Scotland said (Hansard, 13 July 2005, col 1109):
The intention behind the wording in Part 2 is identical to that in the employment regulations. However, in drafting Part 2, it was felt that the word ‘similar’ added nothing and was, therefore, redundant. This is because the term ‘philosophical belief’ will take its meaning from the context in which it appears; that is, as part of the legislation relating to discrimination on the grounds of religion or belief. Given that context, philosophical beliefs must therefore always be of a similar nature to religious beliefs. It will be for the courts to decide what constitutes a belief for the purposes of Part 2 of the Bill, but case law suggests that any philosophical belief must attain a certain level of cogency, seriousness, cohesion and importance, must be worthy of respect in a democratic society and must not be incompatible with human dignity. Therefore an example of a belief that might meet this description is humanism, and examples of something that might not – I hope I do not give any offence to anyone present in the Chamber – would be support of a political party or a belief in the supreme nature of the Jedi Knights.
Whilst Home Offce Minister Paul Goggins MP said (Hansard, 6 December 2005, col 146):
… philosophical belief is not limitless; for example, it would not be possible to claim that belief in the supremacy of a certain football team qualified as a religion or philosophical belief. Nor, indeed, could that claim be made about belief in the principles of a political party, the point raised by the hon. Gentleman. We know that because of the case in April this year of Baggs v. Fudge, in which a member of the British National Party sought to challenge the refusal of an organisation to interview him for a job under the Employment Equality (Religion or Belief) Regulations 2003, which incorporate wording about ‘philosophical belief’ similar to that in the Bill. That individual’s argument, that his support for the BNP constituted a philosophical belief, was thoroughly rejected by the tribunal, so there is no case to suggest that any such political belief would qualify as a religion or belief under the Bill. We are not making up the provisions on the spur of the moment; as I said, there is a precedent for them in the 2003 regulations.
Mr. Grieve: I can understand the rationale in Baggs v. Fudge, which concerned an adherence to a political party, as I understand it. That seems to me to be capable of being distinguished from an adherence to a particular philosophical belief. There may be no such difference, but the Minister may understand why I remain slightly troubled by this point. It is one thing to say, ‘We refused to interview him because he was a member of the BNP’ and another to say, ‘We refused to interview him because we knew that he had a belief in white supremacy.’ Maybe there is no distinction between those two statements, but I see a capacity for one. I wonder whether we are in danger of opening a door to people to make such arguments.
Paul Goggins: Often those two things, a particular belief and association with an organisation, are inextricably linked. In the end it will always be for the court, the employment tribunal or other judicial setting to determine whether the provisions of a particular employment law are relevant to a particular case. Our job here is to set out in legislation the overall provisions, and that we do, in a way that does not give limitless extent to the concept of philosophical belief, but ensures that it is consistent with the hallmarks of religious belief, such as cogency, which I quoted earlier.
Even though both ministers referred in Parliament to the employment tribunal case of Baggs v Fudge ET case No 1400114/05, where a member of the British National Party (BNP) claimed to have been discriminated against contrary to the Employment Equality (Religion or Belief) Regulations 2003, they do not seem to have read the judgment in that case, which makes it clear that the decision was very largely based around the word ‘similar’. In para 8 of the judgment the tribunal chairman said: ‘The BNP is not a religion, or a set of religious beliefs, or a set of similar (which I take to be similar to religious) beliefs.’ It is at the very least arguable that because the definition in s 44 refers to ‘philosophical belief’, rather than ‘similar philosophical belief’, this means that people holding political beliefs, especially extreme political beliefs, could be protected by the Equality Act 2006 from being discriminated against. Indeed, the more extreme a political viewpoint is, the more it can be said to constitute a ‘philosophy’. For example, it will be illegal under the Equality Act 2006 for a shop to refuse to serve a customer because the customer is a Muslim. But what if the shop refuses to serve the customer because he is wearing a badge saying ‘I love Al Qaeda’ and, whilst waiting in the queue, loudly proclaims the opinion that ‘actions like 9/11 and 7 July were necessary and justified’? Is a belief that terrorism is necessary and justified a philosophical belief? It is perhaps worth noting that s 3 of the Fair Employment and Treatment (Northern Ireland) Order 1998 provides explicit protection for political as well as religious views:
| 3.—(1) In this Order ‘discrimination’ means— | ||
| (a) | discrimination on the ground of religious belief or political opinion; subject to the following caveat … | |
| 2(4) | In this Order any reference to a person’s political opinion does not include an opinion which consists of or includes approval or acceptance of the use of violence for political ends connected with the affairs of Northern Ireland, including the use of violence for the purpose of putting the public or any section of the public in fear | |
and it can therefore be argued that, since the Equality Act 2006 does not include a similar specific reference to political opinion, it is clear that political beliefs are not covered by the legislation. However, Paul Goggins’ comment: ‘In the end it will always be for the court, the employment tribunal or other judicial setting to determine whether the provisions … are relevant to a particular case’ does seem to leave the issue wide open for argument.
One other point that should also be noted in the wording of s 44(c) and (d) is the reference to ‘lack’ of religion or belief. This was obviously introduced so as to make it clear that the anti-discrimination legislation covered atheists and humanists, i.e. those who lack any religious belief. However, it has a wider meaning, since it includes all those who do not have a particular religious (or philosophical) belief. For example, if a Muslim bookseller refused to sell copies of the Koran to non-Muslim customers, he would be guilty of unlawful discrimination. He would not be guilty of discriminating against any particular non-Muslim because of their individual religion, but he would be discriminating against each of them because of their ‘lack of belief’ in Islam.
Definition of discrimination
The definition of discrimination is set out in s 45(1):
(1) A person (‘A’) discriminates against another (‘B’) for the purposes of this Part if on grounds of the religion or belief of B or of any other person except A (whether or not it is also A’s religion or belief) A treats B less favourably than he treats or would treat others (in cases where there is no material difference in the relevant circumstances).
(2) In subsection (1) a reference to a person’s religion or belief includes a reference to a religion or belief to which he is thought to belong or subscribe.
Section 45(1) covers the relatively straightforward situation of ‘direct discrimination’. For example, if a Sunni Muslim halal butcher (A) refuses to sell halal meat to an Ahmadyya Muslim (B) whom he regards as a heretic, that would be direct discrimination. Similarly, if A contaminates the meat, for example by rubbing it against pork, so it is no longer halal or deliberately gives B older or poorer quality meat, that is direct discrimination. It is important to note that even though the discrimination against B has to be ‘on the grounds of religion or belief’, it does not necessarily have to be on the grounds of the religion or belief of B. To return to the halal butcher A; if A were to refuse to serve a Muslim woman (B) because B had married a Christian, then that would still constitute religious discrimination against B even though A was not discriminating against B because of her own religion.
What is more unclear is what the situation is where discrimination occurs where both A and B are members of the same religion. In the House of Lords the following hypothetical example was raised by Lord Lester (Hansard, 13 July 2005, col 116) regarding his concerns over the original wording of cl 46 (the predecessor to s 45):
… a member of the liberal wing of the Jewish faith eats pork and a member of the orthodox wing of the Jewish faith strongly objects to any Jew or religious Jew eating pork. They are both members of the same religion – this is entirely hypothetical, which I am trying to explain with an example – but perhaps the orthodox Jew is a bigot who decides to discriminate against or to harass the less orthodox or unorthodox Jew for eating pork. The problem is whether the exception in Clause 46(2)(a) [i.e. the original wording in the Bill] prevents the liberal Jew being protected against discrimination or harassment because the discriminator has the same religion as the alleged victim … normally in discrimination law the position of the discriminator vis-à-vis the victim does not matter. In other words, if I, or a woman, discriminate against a woman, the gender of the discriminator is irrelevant. If a victim is the victim of sex discrimination, the fact that the discriminator is of the same sex does not matter. The same is true of racial discrimination.
Baroness Scotland replied (Hansard, 13 July 2005, col 1118):
I should say to the noble Lord immediately that there may be a few areas where we can look again at the wording. This is not because I am convinced that we will find any better wording but because there is something here that we need to consider … The reason for the amendments [proposed by Lord Lester] therefore, seems to be to ensure that the person’s own religious or other beliefs cannot be used as a justification for discrimination or harassment on the grounds of religion and belief. If that is partly what the noble Lord seeks, I understand and sympathise with the intention behind the amendments. I should like to take the opportunity to place on record that it is neither the intention nor the effect of the clauses as currently drafted to allow discrimination or harassment in such cases … So an Orthodox Jew providing a good facility or service could not lawfully discriminate against or harass another more secular Jew on the grounds that he was not religious enough … I take the view that he wants to do exactly what we want to do, save that he is not sure that the wording will achieve what we both aspire to achieve. We believe it does, but I am very happy to take it away, look at it further and ensure that we are as confident as we can be that the matters that should be covered are covered.
Following this exchange, the government came back with amendments which subsequently became s 45(1). Therefore, it is clear that the intention of Parliament was that even if A and B are members of the same religion, A should not be able to discriminate against B simply because B is not suffciently religious. However, it may not be necessary to resort to Hansard to resolve this argument. If we return to Lord Lester’s example of the Orthodox Jew A and the less Orthodox Jew B: if A discriminates against B because B is not suffciently religious and eats pork, then A is discriminating against B because of B’s ‘lack of belief’ in the importance of Jews obeying all of the rules in the Torah. Both A and B may have the same ‘religion’ but because they interpret it and apply it differently they ‘lack’ the same ‘belief’. Therefore, if s 44(d) is considered and applied, the solution to the problem of discrimination between members of the same religion arises from the wording of the legislation itself.
The main point about s 45(1) is that there is no defence of reasonableness in it and therefore direct discrimination is always unlawful; or is it? There is an element of a circular argument in s 45(1) which may on occasions be important. A only discriminates against B if A refuses to do something because of the religion, or lack of religion, of B but not if he refuses to do it because of his own religion. For example, if a Roman Catholic shopkeeper (A) refused to sell a copy of the Bible to a Mormon (B) because he considered that B was not a ‘proper’ Christian, that would be unlawful discrimination. If, however, A refused to sell a crucifix to a B, a Satanist, because he knew, or believed, that B intended to use the crucifix in a Satanic ritual then arguably A would not be guilty of unlawful discrimination. That is because A’s refusal is based on A’s own religion and on his belief that an object, such as a crucifix, is sacred and should not be sold to someone who will not treat it with reverence or respect.
Section 45(2) is designed to cover the situation where discrimination occurs due to incorrect assumptions regarding the religion of the victim. For example, if Catholic shop owner A refuses to sell a statue of the Virgin Mary to Indian gentleman B because A believes that B is an ‘idolatrous’ Hindu, when actually B is a Thomist Christian, A is still guilty of unlawful discrimination.
Indirect discrimination
Section 45(3) is likely to be a more significant provision than s 45(1) because it deals with the far more subtle concept of ‘indirect discrimination’. It reads:
(3) A person (‘A’) discriminates against another (‘B’) for the purposes of this Part if A applies to B a provision, criterion or practice—
(a) which he applies or would apply equally to persons not of B’s religion or belief
(b) which puts persons of B’s religion or belief at a disadvantage compared to some or all others (where there is no material difference in the relevant circumstances),
(c) which puts B at a disadvantage compared to some or all persons who are not of his religion or belief (where there is no material difference in the relevant circumstances), and
(d) which A cannot reasonably justify by reference to matters other than B’s religion or belief.
The phrase ‘provision, criterion or practice’ has recently been adopted in sex and race discrimination legislation (2001 and 2003 respectively) in addition to the old wording ‘requirement or condition’. Therefore, cases involving the new wording in sex and race discrimination cases will be particularly relevant in assisting courts in interpreting s 45(3). However, courts will have to be cautious if they are referred to discrimination cases decided under the old wording, in particular those cases where particular acts were held not to constitute indirect discrimination; the new wording is clearly intended to have a wider impact than the old wording and will apply in a wider range of situations.
Most cases of discrimination involve allegations of indirect, rather than direct, discrimination and can provide the most diffcult areas for people to know where to draw the line and whether a practice which seems innocuous to them could be argued to be indirectly discriminatory. Where an allegation of discrimination is made the initial response should be to look at s 45(3)(d) and decide whether the practice can be justified by reference to factors other than religion. For example, most banks and building societies have a rule that people cannot enter the premises with their face covered. That would be a ‘provision, criterion or practice’ which was applied equally to everyone entering the bank. For most people such a rule is not a problem and motorcyclists, for example, are used to removing their helmets before they enter a bank and a person who has a scarf across their face in winter will also remove it when entering a bank. However, a Muslim woman who wears a niqab (a veil which covers the face below the eyes) could object to a requirement that she remove her veil in order to be allowed to enter the bank; she could argue that the rule puts Muslim women in general, and her in particular, ‘at a disadvantage’, since her religious beliefs mean that she has to remain veiled when in the presence of anyone other than her husband and family and therefore the banks rule prevents her using the bank and obtaining its services.
In this situation the bank should be able to ‘reasonably justify’ its rule by reference to security and the prevention and detection of crime. All banks have CCTV and if someone robs the bank or, less dramatically, cashes a fake cheque, etc., then the CCTV can be viewed by the police to establish identity and can be used in evidence in court. It can reasonably be argued that if the bank were to allow Muslim women to enter its premises wearing a niqab, how are they going to prevent a female, or male, fraudster entering whilst wearing a niqab in order to avoid recognition on CCTV; how is the bank expected to know who is sincerely a practising Muslim and who is merely trying to hide their identity?
However, the situation might be more diffcult if the bank also prohibited the wearing of all hats and head coverings. The purpose would still be security and to stop criminals wearing ‘hoodies’ or baseball caps, which prevented their faces being seen on CCTV. However, such a ban on all head coverings would put Sikhs (who wear turbans) at a disadvantage and also Muslim women who wear the hijab (headscarf) but who do not cover their face. In that situation a bank might have diffculty in ‘reasonably’ justifying a complete blanket ban and might have to modify its rule so that it prohibited people entering with hats or head coverings which prevented their faces being seen on CCTV. If that was done it would be important for staff to be aware that they should apply such a rule in a non-discriminatory way. For example, if a non-Muslim woman entered wearing an ‘ordinary’ headscarf because it was a windy day and she was told to remove it whilst a Muslim woman entering at the same time was not told to remove her hijab, then the non-Muslim woman could argue that she was being discriminated against because she was not a Muslim.
Section 45(4) is, in the main, fairly self-explanatory and says:
(4) A person (‘A’) discriminates against another (‘B’) if A treats B less favourably than he treats or would treat another and does so by reason of the fact that, or by reason of A’s knowledge or suspicion that, B—
(a) has brought or intended to bring, or intends to bring, proceedings under this Part,
(b) has given or intended to give, or intends to give, evidence in proceedings under this Part,
(c) has provided or intended to provide, or intends to provide, information in connection with proceedings under this Part,
(d) has done or intended to do, or intends to do, any other thing under or in connection with this Part, or
(e) has alleged or intended to allege, or intends to allege, that a person contravened this Part.
(5) Subsection (4) does not apply where A’s treatment of B relates to B’s making or intending to make, not in good faith, a false allegation.
The hypothetical A does not have to be the intended target of the proceedings or allegations in which B is involved. So it would be unlawful discrimination if Hindu shopkeeper A was to refuse to serve, Hindu, customer B because A disapproved of the fact that B was giving evidence in a case of discrimination against Muslim shopkeeper C.