Draft EHRC Code of Practice: Don't Panic!

Ever since the Employment Appeal Tribunal’s (EAT) decision, in 2009, that a belief in climate change was capable of being protected under discrimination law (external website), there’s been much discussion as to what other beliefs might be covered.

It’s impractical for the legislation to list every belief that would or wouldn’t be protected - there are an infinite number of philosophical beliefs - and so the Government understandably left it to the courts to decide.

But the word “belief” is notoriously difficult to define even outside the legal sphere, so it’s no wonder that there’s a lot more work for tribunals to do to determine exactly what philosophical beliefs are and aren’t capable of being protected under discrimination law. It’s also no wonder that employers are a bit confused.

However, amid all the talk of scientology and political philosophies being potentially protected, employers need to remember that the EHRC draft Code - which doesn’t actually say anything new as regards religion or belief discrimination - is not a statement of the law, as indeed its introduction explicitly states.

The Code will need to be taken into account by tribunals but that’s as far as it goes, and the law will continue to be determined by the legislation as interpreted by appellate courts - and note that the Equality Bill (external website), as currently drafted, doesn’t change the existing statutory definitions of “religion” or “belief”.

Employers also need to bear in mind that just because a belief is capable of being protected, that is just the first step for a claimant. The EAT decision mentioned above held that a belief in climate change could be protected, but Mr Nicholson will now need to convince a tribunal that his belief was the reason for his alleged detriment.

In other words, in order to succeed, an employee claiming they’ve been discriminated against will need to prove that their alleged detriment was due to their particular philosophical belief; and they will always find this difficult if the employer has treated the employee fairly and can back that up with credible evidence.

Finally, employers can successfully defend claims of indirect discrimination if they are able to objectively justify their actions. This is crucial, as many of the theoretical examples being bandied around at the moment - such as vegans complaining about a company’s leather chairs - would fall into the category of indirect discrimination, and might well be capable of being justified.

While the debate over the EHRC draft Code rages on, why not refresh yourself on the topic with XpertHR’s FAQ section on religion or belief discrimination, which includes answers to the following:

• Can an employer be liable for harassment of an employee by other employees because of his or her religion or belief?
• Are companies required to provide a prayer room for staff?
• Should employees who practise faiths other than Christianity be given additional annual leave to enable them to celebrate religious festivals?