18 June 2010 #Employment
As millions of supporters from around the globe ascend on South Africa for the 19th FIFA World Cup, you might be forgiven for likening the tournament to a religious pilgrimage. Given that the Employment Appeal Tribunal considers that an individual`s belief in man-made climate change is capable of being a "philosophical belief" for the purposes of the Employment Equality (Religion or Belief) Regulations 2003 ("the Regulations"), could a devout England supporter in the World Cup claim protection under the Regulations?
Well, in order to qualify as a religious or philosophical belief capable of protection from discrimination, the belief must satisfy the following criteria:
It is not the tribunal`s function to assess the "validity" of a belief by some objective standard; the test, by the very nature of a belief, is subjective. When the World Cup comes around every four years, the passion with which England fans truly believe that this is the year that England will lift the famous gold trophy is irrepressible. That passion is genuine and is much more than a mere opinion or viewpoint. Given that England have only won the World Cup once, over 40 years ago, and since then have not even reached the final, the unshakable devotion of many England fans some might say is akin to another`s unquestioned belief in the existence and omnipresence of God in the absence of any empirical evidence.
Heineken recently carried out an international survey which found that English football fans spend more time talking about, and watching, football, than any other country in the world. According to the poll, which surveyed 5,300 male adults between the age of 25 and 40 in 15 different countries, the average Englishman watches two hours and 22 minutes of live or televised football a week. They also spend three hours and 21 minutes discussing results, goals and transfer stories with their friends.
Another recent survey found that the average fan spends 15 hours a week watching, reading and talking about the game.
Ask any "football widow" (or in some cases "widower") and they will tell you that for that one month in the Summer they hardly see their other halves and when they do, the conversation is limited to a detailed analysis of England`s fitness woes and whether they will finally shrug their reputation of poor penalty performances. Social events are planned around football fixtures, the cuisine on offer is made up of traditional football foods such as crisps, dips and popcorn - essentially anything which involves minimal diversion from the TV.
Although many "football widows" (or "widowers") may well argue that football conflicts with their fundamental right to demand the attention of their football devoted partners, football is clearly worthy of respect in a democratic society. The sport makes a significant contribution to the economy. According to business advisory firm Deloitte, Real Madrid recently became the first team in any sport to record revenues in excess of €400m in a single year.
It is certainly arguable then that football represents a weighty and substantial aspect of human life which is cogent, serious and important. Whether it would convince a tribunal that it falls within the definition of a religious or philosophical belief for the purposes of the Regulations is, however, in the writer`s opinion doubtful. The devout football fan is just as unlikely to persuade a tribunal that they should receive the protection of the Regulations as the "Jedi" knight who sought to claim religious discrimination against Tesco when he was ejected from a store for refusing to remove his cloak hood (The Sun, The Times, The Guardian 18 September 2009). A Tesco spokesman said at the time: "We would ask Jedis to remove hoods. Obi-Wan Kenobi, Yoda and Luke Skywalker all went hoodless without going to the Dark Side."
There are no reported cases of Jedi knights, who proclaim themselves to be part of the Star Wars faith - a "religion" practised around the world, bringing a claim of religious discrimination. However, recent case law has given employers welcome guidance on the scope of the protection offered by the Regulations. The cases draw a distinction between the essence of the person`s belief and the manifestation of that belief. The former is protected, the latter is not. So, an employer can insist upon employees not wearing visible jewellery, even where that prevents an employee of the Christian faith from wearing a cross pendant (a personal expression of her faith as opposed to a mandatory requirement such as a Seikh man`s turban) (Eweida v British Airways (2010)).
Another significant hurdle in the way of successful religious discrimination claims is where the Claimant`s beliefs contradict other fundamental human rights and employer`s legitimate anti-discrimination policies. Two recent, high-profile cases demonstrate this difficulty: a Christian relationship counsellor`s dismissal for refusing to provide psycho-sexual counselling to same-sex couples was not unlawful discrimination (McFarlane v Relate Avon Ltd ); and, similarly, in Ladele v London Borough of Islington , the disciplining of a Christian Registrar who refused to conduct civil ceremonies in respect of same-sex couples was not held to be unlawful.
So, employers faced with employees turning up for work in their England shirts, clutching a vuvuzela trumpet, can safely send the over-enthusiastic employee home with an instruction to come back with appropriate attire without fear of a complaint of religious discrimination.