Following a week in which Danny Baker’s dismissal by the BBC emphasised the blurring of boundaries between personal and work lives, specifically where an individual’s use of social media which is considered to be not in their employer’s best interests, our Employment department takes a look at discrimination relating to religion or belief.
‘Religion’ under the Equality Act 2010 means any religion, and any reference to religion also refers to a lack of religion. Similarly, ‘Belief’ means any religious or philosophical belief, and any reference to ‘belief’ also refers to a lack of belief.
As you would expect, all religions have similar importance whilst, interestingly, individuals can claim discrimination in situations where both they and the perpetrator are members of the same religion and the perpetrator treats them less favourably because of their lack of religious belief in one or more aspects of the shared faith.
What amounts to a religious or philosophical belief is more open to interpretation although this must be a genuine belief on a weighty and substantial aspect of human life and behaviour which manifestly has sufficient cogency, seriousness, cohesion and importance, and is be worthy of respect in a democratic society yet is not incompatible with human dignity and does not conflict with the fundamental rights of others. Political beliefs are capable of protection, even where these may be divisive or objectionable to some colleagues – the Redfearn case which went before the European Court of Human Rights (https://bit.ly/2Hp3fN9) effectively dismisses our prevailing domestic view that membership of a particular political party would probably not amount to a philosophical belief, particularly one espousing political philosophies viewed as vile and obnoxious by the majority of society.
A particularly thought-provoking case has arisen following action taken by Rugby Australia against Israel Folau for a series of Instagram posts containing biblical quotations and stating that hell awaits “drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists and idolaters”. At the time that he posted these views in April this year, Folau was subject to a warning for previous comments on social media which he had denied were homophobic and resulted from him being a member of the Assemblies of God, a religious movement with a central belief in the literal interpretation of the bible. Rugby Australia took the view that the posts contravened its inclusiveness policy within the code of conduct Folau had agreed to observe and indicated its intention to terminate his contract, although Folau has now been given an opportunity to respond to the disciplinary allegations.
The fundamental human rights to not be discriminated against on the ground of sexual orientation and to freedom of religion and expression have clashed before. In the case of Lee v Ashers Baking Co Limited, a bakery’s refusal to supply a cake with the message ‘support gay marriage’ reached the Supreme Court where it was found not to be discriminatory on the basis that the objection was to the message, not the messenger. The bakers’ right to freedom of religion and expression was also relevant – it was held that the objection was based on their Christian belief that same-sex marriage was sinful and whilst it would have been discriminatory for them to refuse to bake the cake because Mr Lee was, or thought to be, gay or associated with the gay community, they could not be obliged to manifest a belief that they disagreed with and which would limit their right to freedom of religion.
Should not the same reasoning have applied to Israel Folau or were Rugby Australia justified in compelling him to express a message with which he disagreed? Arguably, Folau has not been afforded the same freedom of expression as his employer – Rugby Australia publicly supported same-sex marriage when Australia voted on this issue which is considered by our courts to constitute a political belief – and in so doing Rugby Australia are breaching their own policy to treat everyone fairly. Rugby Australia might argue that Folau faces disciplinary action as a result of his failure to comply with its code of conduct and not for expressing his Christian faith. Certainly, a distinction can be drawn between holding a religious belief and inappropriately expressing that belief, particularly in relation to the words and language used.
This is indeed a complex area and the sexual orientation/religion conflict one which is likely to recur. In a similar case to Lee, the US Supreme Court overturned an earlier ruling that religious beliefs cannot legitimately be carried into the public sphere or commercial domain when it decided that a baker’s First Amendment right to religious freedom had been violated after he was prosecuted for refusing to bake a cake to celebrate a same-sex marriage based on his devout Christian beliefs. Meanwhile, the fallout from Folau case has already caused ructions over here as England’s Billy Vunipola was warned by the Rugby Football Union for ‘liking’ Folau’s original post, an act which polarised opinion amongst his team mates and fellow professionals.
Care must always be taken when investigation any allegations of discrimination however this is particularly so where an issue or dispute involves contrasting protected characteristics. A balance must always be struck between recognising individuals’ protected rights and upholding those of their colleagues and the wider public, along with the commercial interests of the business. It therefore makes sense to take advice from a discrimination expert at an early stage so for assistance with these and any other employment law matters, please contact Paul Clark, Head of Employment, Jacksons Law Firm.