Legal Q&A: Religious discrimination

The Employment Appeal Tribunal (EAT) recently delivered its first judgment on the Employment Equality (Religion or Belief) Regulations 2003, which prohibit direct and indirect discrimination, victimisation and harassment in employment on the grounds of religion or belief.

The case concerned a Muslim customer service assistant who brought a claim against West Coast Trains (WCT) Ltd in connection with a uniform policy that required employees to keep beards neatly trimmed.

The EAT upheld the tribunal’s decision that Mr Mohmed had not been dismissed for refusing to remove or trim his beard, but for a “general lack of enthusiasm”.

Although Mohmed’s beard had been discussed in the context of WCT’s uniform policy, the parties had subsequently agreed that Mohmed could keep his beard at a fist’s length, as required by his religious beliefs, and there was no evidence that the issue arose between them after December 2003, when the laws came into force.

WCT had also adopted a similar approach in the case of a Sikh employee, whose religion prevented him cutting his beard, but who kept it tidy and within the company’s uniform standards. 

Other questions on religious discrimination which commonly arise are:

We have a Christmas shutdown period and staff are required to keep sufficient holiday to cover this. One employee says he should be allowed to use those days for a different religious holiday. What should we do?

Your policy will be indirectly discriminatory on the grounds of religion under the regulations, and possibly race under the Race Relations Act 1976, unless it can be justified. If you can demonstrate a genuine business reason for the Christmas shutdown (for example, reduced customer demand) and you allow the employee to take some or all of his annual holiday entitlement for different religious festivals, the policy will be lawful.

We are a small company. An employee has asked us to convert a staffroom, where employees currently have their lunch, into a prayer room. Are we required to do this?

Employers are not required to provide a prayer room, but should consider if a room could be used for this purpose. If the staffroom is only in use at lunchtime, for example, consider whether it could be used for prayer at other times.

We run a large restaurant. One of our waiters is refusing to serve alcohol on religious grounds. What should we do?

The requirement to serve alcohol may indirectly disadvantage particular religious groups. You should consider whether it is possible to rearrange the work so that another waiter can carry out this function.

If it is not practicable to guarantee that the employee will never have to serve alcohol, because of the demands on staff at peak times, for example, it will be important to explain to the employee that you have looked into their request and why it is not possible to make that assurance.

We are considering promoting one of our sales team. Both candidates have produced excellent results, but one employee always leaves early on Fridays, on religious grounds. Are we able to take into account the difference in attendance when making our assessment?

If you were to select the other candidate on the grounds that he does not take time off on Fridays, when both candidates are otherwise the same, this is likely to be discriminatory. Flexible working arrangements should not be taken into account when making your assessment.

We have a policy that male employees with long hair, who cannot cut their hair for religious reasons, are required to wear a turban. An employee is refusing to wear a turban because he says it gives him a headache. What can we do?

The dress code that male employees must not have long hair might be indirectly discriminatory unless it can be justified, as some religions, such as Sikhism, require individuals not to cut their hair.

If the reason for the dress code is based on health and safety (as in the catering industry, for example) or proven customer requirements, such as preserving a brand image, then it may be possible to justify the policy if it is proportionate to the business need.

A group of religious staff have started trying to persuade other employees to attend their church. An atheist has said that it makes him uncomfortable. What should we do?

The group’s behaviour may amount to harassment, for which the company could be liable unless it takes steps as are reasonably practicable to prevent it.

You should refer the employee to the grievance procedure in case he wishes to make a formal complaint. Even if he doesn’t, it would be sensible to speak to the staff informally and explain that some people find their behaviour unwelcome.

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