Religious Discrimination

Few areas of life are more likely to lead to differing views and firmly held opinions than that of religion or belief. It has been the cornerstone of civilisation for so long that, even in today’s increasingly materialistic world, it still manages to underpin an enormous range of everyday activities – from the way we cook and eat to the manner of our dress; from the words we use to our attitudes to others. The Employment Equality (Religion or Belief) Regulations 2003 was the first attempt to try and protect those views in the workplace.

Introduction

The Employment Equality (Religion or Belief) Regulations 2003 makes it unlawful to discriminate directly or indirectly against another on the grounds of religion or belief, or to victimise or harass them.

The regulations are not particularly clear as to what constitutes a religion or belief, simply describing it as any religion, religious belief or philosophical belief. There is no specific list of what constitutes a religion, but it is intended to include all of the major religions as well as some of the less well known ones.

Thus it is likely that the definition will include anything akin to that of a religion or philosophy, for example, humanism or a particular philosophical way of life, but is unlikely to include a belief which is not , such as political views or support for a football team. What is not clear from this definition is whether it applies to a belief held only by the individual (in other words a belief which does not form part of an established belief). The regulations were clarified in 2006 to make it clear that the regulations are intended to apply to the absence of a belief, as in atheism or agnosticism, but it remains unclear where the dividing line lies in respect of philosophies that are not religious – for example communism not linked to a political party.

Perhaps the most important thing to bear in mind when applying this regulation is that it is not confined to the major religions of the world, e.g. Christianity, Islam, Hindu, Judaism etc. It extends to cover all religious beliefs including Paganism, Wicca and Druidry. Employers are recommended, therefore, to look more at the genuineness and strength of the person’s belief than the nature of the belief itself.

A further factor to bear in mind is that some religious beliefs are also covered under race discrimination legislation. Under the Race Relations Act 1976 Jews and Sikhs – who are regarded for the purposes of that act as a racial groups – are protected from discrimination.

Types of religion or belief discrimination

Discrimination on the grounds of religion or belief is unlawful in all parts of employment including in relation recruitment, terms and conditions, pay and benefits, how employees behave towards one another, training, promotion, redundancy and dismissal. There are a number of exceptions to this, and we will come to these later.

There are in effect four different types of discrimination:

• direct discrimination – where someone is specifically treated differently because of their religion or belief. Examples of this would include not employing a Muslim in case it offended clients of another religion or insisting that all employees be practising Christians because the firm holds itself out as being a Christian practice.
• indirect discrimination – this occurs where a provision, criterion or practice which is applied to everyone has the effect of discriminating against those from one particular religion more than another and doing so cannot be justified. Examples of this include a requirement that all employees work late on a Friday evening. This could discriminate against, for example, Jewish employees who need to be home before sunset in order to prepare for the Sabbath. If the employer could show that the practice was justified – for example because it was a place of entertainment that only opened on a Friday and a Saturday – then the provision would be acceptable; otherwise it could be discriminatory.
• harassment – this consists of behaving in an offensive manner, or encouraging or allowing other people to do so or engaging in conduct which is unreasonable, unwelcome and offensive and which creates an intimidating, hostile or humiliating environment (for example, making insulting remarks about a person’s god, using blasphemous words in their presence or deliberately doing things to incense them such as eating pork in front of a Jewish or Muslim person).It should be noted that the important criteria is whether the person being harassed finds the conduct offensive - not whether the conduct was meant to be offensive or whether another person would have found it to be offensive. However, the conduct must objectively be capable of being perceived as harassment.
• victimisation – this occurs where an employee is treated less favourably because he or she has alleged that they have been discriminated against or assisted another person in pursuing such an allegation. It does not have the same meaning as is usually attributed to victimisation in normal parlance.

Exceptions and justifications

There are a number of circumstances where an employer is entitled to discriminate on the religious grounds, although these are extremely limited. These include:

• Where there is a genuine occupational requirement (GOR)
• Employment by a religious organisations and there is a genuine occupational requirement
• Positive action
• Protection of Sikhs on construction sites

Genuine occupational requirement

So far as GORs are concerned, regulation 7(2) and (3) of the 2003 regulations provide discrimination may occur where it is a justifiable requirement that a person be of a particular religion. There will not be many instances where this will apply – the main one being where it is a fundamental requirement of the job that a person be of a particular religion – for example priest, bishop, rabbi etc. In considering whether it is a fundamental requirement it is necessary to look at the precise nature of the work and to ask the question as to whether that job could be carried out as effectively by someone not of that religion. Thus, being a priest in a religion would require someone of that religion – being an administrator in an office operated by the religion might not.

Employers can rely on the GOR as a defence to claims of direct and indirect discrimination, only if they can show that:

• being of a particular religion or belief is a genuine and decisive requirement for the job,
• it is proportionate to apply that requirement in this particular case,
• the person either does not meet the requirement to be of a particular religion or belief, or the employer is not satisfied that they do and it is reasonable in all the circumstances for them to reach that conclusion.

Note that it is not the business itself that needs to be based on a particular religion or belief but the job. Thus being a hospital chaplain administering to patients of a particular faith would be included even though the hospital itself is not based on a particular religion or faith.

Where the exemption becomes more difficult to interpret is in connection with those organisations which have a particular religious ethos but are not themselves religious bodies. A faith school for example may have an ethos which is based on a religion or belief but not all roles within the school would require someone of that religion or belief to carry them out. In circumstances such as these, employers would need to show that particular roles require that someone have a particular faith to carry out the role but would not be able to apply a blanket requirement that all employees do so. Thus a teacher teaching religious studies at a faith school may be able to be shown to need to be of the school’s faith whereas a laboratory technician would not be.

Positive Action

Not to be confused with positive discrimination, an employer might be able to make training available to those of a particular religion in order to address a perceived imbalance in the workforce provided that when issues of recruitment and promotion arose the best candidate was appointed irrespective of religion. Employers are allowed to take positive action in favour of members of a particular religion or belief, where it seems a reasonable thing to do to compensate for past disadvantages that they may have faced.

Sikhs on construction sites

The Construction (Head Protection) Regulations 1989 require employers to ensure that all employees involved in construction work are provided with suitable head protection unless there is no foreseeable risk of injury to the head other than by falling. Sikhs who wear turbans are exempt from this requirement by virtue of the Employment Act 1989 although Sikhs not wearing a turban are not. Thus any employer who requires a Sikh to wear a safety helmet while on a construction site, would be discriminating against the Sikh. However, it should be noted that the provision applies only to construction sites and not in any other circumstances and applies only to Sikhs. If other religious groups attempted to request a similar exemption then an employer may be able to resist the request and not be discriminating on the basis that it is reasonably justified on health and safety grounds.

Specific issues

Can employers impose a dress code?

The imposition of a dress code at work could give rise to a claim of indirect discrimination if the effect which it has is to force someone to wear, or refrain from wearing, something which offends their religious beliefs. In order for a dress code to be acceptable, it would need to be shown by the employer that there was a reasonable justification for it.

There have been a number of high-profile cases over the past few years in which employers have been challenged over the imposition of dress codes, including the cases of the British Airways worker suspended for wearing a Christian cross and a teacher who was suspended after she refused to obey an instruction not to wear a full-face veil in the classroom.

In general employers need to be careful to ensure that they do not leave themselves vulnerable to claims of religious discrimination, where tribunals can apply unlimited damages and need to be absolutely sure that the dress code they are imposing is necessary. They need to be sure that they assess their policies from the perspectives of all religions. Thus, for example, a ban on head wear may prejudice Sikhs whilst a ban on pony-tails may discriminate against Hindu employees. To succeed in any claim, the employer will need to show that there is a legitimate business need and that there is no alternative means available for achieving that business need.

In the case involving the face veil the employer argued that face-to-face contact with children was a critical factor in the job and that young children find it hard to communicate with someone in a veil. Here the tribunal decided that a ban on wearing the veil was justified – it does not mean that every such ban would always be found to be equally justified.

Before introducing a dress code policy, therefore, employers should take every step to consider whether any element might be either unnecessary or likely to conflict with religious requirements and in particular should consider whether it can be objectively justified. Employers might also consider conducting a workplace assessment – seeking the views of managers and staff – and assure all staff that they can discuss it confidentially with HR or their line manager.

Must an employer allow employees to observe religious holidays?

Employers should always try to accommodate a request from an employee who wishes to take time off for a religious holiday or festival, provided that it does not interfere with the smooth running of the business. Failing to do so could amount to indirect discrimination. Employers are advised, therefore, to have clear procedures whereby such requests can be made and criteria which are applied when making the decisions.

Employees should be equally reasonable in making the requests and in particular should ensure that an employer is given adequate notice. Employees should not assume that an employer will know when their particular religious festivals take place or that time off will be required.

Prayer facilities

Whilst there is no specific requirement that an employer provides prayer facilities, or allows an employee additional time during the working day in which to pray, nevertheless it is often good employee-relations practice to allow workers to pray where it is reasonable for them to do so. Often all that will be needed will be a quiet area away from other workers. So far as time off in which to pray is concerned, provided that employees use teas breaks and time which other employees get for breaks then the fact that the employee wishes to pray should not be a problem.

Similarly, employers should avoid where possible arranging meetings which take place on a Friday afternoon and which impact upon Jewish and Muslim employees who need to get home for their Sabbath.

Special dietary requirements

Employers who provide a canteen should take reasonable steps to ensure that it has options for those whose religion requires specific dietary requirements. Similarly, if food is to be provided in meetings, food options which are likely to be acceptable to the staff present should also be considered. Clearly there will be limits to the extent to which the employer need go. However, thought needs to be given to such needs when planning any work-related activity which involves food and drink.

For example, having a business meeting at a local pub might be offensive to those whose religion excludes alcohol.

What to do next

If an employee believes that they have been discriminated against because of their religion or belief then they may be able to make a claim in the Employment Tribunal. However, the employee should talk to their employer first to try to sort out the matter informally.

The level of proof is known as the “balance of probabilities” level of proof – that is to say a Tribunal would not need to be absolutely certain that discrimination had occurred, simply that it is more likely than not that the way a person was treated was on the grounds of their religion or belief. Having established that there are facts from which a Tribunal could decide that there had been discrimination, the burden then moves over to the employer who must then show that notwithstanding the evidence, no discrimination occurred.

Other than in exceptional circumstances, before an employee can take a matter to the Tribunal they must first raise the discrimination in writing with their employer and follow the employers grievance. Employees are allowed to serve a questionnaire on the employer. The Employment Equality (Religion or Belief) Regulations 2003 provides a set form of questionnaire which an employee can use to ask questions of someone whom they believe has discriminated against them. This is a similar to provision to that in relation to the sex, race and disability anti-discrimination rules. A copy of the questionnaire form can be obtained from the web site of the Department for Business, Enterprise and Regulatory Reform.

Normally the questionnaire must be served within 3 months of the alleged discrimination and the employer must reply within 8 weeks. Whilst there is no statutory obligation on an employer to answer the questionnaire an employment tribunal will be entitled to draw whatever inferences it considers appropriate from a failure to answer within the time allowed or from evasive or equivocal replies. The questionnaire will not, however, replace the need to raise a formal grievance.

A complaint is made on form ET1 which you must send to the Regional Office of Employment Tribunals. You can obtain a form ET1 from a number of places including Jobcentres, the local employment tribunal or online at the Employment Tribunal web site. The complaint must be made within three months, less one day, from the date upon which the discrimination first happened or, if you have gone through the grievance procedure, six months less one day. Note, however, that an employer must be given at least one month to sort out your grievance before you can proceed to the Employment Tribunal so it is vital that you complain to your employer and start the grievance process as soon as possible.

For more information on taking matters to the Employment Tribunal see elsewhere on this web site or contact employmentlawhelp on 0844 8044 800 and we will be pleased to help you.