Employers are often worried about inadvertently discriminating against employees, and the consequences of doing so. This tends to cause the most problems in the area of “religious or philosophical beliefs”, because some of those have a nasty tendency of leading to other forms of discrimination (for example where strong feelings are held in relation to sexual orientation, gender, race and even disability); and also because it can be difficult to know exactly what counts as a “religious or philosophical belief”. For instance, is it unlawful to discriminate against someone who associates as being a “Jedi”?
Cases involving a person’s religious belief and whether someone can defend their behaviour because of their religious beliefs often grab the headlines these days. Most recently, an employment tribunal decided that vegetarianism did not qualify as a religious belief under the protection of the Equality Act 2019. This is because, although the claimant’s vegetarian belief was genuinely held and was worthy of respect, it failed to meet the other legal hurdles for protection.
The reason for the tribunal’s decision was that, firstly, vegetarianism did not relate to a weighty and substantial aspect of human life – it is a lifestyle choice. Secondly, it did not meet the required level of seriousness as the reason for being a vegetarian differs so greatly from one person to the next (animal treatment, diet, lifestyle etc.). Finally, it did not have a similar status to a religious belief.
The case did not consider veganism but the judge did contrast vegetarianism with veganism, stating that there was greater cogency and cohesion in vegan belief, on the basis that the belief held by vegans is fundamentally the same in each vegan. I must admit, I disagree with this comment about veganism. Whilst historically, the motivation for most vegans may have been driven by concern for animal welfare, today veganism is much more widespread and in my eyes, there are multiple reasons for this: there has been an increase in research into the health benefits of veganism; serious allergies are on the rise and eggs and dairy must be strictly removed from diets for medical reasons; and there is certainly a huge lifestyle trend which promotes veganism or plant based diets. This was not a point that the judge was asked to consider, but it will be interesting to see cases that follow trying to rely on veganism as a religious belief – indeed one such case will be decided in the tribunals very soon so we may have an indication before too long.
Conflicting beliefs and characteristics
There was another interesting case involving a bakery’s refusal to make a cake with the words “Support Gay Marriage”. The Supreme Court decided that a bakery and its Christian owners had not directly discriminated on the ground of sexual orientation, religious belief or political opinion when they refused to provide the cake to a gay customer. This decision may be both surprising and interesting to employers who will approach with some trepidation difficult situations where opposing rights of different protected characteristics come into conflict.
On reading the news headlines alone at the time of this case, it may have looked as though it would make it easier for someone with a belief, for religious reasons, to act in an otherwise discriminatory way, but that is not the case. There was a previous case where hotel owners with strong Christian beliefs refused to allow a gay couple to use a double bedroom, which was found to be unlawful discrimination.
So why was there no discrimination in the cake baking case? The reasons were that:
- The refusal to bake the cake was not because the customer, Mr Lee, was a gay man or because he supported gay marriage;
- It was not because of his association with the gay community; and
- It was because the bakery owners profoundly disagreed with the message of “Support Gay Marriage”.
The bakery would have refused to supply the “Support Gay Marriage” cake to a heterosexual customer and they would have supplied Mr Lee with another cake without the message. Belief in gay marriage could be “disassociated” from the customer’s sexual orientation, and the refusal to supply the cake was the message on the cake, not the customer who was ordering it.
So, what can we learn from this when trying to balance conflicting characteristics? The key is to ensure a full understanding of the reasons for the behaviour, actions and any objections. Here are some questions to ask as a starting point for understanding a conflict and the opposing rights:
- What are the conflicting groups who are protected from discrimination in a situation (age, sexual orientation, disability…etc.)?
- How do the values or interests of these groups conflict?
- What treatment and/or conflict has taken place (e.g. an employee’s refusal to work with a particular colleague because of their belief in something)?
- Do we know why these behaviours occurred? What reasons or explanations have been given?
- Why is there a conflict?
- Is it because of a protected characteristic (sex, race, sexual orientation etc.) of a person?
- Is it because of a protected characteristic they are associated with (e.g. because their wife is of a particular faith)?
- Is it because they are perceived to have a particular characteristic (e.g. they are thought to be gay, when in fact they are not)?
- Is there a problem with a policy of the employer (e.g. a ban on wearing jewellery means that a Christian cannot wear a crucifix necklace)?
- Is there any justification for the policy – such as health and safety?
- Is there another way this could have been dealt with which would not have resulted in potential discrimination (e.g. could the necklace have been tucked under clothing)?
- Is the treatment because of something the perpetrator believes in? Or because of something the victim believes in?
- Is that belief personal to them and their association with a particular group? Or could anyone hold that belief?
- Has the victim been treated with a lack of dignity?
Answering these questions will help enormously in reaching a resolution. These issues are difficult to deal with and no two situations will be alike. At times it will feel as though there is no right way to resolving the conflict between two or more protected characteristics. Difficult judgements and decisions will need to be made but understanding the source of conflict and balancing the rights of each employee will be key in resolving the issues.
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