Most religious discrimination cases involve allegations of either bullying/harassment or indirect discrimination, where claimants argue that a workplace policy, procedure or practice puts them at a particular disadvantage because of their religious beliefs and that it cannot be justified.
But there are certain practical steps employers can take to improve their chances of successfully defending any such claims, starting from the position that the burden of proof in such claims effectively makes them guilty until proven innocent. What proof will assist?
It might sound trite, but employers need to ensure they have the right policies and procedures in place and, just as importantly, can demonstrate they have been followed. For instance, just having a disability policy in a drawer somewhere will be of no help, especially if it has not been updated since the Disability Discrimination Act in 1995.
If, for example, the employer can show it has trained its staff fairly recently on equality issues, taken discrimination grievances seriously, and acted against the guilty where appropriate and that it does the right things to ensure proper diversity in its job candidates, then it will be in a much stronger position to defend allegations of bullying/harassment.
Proof of these things being done properly (meeting notes, delegate lists, training course materials, written warnings, grievance responses) will work in favour of the employer in the eyes of a tribunal, whatever sort of discrimination the case is about.
When it comes to indirect discrimination, employers are most likely to face a challenge in relation to dress codes, break policies, recruitment and job applications, rostering and religious leave. Assuming it is accepted that a particular practice or procedure does have a discriminatory effect, then being able to defend allegations of indirect discrimination requires the employer to demonstrate it has a good business reason (a legitimate business need) for that practice or procedure and it is a ‘proportionate means’ of attaining that need.
When considering these issues a tribunal will weigh up the importance of the aim against any discriminatory effects and will consider whether the aim could have been achieved equally well by a measure that had a smaller discriminatory effect or did not discriminate at all.
Employers will, therefore, need to ensure they can justify any negative impact on a particular religious group and this should be supported by documentary evidence of their thought processes.
The tribunals recognise they are not the employer and so will often be reluctant to go behind the genuine and reasoned arguments of an employer given its greater knowledge of the relevant circumstances, but this does at least require evidence of those arguments to be compiled and retained.
Employers also need to be able to point to any steps taken to address concerns raised by the affected employee(s). For example, if an employee refuses to handle products containing alcohol because of their religious beliefs (see case study, below left) the employer will be in a much stronger position to defend any discrimination allegation if it can show it has explored all the options and discussed these, even wholly without success, with the individual concerned.
Going to such lengths is important because religions are not always observed completely and different people have different views, whether through faith or pragmatism, of what particular religions require in particular respects. In Ahmed v Tesco, Ahmed refused to handle products containing alcohol on the grounds that doing so was in conflict with his beliefs as a Muslim. But not all Muslims hold the same view, any more than most Christians feel it necessary to wear a visible crucifix. This breadth of approach makes it essential that managers do not make generic assumptions as to what members of certain religions will and will not do, or think that particularly devout employees are just being “difficult”.
To defend a religious discrimination claim robustly the employer should ensure it has kept a written record of what has been said and done – it is one thing telling a tribunal you have done X, Y and Z to accommodate an employee’s religious beliefs, but quite another to prove it. This goes for all dealings with any employee who raises allegations of discrimination in the workplace – managers should ensure they take decent notes of any meetings, complaints, etc, as these will potentially be very important at a tribunal hearing.
Documents have the attraction that they are usually clear and less likely to panic, trip up, blush horribly or resign than line management witnesses, and so the greater the extent to which the employer’s contemporaneous case can be shown to exist on paper, the better.
Employers should take comfort from the fact that while religious discrimination claims are burdensome and can attract a great deal of publicity, there have been relatively few of them since the Religion or Belief Regulations came into force five years ago.
David Whincup, partner and Laura Canham, lawyer (who acted on behalf of Tesco in this case), Hammonds.
In Ahmed v Tesco Stores Limited and others at the Birmingham Tribunal in September 2008, Mr Ahmed had been an operative at one of Tesco’s distribution warehouses. This involved his loading products for distribution to its stores.
Tesco carries 7,300 product lines, of which at least 400 contain alcohol. Ahmed told his managers that he did not want to load any products containing alcohol as it conflicted with his beliefs as a Muslim.
Tesco explained to Ahmed several times its view that the role of a warehouse operative inevitably involved contact with products containing alcohol and that while it could seek to minimise his contact with alcohol, it could not prevent it as the selection of goods was automated and not controlled locally. Tesco also encouraged him to apply for other roles that might have less immediate contact with alcohol.
In March 2008, Ahmed resigned and claimed religious discrimination. While Tesco conceded that its policy of requiring warehouse operatives to handle products containing alcohol put Ahmed at a disadvantage compared with other persons because of his religious beliefs, it was able to argue successfully that it was justified in doing so.
The tribunal accepted that Tesco’s aim of supplying its stores with products (including those containing alcohol) was a legitimate business need and accepted that its policy of requiring warehouse operatives to handle such products constituted a proportionate (indeed, the only) means of achieving that aim, as it would not have been possible to maintain that supply without requiring operatives to do so. The tribunal took into account the impact on Ahmed, but concluded that Tesco’s needs outweighed any detriment to him.