Pagan Discrimination: Your Rights

Introduction

This is a look at human rights law, the right to equal treatment at work and in the supply of goods and services, and also the legal protection against threats and harassment.

Human Rights Law

The main source of human rights law in the UK is the European Convention on Human Rights. The Convention Rights are:

Article 2: Right to Life
Article 3: Prohibition on Torture
Article 4: Prohibition on slavery and forced labour
Article 5: Right to liberty and security
Article 6: Right to a fair trial
Article 7: No punishment without law
Article 8: Right to respect for private and family life
Article 9: Freedom of thought, conscience and religion
Article 10: Right to freedom of expression
Article 11: Freedom of assembly and association
Article 12: Right to marry and found a family
Article 14: Prohibition on discrimination
Article 1 of the First Protocol: Protection of property
Article 2 of the First Protocol: Right to education
Article 3 of the First Protocol: Right to free elections

The Human Rights Act 1998 provides that these rights can be enforced through the UK's Courts and Tribunals, with a final right of appeal to the European Court of Human Rights in Strasburg.  Legal action can be taken directly against public authorities, which are generally speaking organisations that have public and governmental functions, including national and local government, the police, the courts, and executive agencies such as English Heritage. If a court finds a right has been breached, the remedy can include a court order restraining the authority from further wrongful acts. Sometimes the authority may be liable to pay compensation for a loss suffered. The Act also provides that any legislation must, as far as possible, be interpreted (by the Courts) in a manner that is compatible with the Convention rights. At the moment, a Court cannot override decisions of Parliament, but very senior judges can declare a law to be incompatible with the Convention and the onus is then on Parliament to reform the law.

The right to hold and manifest a belief

The Convention right to freedom of thought, conscience and religion is found under Article 9 which states:

"1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

"2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."

We have a right therefore to hold a belief, to change beliefs and put those beliefs into practice (to 'manifest' them). Examples of manifesting beliefs are acts of devotion to a god or gods, taking part in rituals, telling others about a belief and acting out our ethical principles.

Article 9 protects religious and non-religious beliefs, philosophical and ethical stances; atheism and humanism are protected1 also vegan and pacifist beliefs2. Not quite every viewpoint and lifestyle is afforded legal protection however. The Courts have held that to be protected, a belief must profoundly affect a person's behaviour and outlook, so it must involve more than mere opinion or strong feelings3. There should be an identifiable and intelligible content to the beliefs, with a certain level of 'cogency, seriousness, cohesion and importance4.

Particular practice will be protected if it can be shown that the practice is not just inspired but is intimately connected with protected beliefs. While pagans are a diverse bunch, Article 9 should certainly protect pagans with a strong personal commitment to a particular tradition or path that has some readily identified beliefs, practices and/or ethics.

However the protection of Article 9 is not absolute. As with many Convention rights, there are exceptions. Public authorities can impose legal restrictions to achieve certain ends like preserving health and safety and the prevention of crime and disorder.  Many legal arguments in Human Rights cases concern when and how these exceptions should apply. A guiding legal principle is that the exceptions and restrictions should be no more than necessary in a democratic society to achieve the legitimate social aim (or in legal jargon, the restriction must be 'proportionate').

The way Article 9 has been applied by the Strasburg judiciary and, following them, by the UK judges does not exactly give a right to manifest beliefs at any time and place of one's choosing; the degree to which a person can insist on manifesting a right will often depend on each 'situation'.  There is case law that there may be no breach of Article 9 rights if a person is prevented from manifesting their beliefs in a particular job or as a member of a particular institution such as a school or university, as long as there is an alternative opportunity - even if the alternative involves taking a different job or moving institution6.   However other legislation may help in these cases.

Employment Equality (Religion and Belief) Regulations 2003

These regulations put into effect European law, namely the Equal Treatment Framework Directive7, and apply to employment, vocational training, further and higher education, workers involved in contracts for services, office holders including barristers, employment agencies, trade unions and professional bodies. Employers must apply the regulations when hiring, promoting, offering training opportunities, providing benefits and disciplining: so just about every aspect of the workplace is affected.

The regulations don't give a definition but the meaning of 'religion' or 'belief' should be in line with Article 9 of the Convention (as discussed above). References to belief here explicitly include non-belief. Pagans will welcome the fact that official guidance published by the government funded Arbitration Conciliation and Advisory Service (ACAS) mentions Paganism as a form of belief that the regulations are intended to protect. ACAS' official guidance on good practice sets the standard generally expected of employers, and their guidance helps Employment Tribunals apply the law in particular cases.

In the regulations, four types of discrimination are outlawed: direct, indirect, harassment and victimisation. We'll briefly look at these.

• Direct discrimination. This involves less favourable treatment of people on the grounds of a person's belief when compared to the treatment of another person where other relevant circumstances are the same. Some examples: where a person is denied a job, overtime or promotion simply because they are a pagan.  There is also protection against discrimination, not only for one's own beliefs but also by association due to the beliefs of family and friends. The law also protects those simply suspected of holding a particular belief, perhaps because of stereotyping.
   
• Indirect Discrimination. This is a little more complicated and occurs where a provision, criterion or practice of an employer (e.g. staff rules, facilities or contract terms) is applied to everyone in similar circumstances but has the consequence of causing disadvantage or greater difficulty for particular faith groups even if the disadvantage was not intended.
  
  Some examples: employers imposing a rigid dress code that conflicts with the dress required by a particular faith; employers not providing vegetarian options in a work canteen so vegetarians are forced to eat out; employers only providing alcoholic drinks at social events so forgetting the needs of those who object to alcohol; employers restricting job advertising to publications known to some faith communities but not others; or employers restricting choice of holiday dates so believers can't enjoy holy days or festivals.
  
  Indirect discrimination may be justified if this is the best way to achieve a legitimate aim. (The range of justifications may include everything from serious health and safety concerns to something much more nebulous and often worth arguing about, such as an alleged need to satisfy reasonable customer expectations of dress etc.) An employer will probably justify indirect discrimination if your long beard might be caught in machinery, or a retailer stops holidays in the late autumn as all members of shop staff are needed before Christmas.
  
  In a recent case8, the Court of Appeal considered the actions of an employer who had banned personal displays of jewellery. An employee claimed she was indirectly discriminated against when prevented from wearing a pendant with a (Christian) religious symbol. Though recognising the employee's personal attachment to the symbol and its spiritual meaning for her, the Court stated that, as indirect discrimination concerned group disadvantage, the claimant must show it is possible to make a general statement about  the practice that is required or characteristic of the faith group. It was found that wearing a religious pendant was not required nor particularly characteristic of Christians or her sect, rather it was just an idiosyncratic and personal preference. Therefore, the Court found, there was no group disadvantage and no indirect discrimination. One might comment here that it is often difficult to say what characteristic pagan practice is, and whatever it is, we can be sure most pagans won't insist upon it! Of course our particular expression of belief may indeed be very individual to us, though here we might also comment that the general concern of ACAS guidance is that good employers should genuinely consult and try to accommodate any individual sensitivity.
  
• Harassment. A person may suffer for their beliefs, ranging from mild but persistent teasing through to intimidation and physical violence carried out by managers or co-workers. Harassment, as defined by discrimination law, includes the creation of a hostile or degrading work environment. It may itself be religiously motivated, e.g. attempts to morally condemn or proselytise (convert). ACAS guidance does not recommend though that employers prevent polite debate or questioning of beliefs, as this is counterproductive. When assessing whether someone is being harassed, a Tribunal will consider both an objective view (what most people think is unacceptable) as well as the alleged victim's perception.
   
• Victimisation. This can involve mistreatment because someone has complained or might complain about discrimination or for assisting someone else's complaint e.g. as a witness. Victimisation also occurs if a former employer retaliates by providing a hostile and unreasonable job reference9.

An employer is liable for the discriminatory behaviour of his employees unless the business took all reasonable steps to prevent this - as a minimum this will mean clear policies, disciplinary rules and regular staff training on the issue.

A manifestation of belief is not protected by the regulations if it conflicts with other anti-discrimination legislation, e.g. on grounds of belief, refusing services to a particular sexual orientation - a court will not set one right to equal treatment against another10.

In a very limited set of circumstances, the employer is allowed to discriminate on grounds of belief or non-belief (but not harass or victimise). This exception applies if there is a Genuine Occupational Requirement (or GOR for short). A GOR applies if a particular belief is a determining part of a job, the most obvious example being the role of a religious minister, priest or similar functionary.

Harder to understand and also controversial, a GOR can apply when an employer wants to maintain a particular faith ethos. 'Ethos' is left undefined but the word usually means the set of beliefs and values that give an organisation its distinct character and motivation. From the preceding parliamentary debates on this subject, it is apparent that this GOR rule was intended by our law makers to allow faith schools or faith welfare organisations to discriminate in their choice of staff.

However, the Courts and Tribunals interpret GOR exceptions narrowly. It is the responsibility of the employer to justify why a GOR should apply for each role. It is no use an employer claiming an ethos that does not reflect how they have historically operated11. An employer may have difficulty showing why a GOR must apply to administrative or support staff that don't lead or speak for the faith-based organisation. A GOR also won't apply if job tasks could easily be re-assigned so belief is no longer at issue.

Most employment problems are best resolved informally. Generally, you should raise a formal grievance in writing and give the employer a reasonable time to respond. For employees, the regulations are enforced through Employment Tribunals - a quicker and more informal procedure than the court system, though legal costs are not usually recovered even if you win. Strict time limits apply to making Tribunal Claims and it is important to get appropriate legal advice very early on. There is no cap on the amount of damages that can be awarded in discrimination cases, which may include compensation for injury to feelings and personal injury.

The Equality Act 2006

Part 2 of the Equality Act outlaws discrimination on grounds of religion or belief (including non-belief) in the provision of goods and services.

The Act applies to anyone usually offering goods and services to the public (whether charged or free). The Act covers all shops and businesses, also taxis, home helps, plumbers, and other trades. It extends to the provision of entertainment, recreational facilities, and accommodation such as hotels and camp sites. Discrimination by public authorities with regard to their services is unlawful.  A business or organisation is liable even if the discrimination is committed by their agents or employees without their knowledge.

The Equality Act follows a similar pattern to the employment regulations, outlawing direct discrimination, indirect discrimination, harassment and victimisation.

The following must not be done on the grounds of a customer's or client's religion or belief:

• Refusing to serve or offering a reduced range of goods and services - but the rule does not require a business to provide different or new goods and services, e.g. you can't insist that Tesco should provide pagan materials or books for sale.
   
• Offering persons of a certain belief inferior goods or services, and this includes offering services in a hostile or discourteous manner.

Contract terms requiring or causing discrimination are unenforceable. Advertisements are unlawful if they suggest an intention to discriminate.

There should be no discrimination when disposing of, selling or letting premises or giving access to premises or facilities normally available to the public. There are a few exceptions such as where the landlord or his close relatives live on the property.

The Act does not prevent organisations involved in the teaching, practising or advancing a particular faith from only offering membership to persons of that faith, or offering services and accommodation only to their own members. However this exception does not apply to activities that are commercial in character.

The services offered by 'ministers of religion' (for example religious training, weddings and funeral services) can be discriminatory: e.g. the vicar can't be made to do a hand-fasting. The definition of a 'minister of religion' would almost certainly include many humanist and pagan celebrants.

Charities cannot discriminate unless their constitution specifies that they exist for a particular religious purpose.  The Act makes a series of concessions to allow faith schools to discriminate on grounds of religion, and they can continue to accept or exclude pupils on this basis. The Act doesn't apply to the curriculum or acts of school worship (which are covered by other legislation/guidelines). Generally, the Act does not apply to the operation of Parliament, the judiciary, criminal proceedings and immigration control. Discrimination may also be justified on grounds of "national security" - a rather ill defined exception.

It is best to resolve complaints using an organisation's complaints procedure or by alternative dispute resolution methods such as mediation. Legal action should be a last resort, but a claim of 'breach of statutory duty' must be brought in the County Court (Sheriff Court in Scotland) within 6 months of the act or last of a series of acts complained about. Compensation is payable for provable financial losses and injury to feelings, but there is also a risk in some cases of becoming liable for very substantial legal costs, certainly if the case is lost. It is strongly advisable to get professional legal advice well before issuing any proceedings.

The Racial and Religious Hatred Act 2006

This law amends the Public Order Act 1986 to make it a serious crime (with a maximum penalty of seven years in prison) to engage in 'threatening behaviour' intended to cause religious hatred. The threats can be in any medium including books and film recordings if exhibited beyond the exclusive privacy of one's own home. However a person is only likely to be convicted of this offence if they deliberately call for violence against a religious group or non believers. After lobbying by writers, comics, entertainers and even religious leaders, there is a major concession in the Act to protect freedom of expression. With regard to the new offence, the Act says the following:

"Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system." [In the Schedule this clause  is inserted as the new section 26J of the Public Order Act 1986.]

So ridicule and insults in public and even attempts to strongly persuade people to change their beliefs, that fall short of calling for actual violence against anyone should (in theory) not be caught by the religious hatred law. Most people will agree that a reasonable balance has to be struck between protecting people from abuse due to their beliefs and the need to uphold freedom of expression.

The Protection from Harassment Act 1997

This Act is not specifically about belief discrimination but can provide another remedy for those who face particularly nasty, persistent mistreatment. The law says a person must not pursue a course of conduct that amounts to harassment or which he knows or ought to know amounts to harassment. Employers can be sued for harassment caused by their employees, under the principle of 'vicarious liability'12.

A course of conduct is defined as at least two incidents though need not be the same act each time. It is not necessary to know the motivation behind the harassment, which can include speech, gestures, stalking and pranks - anything that a reasonable person would consider capable of causing alarm, anxiety or distress. An accusation of harassment under this Act is a still a very serious allegation. Even in civil cases the severity of the behaviour complained about should be such that each of at least two incidents could properly attract criminal liability too13.

If polite requests to stop don't work or are not appropriate, then enforcement is again by means of legal action in the County Court and/or reporting the matter to the police. The harasser can be made subject to a restraining order or injunction to stop the behaviour and to keep them away from their victim. If they don't comply, they may face arrest and contempt of court proceedings - and a prison sentence. The harasser could also be made to pay compensation for the anxiety or injury caused.

The police will often formally warn the alleged offender first. If prosecuted and the magistrates or a jury are sure the criminal offences under the Act of harassment and/or threats of violence are proven, a conviction could result in fines and/or a prison sentence.

Appendix 1 - Organisations that may help

The Equality and Human Rights Commission

Created by the Equality Act 2006, the Equality and Human Rights Commission has legal powers to investigate, warn organisations and take legal action against anyone acting unlawfully with regard to all types of discrimination and in breach of human rights cases. Because of limited resources they will only fund a selection of cases if a decision affects many people, clarifies or develops the law.

ACAS - The Arbitration, Conciliation and Advisory Service

A publicly funded body charged with improving workplace relations through alternative dispute resolution, and by providing advice and training to employers and employees. They publish a great deal of guidance on the best employment practice (that is available to buy or download). Their website is http://www.acas.org.uk/ and their employment helpline is  0857 47 47 47.

Other Sources of free or low cost help and advice:

Citizens Advice Bureaux and Law Centres; Trade Unions (if you are a member), and Legal help lines are often provided by Home and Motor Insurance companies. Trade Unions and Legal Expenses Insurers may also fund legal claims if a case has sufficiently good prospects of success, and subject to membership/existing policies and the terms of these.

Solicitors

For the best independent and professional advice, consult a solicitor who specialises in discrimination and employment law. They will also advise on how a claim may be funded. The law society can help you find a solicitor: visit www.lawsociety.org.uk.

Appendix 2

FREQUENTLY ASKED QUESTIONS

Q: I would like to insist on time off work to celebrate Samhain. I have already used up all my holiday entitlement for this year.

A: he employer won't have to give you extra time off. If you were still owed holiday entitlement, the employer would need a legitimate business reason to turn you down when asking for a particular day off (assuming you gave appropriate notice) to celebrate your beliefs. To help your employer, the official ACAS guidance includes a handy appendix with major religious festivals including the traditional 'wheel of the year' festivals of pagans.

Q: My boss says I am not allowed to wear jewellery at work that I consider expresses my paganism. The boss allows Christians to wear crucifixes, but won't allow me to wear my crystal pendant which is the same size. He hasn't justified the rule to me, except to say that it's what customers expect.

A: Good industrial relations practice suggests the employer should consult before imposing a dress code and be flexible where possible. The employer would be wise to apply the same rules to all as you could bring a claim of direct discrimination if you are treated less favourably than Christian members of staff. It is unlikely that you would have a claim for indirect discrimination if the employer applied the rule consistently as it may be very difficult to show that only pagans typically wear that kind of jewellery or that it is a requirement of Pagan beliefs. Also, depending on the business context (e.g. whether you actually meet customers), the boss might justify the rule by reason of business need if its effect is not disproportionate to the result wanted, capricious or arbitrary.

Q: My colleague is an extremely keen Christian who keeps telling me that my paganism is wrong and trying to convert me. What can I do?

A: Employers are not expected to ban all reasonable discussions of religion at work even if contrary views are expressed. They can be opportunities to learn about each other. However, if he won't simply agree to disagree, you should politely ask your colleague to stop if their behaviour causes you distress. Beyond that, you may have to consider making a formal grievance to your employer who would be obliged to investigate and, if appropriate, discipline the colleague. The unwanted behaviour, if persistent, could be considered harassment on grounds of your belief (or lack of it).

Q: In the winter, our Grove would like to meet in the local church hall for a celebration. It is the only hall available in our village. The vicar says we can't use it because our beliefs are 'anti-Christian' though other members of the public can readily hire the hall for social club meetings and family parties.

A: The vicar or parish council is almost certainly in breach of the Equality Act 2006 by refusing the opportunity to use its premises. If the church hall was exclusively for use of church members and connected religious groups, this would be a different matter, as the vicar would have a defence under the Act. Despite its established status, the Church of England is not considered to be a public authority for the purposes of the Human Rights Act14.

Appendix 3  Examples of discrimination against pagans

A 2001 study, Religious Discrimination in England and Wales, Home Office Research Study No. 220, February 2001, published by The Research, Development and Statistics Directorate, recorded the following as typical instances of religious discrimination experienced by pagans:

• Stereotyping of beliefs;
• Posters ripped down;
• Anti-pagan propaganda from other faith groups;
• Meetings disrupted;
• Exclusion from interfaith activities;
• Refusal of use of a church hall;
• Car tyres slashed; and
• Accusations of child abuse.

Footnotes - case law

1. Kokkinakis v Greece [1994] 17 EHRR 397, Ct.
2. H v United Kingdom [1993] 16 EHRR CD44, Cm;  Le Cour Grandmaison  and Fritz v France [1989] 11 EHRR 46, Ct.
3. McFeeley v UK [1981]: 3 EHRR 161
4. Campbell and Cosans v UK [1982] 4 EHRR 293
5. Sahin v Turkey, (Application No 44774/98, 10 November 2005, unreported) para   105. See also Ahmad v United Kingdom [1981] 4 EHRR 126, para 11.
6. See Stedman v United Kingdom [1997] 23 EHRR CD 168 and  R (on the application of Begum) v Denbigh High School [2006] UKHL 15; [2007] 1 AC 100
7. Council Directive 2000/78/EC of 27 November 2000
8. Eweida v British Airways Plc [2008] UKEAT/0123/08
9. Rhys-Harper v Relaxion Group Plc [2003] IRLR 33, HL
10. Ladele v London Borough of Islington [2008]  UKEAT/0453/08/RN
11. Sheridan v Prospects for People with Learning Disabilities [2007]
12. Majrowski v Guy's and St Thomas' NHS Trust [2006] UKHL 34
13. Conn v Sutherland City Council [2007] Court of Appeal
14. Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37

Author

This Article was written by Phil Whitehorse in 2009.

Disclaimer

This article is not intended to constitute legal advice, nor is it intended to be a complete and authoritative statement of the law. Legal advice should always be sought to confirm whether or how any information in this article applies to your particular situation.

TDN accepts no liability for any adverse consequences arising from reliance on this article in place of getting legal advice.