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Wake-up call: Why you have to respect your employees' beliefs

10 June 2011
Wake-up call: Why you have to respect your employees' beliefs

The Equality Act includes provision for discrimination against philosophical beliefs.Nicola McMahonandSue-Lyn Cashman-Pugsleyexplain

THE PROBLEM
Could you define a philosophical belief? How would you distinguish this from a political belief, a preference or an opinion?

THE LAW
The Equality Act 2010, which replaced the Employment Equality (Religion or Belief) Regulations 2003, prohibits discrimination in the workplace, including victimisation and harassment, by reason of religion, religious belief or philosophical belief.

The act itself states that belief encompasses any religious or philosophical belief and that a reference to belief includes a lack of belief. The explanatory notes to the act provide a non-finite list of religions, however, humanism and atheism are the only examples given of a philosophical belief.

Recent cases have put the definition of philosophical belief under the microscope and developed the following guidance to assess whether a belief qualifies a religious or philosophical belief:

â- It must be a belief, not an opinion or viewpoint based on the present state of information available.

â- It must be a belief as to a weighty and substantial aspect of human life and behaviour.

â- It must attain a certain level of cogency, seriousness, cohesion and importance.

â- It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

In 2009, an employment tribunal applying the above guidance established that a belief in man-made climate change, and the resulting belief in the existence of a moral duty to live in a way that mitigates or avoids it, was capable of being protected as a philosophical belief. An employment tribunal has more recently found that a general belief in the sanctity of life, including opposition to fox hunting and hare coursing, and a belief in the "higher purpose" of public service broadcasting both constitute philosophical beliefs which qualify for protection under the act.

Each of these cases was decided following a full analysis of their specific facts and the beliefs of the employee. Therefore, anti-foxhunting supporters will not necessarily have a philosophical belief in the sanctity of life which is protected under the act. However, the employees in these cases were able to convincingly argue that their beliefs satisfied all elements of the guidance set out above.

Not all cases brought on the basis of discrimination on grounds of philosophical belief have been successful, for example, an employee failed to convince a tribunal that his support of a political party fell within the description of a philosophical belief. However, the range of judgments has left a potential gateway for a belief in a political philosophy or doctrine to qualify as a philosophical belief.

EXPERT ADVICE
If an employee is known to hold a belief that affects their lifestyle, an employer should consider whether any aspects of the employee's work or working environment may have a negative impact upon the employee. If certain elements of working practice are identified, for example, the handling of specific foods or use of specific products, which may affect the employee in question, reasonable alternatives or adjustments to such practices should be considered.

In addition, should an employee raise an issue with their employer relating to their beliefs, the employer should deal with their concerns properly, including meeting with the employee to discuss how best to resolve the problem and, if the employee so wishes, investigate with the matter as a formal grievance.

BEWARE
An employee's beliefs will impact on the way they carry out their work. It is vital that the employer does not allow less favourable treatment of an employee as a result of their beliefs. Should an employee be successful in bringing a claim for discrimination under the act, there is no set let limit on the level of compensation an employment tribunal can award. Defending such a claim will also be costly for employers and may attract negative publicity.

CONTACT
Nicola McMahon and Sue-Lyn Cashman-Pugsley, Charles Russellnicola.mcmahon@charlesrussell.co.uk
sue-lyn.cashman-pugsley@charlesrussell.co.uk

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