Religious Discrimination at Work: Protecting Religion & Beliefs

The Equality Act 2010 (the Act) provides protection from workplace discrimination on grounds of “religion or belief”. The protection is broad, encompassing both job applicants and those in employment, which includes employees, workers and anyone contracted to perform work personally.

What protection is there?

The Act protects against direct and indirect discrimination, harassment and victimisation. 

The definition of ‘religion’

The definition of religion is “any religion” and includes a lack of religion, so applies broadly. The key is that there must be a clear structure and belief system. The Equality and Human Rights Commission (EHRC) Code of Practice lists the Baha’I faith, Buddhism, Christianity, Hinduism, Islam, Jainism, Judaism, Rastafarianism, Sikhism and Zoroastrianism as within the definition, but this is not an exhaustive list and denominations/sects within a religion may be considered distinct religions for the purposes of the Act.

What amounts to “belief”?

The definition of belief is “any religious or philosophical belief”.  When the provisions were first introduced, the question of what amounts to a “philosophical belief” caused significant debate. Over time, case law has provided the following guidance:

• The belief must be genuinely held.
• It must be a belief, not an opinion or viewpoint.
• It must be a belief as to a weighty and substantial aspect of human life and behaviour.
• It must attain a certain level of cogency, seriousness, cohesion and importance.
• It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

Following this guidance, the following are examples of some beliefs that have found to be “philosophical beliefs”: a genuine belief in climate change, a belief in the sanctity of life (extending to fervent anti-fox hunting) and ethical veganism. 

A belief in English nationalism, however, was found not to meet these criteria. It failed under the fifth ground above as the tribunal found it was not worthy of respect in a democratic society in that it is incompatible with human dignity and conflicts with the fundamental rights of others. In the case “the claimant’s unequivocal belief that those who are Black or Jewish are not part of the English nation, for example, patently seriously discriminates against people within those groups”.

Perhaps more controversially, a tribunal has found that vegetarianism was not a philosophical belief because it was a “lifestyle choice” rather than a belief about a weighty and substantial aspect of human life and behaviour. When compared to the approach to ethical veganism (was has been found to be a philosophical belief), this demonstrates the sometimes fine line between the types of belief which are capable of being protected.

Religious harassment at work

Harassment related to religion or belief can cover conduct that is by reason of religion or belief (e.g. shunning a co-worker because he is Muslim) or conduct, regardless of the reason, that is otherwise related to religion or belief (e.g. telling jokes about Jewish people that are not directed at anyone in particular but that colleagues find offensive regardless of their religion or beliefs).

Harassment does not need to be targeted at an individual but can consist of a general culture that appears to tolerate the telling of religious jokes.  It may be intentional bullying or it can be unintentional or subtle.  It will usually relate to the victim’s religion or belief or their perceived religion or belief.  It may also be based on the religion or belief of a third party.  The EHRC Code gives the example of a Sikh worker who wears a turban to work.  His manager wrongly assumes he is Muslim and subjects him to Islamaphobic abuse.  The worker would have a claim because of his manager’s perception of his religion. 

Religious rights at work (UK)

Religion & Dress code

Employers should consider what policies might inadvertently cause issues for those of particular religions or beliefs. For example, is a dress code going to negatively impact a particular group? If no headwear is permitted, then this will indirectly discriminate against those who are required to wear headwear for religious observance. Whilst it may be possible to objectively justify the policy, careful consideration needs to be given to each request. 

The Government Equalities Office guidance makes clear that “employers should be flexible and not set dress codes which prohibit religious symbols that do not interfere with an employee’s work”.

In one case, the Employment Appeal Tribunal (EAT) found that an instruction to remove a veil, which covered all but the claimant’s eyes, whilst she was carrying out her duties as a bilingual support worker, was justifiable in order to provide the best quality education.

The key for employers faced with such requests is to consider each one individually, have open and honest communication with the employee, and only reject such a request where there are compelling reasons for doing so (such as for operational or health and safety reasons). 

Time off - Religious Holidays & Events

Employers need to approach requests for time off for religious observance sensitively.  If the individual has sufficient holiday to cover the request, then it would only be in rare circumstances that the request is not granted.  You can read further about advice to employers for handling such requests in our recent article: How employers can exercise flexibility around religious holiday requests (peoplemanagement.co.uk))

Food Culture & Religion

Ensure workplace and social events provide a range of food and drink options, as certain religions have strict dietary requirements (such as not eating particular meats or drinking alcohol). 

Religious observance

If an employee requests access to a quiet place to pray, although employers are not legally required to provide this, the EHRC Code states that an employer with sufficient resources may be discriminating because of religion or belief if it refuses such a request, particularly if a quiet place is available and allowing it to be used in this way does not cause problems for other employees or the business. 

Religious clash of rights

There is scope for conflict between the protected characteristics of religion or belief and sexual orientation and gender reassignment. This often arises as a result of traditional religious views on homosexuality or gender. This can create challenges for employers which we have looked at in our recent article Clash of Protected Rights in the Workplace (charlesrussellspeechlys.com).

Exceptions: when religion or belief discrimination may be lawful

Under the Act there are some exceptions that employers might be able to rely on if facing a discrimination claim, for example:

General occupational requirement

This is available where, having regard to the nature of the work, being of a particular religion or belief is an occupational requirement. This must arise out of the nature of the job in question, not just the nature of the organisation. In one case, the EAT found that the nature of the job of pastoral care teacher in a Catholic school did not require the teacher to be a Catholic, demonstrating that the exception will be narrowly interpreted.

Religious organisation occupational requirement

There is also an occupational requirement exception for the purposes of an organised religion. It concerns religious requirements relating to sex, sexual orientation, marriage or gender reassignment. 

Religious ethos occupational requirement

There is a further occupational requirement exception where an employer with an ethos based on religion or belief can show that being of a particular religion or belief is necessary and proportionate. This might apply if a religious organisation wants to restrict applicants for the post of head of its organisation to those who adhere to its faith.

Conclusion

Employers should:

• audit their policies carefully for provisions that might adversely impact those of a particular religion or belief;
• remember that a particular belief or opinion held by an employee may be capable of being protected from discrimination under the Act; and
• ensure any requests relating to observance of a particular religion or belief are dealt with sensitively.

Our expertise

We advise on all aspects of employment law including issues relating to religion or belief, as well as where there is a clash of rights in the workplace. We advise on how to prevent disputes from arising and how to handle them if they do.

We use our exceptional breadth and depth of experience to give clients personalised advice to help manage risk and resolve issues as well as bespoke training tailored to your needs, together with the use of our independent HR consultants to help put in place systems to monitor, review and minimise the risk of claims. Please contact Syma Spanjers or your usual Charles Russell Speechlys contact if you would like to get in touch.