As a union representative I have had a few cases which engaged free speech type issues, and fewer still that could be described as religion and philosophical belief cases. Therefore, the article below is not written in any anticipation that will be of widespread use but it is, nonetheless, an interesting one on what is a protected religion in UK law.
To my knowledge no UK worker has advanced a discrimination case on the basis that they were discriminated because of their adherence to the beliefs of the Church of the Flying Spaghetti Monster or the Pastafarian belief system as it is known (by them, at least). A search of the ET decisions database for “Pastafarian” yields no results so we must, I presume, wait for the day the question of whether Pastafarianism is a protected belief, although intriquingly a search for “spaghetti” yields three results.
If Pastafarianism is a religion, it is a very recent one. It is only in 2006 that one American student, Bobby Henderson, published the Gospel of the Flying Spaghetti Monster.
Since then numerous persons have tried to ensure governments have recognised the Pastafarian faith, and I understand one nation that has done so is the Netherlands. However, as the Law and Religion blog has recently highlighted recent decision of the ECtHR in Alm v Austria [2022] ECHR Application no. 20921/21 and Sager and Others v Austria [2022] ECHR Application no. 61827/19. Defining religion, especially in a multicultural context is always going to be difficult but the conclusion of both these cases was that for Article 9 ECHR purposes Pastafarianism is not a religion protected by Article 9. In the Alm case the applicant had sought to have a passport photo taken with a colander (stated to be religious head-wear) on his head. The ECtHR found that “Pastafarianism was intended to be a satirical movement rather than a religion and that the applicant had not demonstrated that he wore the head covering for religious reasons, the Passport Service Office and the Vienna Administrative Court duly applied the above‑mentioned standards requiring a certain level of cogency, seriousness, cohesion and importance.”
I am not particularly troubled by the decision on religion grounds although not sure why satire should be seen as antithetical to religion or indeed why a joke cannot also not be a requisitely serious endeavour. I am intrigued however how an employment tribunal would consider such a claim. The older Equality regulations, specifically Employment Equality (Religion or Belief) regulations adopted protection for “religious or similar philosophical belief”. The “similar” was dropped when consolidated in the the Equality Act 2010 as it was considered superfluous .so that section 10(1) and (2) state ” 1)Religion means any religion and a reference to religion includes a reference to a lack of religion, and (2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.”
If not a religion, is Pastafarianism is belief? The test is set out in Grainger PLC v Nicholson (2010), which set out a five-fold test – very similar (since Grainger drew on ECHR caselaw) to the tests under Article 9. The key tests would seem to be “is the belief genuinely held” and does it “contain a certain level of cogency, seriousness, cohesion, and importance”. My suspicion is a tribunal would answer negatively but as I hinted before, Pastafarianism is a satirical movement with I think a serious purpose (it was birthed in the USA Intelligent Design culture wars to challenge the evangelical use of intelligent design in US science classrooms). I can see a situation where an earnest individual joins in common cause under this banner and is singled out by a (for example) evangelical Christian manager at work because of their identification with the Church of the Flying Spaghetti Monster. Is it right that that person should be deprived of a remedy because their non-theism is wrapped up in a cloak of spaghetti?
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