New equality guidance "recommends best practice" rather than creates new rights, says expert

Leah de Vries of Pinsent Masons, the law firm behind Out-Law.com, was commenting after a number of publications, including the Telegraph said that the document would see "vegans and druids gain workplace rights". The guidance (12-page / 103KB PDF) was published in February by the Equality and Human Rights Commission (EHRC), an independent public body established to reduce inequality.

"There are no 'new equality rules'," de Vries said. "The law in issue here is the Equality Act 2010, more specifically the provisions on indirect discrimination which are long-established. The EHRC Guide also covers the interpretation of articles nine and 14 of the European Convention on Human Rights, which is again long-established. The guidance is relatively new, but is merely guidance. In any event, it doesn't contain anything that hasn't already been established in various cases."

"Employers should focus on giving genuine consideration to employee requests based on religious or philosophical beliefs and conducting rigorous analysis of any refusals. Rather than questioning the nature of the belief, the focus should be on practicalities: what difference will this make? Who, if anyone, will be negatively affected? This sort of approach is most likely to keep employers on the right side of the law," she said.

The EHRC published the new guidance following the judgment of the European Court of Human Rights in four combined cases about religious rights in the workplace in January 2013. The Court found that a member of British Airways staff who identified as Christian was entitled to wear a cross at work, regardless of her employer's uniform policy, but rejected three other claims for religious discrimination. It confirmed that no changes to UK discrimination law were needed, stating that the right to manifest religion "must be balanced against the rights of others".

Although the cases were brought by Christians, the EHRC said that the implications of the judgment would apply to employees with "any religion or belief, or none". The guidance applies to all employees whose religion or belief is "serious, genuinely and sincerely held", and addresses how employers can decide whether this is the case. It also contains a selection of examples of requests and how employers might deal with them.

In its article, the Telegraph said that the guidance meant that vegetarian or vegan employees should be allowed to refuse to clean out office fridges containing meat or dairy products; and that ecologists could ask to be excused from duties that increase CO2 emissions, such as flying to business meetings. However, employment law expert Leah de Vries said that the point of the guidance was not to define what beliefs received protection, as this was already covered by the relevant case law.

"There have been some interesting cases on this point: spiritualism and belief in the ability of mediums to contact the dead was protected in the 2009 Power case, anti-foxhunting was protected in the 2009 Hashman case and environmentalism and belief in climate change protected in the 2010 Nicholson case," she said. "However, whilst these cases have been individually controversial, they haven't triggered the 'floodgates' that some feared and the guidelines that came out of the Nicholson case have provided sensible and useful parameters."

"There have also been cases where these guidelines have been applied to reject a claim for protection of particular beliefs, albeit genuinely held: poppy wearing in the 2011 Lisk case; and 7/7 and 9/11 being false flag operations and media conspiracy in the 2010 Farrell case," she said.

De Vries said that the more interesting points in the guidance related to how employers could justify their decisions, rather than the status of the employees' beliefs. The guidance promotes a "balanced approach"; calling on the employer to "genuinely ask itself if its desire to 'treat everyone the same' is necessary and appropriate", she said.

"Many managers would say that this is already the approach they take to managing their people, and their concerns or personal issues, regardless of the legal obligations," she said. "They manage people as individuals in this way because it is effective and promotes good relationships."

"Even if the guidance was binding, it merely recommends that it is good practice for employers to consider requests made by employees and not to dismiss them as trivial or irrelevant. The guidance encourages employers to listen to employees who find particular tasks, timings, policies or practices place them in conflict with their beliefs and consider whether they can accommodate changes. It is made clear that employers should do this only if the changes can be accommodated without too much of an impact on the operations or service, the clients or customers or the wider workforce," she said.