Religious Discrimination – January 2014
The complexities of navigating the law concerning religious discrimination continue to give rise to interesting issues, this last month seeing decisions handed down in the cases of Mba v. London Borough of Merton  EWCA Civ 1562 and Grace v. Places for Children  UKEAT 0217/13.
When considering religious discrimination we have to be concerned not only with the provisions of the Equality Act 2010, which prohibits discrimination, victimisation or harassment because of a religious belief (or lack thereof), but also with Article 9 of the ECHR. Art 9 recognises an absolute right to religious freedom and a qualified right to manifest religion. (See earlier article on the cases of Eweida and others
In Mba v. London Borough of Merton the ET had considered that it was not a core component of the Christian faith to desist from working on a Sunday. The CA have reconfirmed that it is not proper to undertake such an enquiry – an individual is at liberty to hold his or her own religious beliefs, however irrational or inconsistent they might seem. However, the tribunal had been entitled, in determining this indirect discrimination claim, to conclude that the requirement to participate in the rota of Sunday working was justified on the facts presented to it. Therefore, Ms Mba’s manifestation of her Christianity – preventing her from working on Sundays – did lead to unfavourable treatment, but this treatment was justified and her claim therefore failed.
Grace v. Places for Children also brings into focus the distinction between the protection given to holding a belief, and whether it is permissible to place limitations on a person’s right to manifest that belief. The EAT have held that there is no clear dividing line between the two. However, if the manifestation of a belief is in issue – for example not wanting to work on Sundays (as in Mba), or seeking to have a certain dress code (as in Eweida), it is likely to be a claim for indirect discrimination, and the employer can argue that their policy – for example of including everyone on a Sunday working rota – is justified. The EAT in Grace examined the Code of Practice on Employment 2011, issued by the EHRC, and stated that properly considered;
"there is no clear dividing line between holding and manifesting a belief and that an unjustified unfavourable treatment because an employee has manifested his or her religion may amount to unlawful discrimination."
On the facts of Grace, the tribunal was entitled to find however that the reason for her dismissal was not because of her religion – but because of the way in which she manifested it.
The difference between treatment being because of the manifestation of a belief, and because of the manner of that manifestation is such that further litigation is likely!