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