Keeping the faith

Employers should not be burdened with the task of determining which religious beliefs are protected by legislation, argues Makbool Javaid

The government recently published the Employment Equality (Religion or Belief) Regulations 2003.

Discrimination on the grounds of religion and belief in employment must be outlawed by December 2003, under the EU Employment Framework Directive 2000/78/EC.

The directive also requires discrimination on the grounds of sexual orientation (2003) , disability (2004) and age (2006) to be outlawed.

The government will introduce these measures by way of ministerial regulations under the European Communities Act 1972.

By doing so, ministers avoid constructive criticism in Parliament.

While the executive always sees advantages in avoiding the parliamentary process, the public is denied the clarity in legislation that comes through informed debate.

There is a major hole in the regulations: there is no definition of either religion or belief save an indication that belief has to be of a religious nature or 'similar philosophical belief'.

The explanatory notes, which do not form part of the regulations, speculate that this definition would exclude political beliefs and that as far as religion is concerned, the factors to consider included collective worship, clear belief systems and a profound belief affecting someone's way of life or view of the world.

In short, the government has passed the buck to the judiciary.

Until we have clarity every employer is placed in the position of determining which belief systems are worthy of protection.

The government knows the sensitivity of the issue - what one person holds as sacred may appear absurd or anathema to another.

The inability of the courts to create a workable definition of religion is well known to charity law practitioners.

In modern times, there has been and continues to be a great interest in new-age religious movements and other forms of belief outside of the established world faiths.

The regulations have to be consistent with the Human Rights Act 1998.

The Strasbourg Court has a broad view of faiths - apart from the main religions, the Church of Scientology, the Moon sect, Druids, vegans, Krishna Consciousness movement and atheism have all been accepted.

Why should employers have to make the decision, so that the government can avoid hostility? Businesses should not have to determine whether paganism, Satanism or other movements come within the definition of religion or belief.

The law will indeed be an ass if only expensive litigation can determine whether a movement considered by the employer to be a cult turns out to be a bona fide religion.

The government intends to publish a code of practice, but this will not have the force of law and will not provide a clear direction to the majority of employers who want to take a positive approach to the issue.

It will be impossible to change policies when there is no clear mechanism to determine whether a particular belief comes within the legislation.

The failure to define religion is a catalyst that will create more confrontation.

There continues to be a growth in alternative lifestyle movements.

Employers should not have to go to court to determine which are covered by the legislation.

The government should have made it much more clear.

Even better, the government could have published a list of those beliefs - religious or philosophical - that are within the regulations.

If that had been done, then all the feelings of rejection and protest would have been directed at the government.

By refusing to go down that road it has ensured that it will be an employers' problem until the courts are able to come up with a clearer definition.

The Law Society, in the midst of a consultation about including religion in its anti-discrimination practice rule, ought to take heed.

Makbool Javaid is an employment partner at City firm DLA and member of Law Society's employment committee