The religious discrimination regulations are a welcome step forward in prohibiting racist behaviour, says Mohini Bharania

The EC Equal Treatment Framework Directive (No 2000/78) required the implementation into English law of provisions that prohibited discrimination in employment on the basis of religion or belief by 2 December 2003.


The Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660) were adopted to give effect to this obligation.


The regulations have been the subject of considerable discussion. However, what seems to have been largely overlooked is the relationship between the regulations and article 9 of the European Convention on Human Rights. The obligations imposed on the state by the latter will be a relevant consideration for any court or tribunal.


In the regulations, religion or belief is defined as being 'any religion, religious belief or similar philosophical belief'. This approach can be compared with the more comprehensive article 9(1) of the convention that states that: 'everyone has the right to freedom of thought, conscience and religion...either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.'


However, article 9(2) imposes some limitations on the rights and freedoms articulated in article 9(1). Thus the freedom to: 'manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and 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.'


Given the ambiguity of the definition in the regulations, its exact scope will have to be determined by domestic tribunals and courts and most likely by reference to the European Court of Justice (ECJ). All of these courts will be heavily influenced by the article 9 jurisprudence of the European Court of Human Rights (ECHR), as the convention is binding on all community member states. Furthermore, convention jurisprudence is fundamentally important to the ECJ in determining the content of community law.


While in some instances reference to the convention may be useful, for example, in determining whether a particular belief system or practice amounts to a religion, in other cases, there may be potential problems as a consequence of the relevance of article 9.


In particular, the outcome of some cases may depend on how much weight is given to the convention in the balancing exercise that must be undertaken under the regulations.


For example, under article 9 of the convention, the ECHR has long upheld the right of people to proselytise their faith. For example, there is the case of Kokkinakis v Greece, ((1993) 17 EHRR 397). In that action the ECHR upheld the right of a Jehovah Witness to proselytise despite the activities being described by the Greek court as an attempt to intrude on the religious beliefs of orthodox Christians with the intention of undermining them.


A number of other religions also consider proselytising their faith to be an inherent aspect of their belief.


However, the regulations outlaw a number of different types of behaviour, including harassment, on the basis of a person's religion or belief. Furthermore, the prohibited behaviour does not have to be directly committed by the employer, who may be responsible for the acts of other employees.


It is possible to envisage a situation in which an employee either complains to, or brings an action against, an employer, under the regulations, for the latter's failure to stop a colleague proselytising a faith in a manner considered to be humiliating. Yet, the person proselytising may consider that any disciplinary action that may ensue interferes with the right to manifest a faith as article 9 has been interpreted to allow by the ECHR.


Even though the regulations do not extend as far as Article 9 does, the provisions of the convention and the Strasbourg court's jurisprudence will be a relevant consideration for domestic courts and tribunals in interpreting the regulations, especially if the employer is an emanation of the state. Even if the employer is not an emanation of the state, the courts and tribunals will have to interpret the regulations under the Human Rights Act with the article 9 jurisprudence in mind.


However, there are other areas in which reference to article 9 of the convention will be useful. This is especially likely to be the case with regard to the definition of 'any religion, religious belief or similar philosophical belief' under the regulations. There has been much debate and comment about the ambiguity of this definition and its potential scope. Traditional established faiths, such as Islam and Judaism, will undeniably be covered. What is unclear, is how far the regulations will provide protection to those who subscribe to less traditional faiths or none at all.


The article 9 jurisprudence displays many of the problems that will be faced by domestic courts and the different approaches that can be taken and their consequences. It is to be hoped that they will not get themselves into the conceptual quagmire that the Strasbourg court has sometimes found itself in, but learn from some of the problems that have emanated from the Strasbourg jurisprudence.


Article 9 of the convention refers to religion as well as thought and conscience, which has allowed the ECHR to also protect those belief systems that are less traditional as well as those persons who do not subscribe to any belief. Thus, for example, in the case of Arrowsmith v United Kingdom ((1978) 3 EHRR 218), the ECHR recognised pacifism as a belief that fell within the scope of protection afforded by article 9(1).


Furthermore, the court expressly stated in the case of Buscarini v San Marino ((1999) 30 EHRR 208) that article 9 covers the freedom not to hold religious beliefs or to practise a religion. The wording of the regulations adopted by the government, utilises the term 'or similar philosophical belief' and it is to be hoped that domestic courts and tribunals will adopt a similarly broad approach.


The relationship that will evolve in practice between the convention and the regulations is one of the most interesting aspects of the new legislation and something worth keeping an eye on.


The Religious Discrimination Regulations highlight some of the problems faced in adopting anti-discrimination legislation and why governments have been hesitant in the past. The Framework Directive has removed any discretion the government had as to whether or not to adopt such legislation. In the recent case of Nachova v Bulgaria (26 Feb 2004), the ECHR again commented that non-discrimination on various grounds, including religion and race, reflect the basic values of democratic societies and referred to the Framework Directive as evidence of efforts to this effect.


The government's current piecemeal approach is the most unsatisfactory of all solutions. It is difficult credibly to sustain the argument that anti-discrimination legislation can be introduced in some parts of the country but not in others and that discriminatory behaviour is only impermissible in some fields.


The religious discrimination regulations can be seen as a welcome step forward, for helping to provide a more comprehensive prohibition on discriminatory behaviour.


Mohini Bharania is an assistant solicitor in the employment department at London-based law firm Russell Jones & Walker