Ashok Kanani reviews recent case law on religion and belief and answers seven key questions for employers around religious discrimination.
According to a survey last month by the Equality and Human Rights Commission, the laws protecting religion and belief are confusing and half of workers feel that these laws are inadequate.
In particular, there is concern around how employers can strike the right balance between the right to freedom of expression, religious views and the rights of others to be free from discrimination or harassment.
Religious discrimination: key XpertHR resources
What is a protected belief?
Religion and belief are protected characteristics under the Equality Act 2010. As protected characteristics, treating a person less favourably because of their religion or belief is unlawful.
What qualifies as a religion is more obvious than what qualifies as a protected belief. In Grainger v Nicholson, the Employment Appeal Tribunal (EAT) held that a belief that is genuinely held and that satisfies certain limitations and criteria, including a certain level of seriousness and importance, can qualify as a protected belief.
In this case, the EAT held that the employee’s asserted belief that “mankind is heading towards catastrophic climate change and we are under a moral duty to act to mitigate or avoid this” is capable of being a philosophical belief that could potentially qualify as a protected belief.
Can an employee insist on a day off for religious worship?
There is no absolute rule that employers must give employees days off for religious worship.
In Mba v Mayor and Burgesses of the London Borough of Merton, the Court of Appeal stated that a Christian care worker did not suffer religious discrimination when a dispute arose with her employer over her refusal to work on Sundays. The court took into account that the employer had made efforts to accommodate the employee’s needs for two years by arranging the shifts in a way that enabled her to attend church to worship each Sunday. The court also considered that the employee’s belief that Sunday should be a day of rest and worship on which no paid employment is undertaken, while deeply held, is “not a core component of the Christian faith”.
Can religion be discussed at recruitment interviews?
Although religious discrimination is unlawful, that does not mean that employers cannot discuss relevant religious issues during a recruitment process.
In Rawson v University of the West of England, the employer was able to show that, although the subject of religion had arisen during the interview, the reasons for its decision on selection were based on experience and qualifications and not religion.
Can employees insist on being given prayer breaks?
The Equality Act 2010 does not require employers to provide time off for prayer or religious observance, or to alter an employee’s working pattern to allow for prayer at specific times of the day. Nevertheless, a refusal without good reason to accommodate an employee’s request for time off, or for an alteration to his or her working patterns for religious purposes, could amount to indirect religious discrimination.
However, indirect discrimination is open to justification, provided that the employer can show that a refusal to grant the employee’s request for time off is a proportionate means of achieving a legitimate aim.
In Qureshi v Teknequip, a Muslim employee who was refused an extended lunch break one day a week to attend prayer at his Mosque was not indirectly discriminated against on the grounds of race. The employer succeeded in its justification defence for a number of reasons, including that it had allowed the employee an extra half-hour for lunch on Fridays, and the employee was permitted to say prayers during break time without restriction.
Can an employer insist that religious symbols do not interfere with uniforms?
Whether or not an employee has the right to manifest his or her religious belief was a subject for consideration by the European Court of Human Rights (ECHR) in the highly publicised case of Eweida and others v United Kingdom. Based on the outcome of Eweida, an employee does have a right to manifest his or her religious belief by wearing a religious symbol.
In Ms Eweida’s case, the ECHR held that on the facts, a fair balance had not been struck between “Ms Eweida’s desire to manifest her religious belief” by wearing a visible cross and “the employer’s wish to project a certain corporate image” because the domestic courts had afforded “too much weight” to the employer’s “undoubtedly legitimate” aim.
However, the right to manifest one’s religious beliefs is not an unconditional right. In the case of Chaplin, a hospital introduced a policy that forbade employees from wearing necklaces. The claimant in this case was asked to remove her cross and a dispute with the employer arose.
The ECHR held that the reason the employee was asked to refrain from wearing her cross was the protection of health and safety on a hospital ward, and the employer’s policy that denied the employee from a wearing a cross was found to be proportionate means to achieving the legitimate aim of protecting health and safety, which took precedence over the right to wear a religious symbol.
Can an employee refuse to carry out a task on religious grounds?
If the refusal conflicts with another protected characteristic, the answer is no.
In the case of Ladele, the employee, a registrar of births, deaths and marriages, objected to participating in civil partnership ceremonies on account of her religious beliefs. The employer commenced disciplinary action against the employee, and in consequence the employee brought employment tribunal proceedings.
When assessing the employer’s defence, the ECHR held that neither the council nor the domestic courts had exceeded “the wide margin of appreciation that is allowed to the national authorities when striking a balance between competing Convention rights”. The finding was that the employer had not violated the employee’s rights by commencing disciplinary action.
The ECHR came to a similar conclusion in the case of Mcfarlane. In this case, a Christian counsellor was dismissed for failing to provide unequivocal assurance, which was viewed as a refusal, that he would provide counselling and psychosexual therapy to same-sex couples in breach of the employer’s equal opportunities policy.
In arriving at its decision, the ECHR noted that the employer’s action was intended to secure the implementation of its policy of providing a service without discrimination; it decided that a fair balance had been struck and held that the refusal by the domestic courts to uphold the claimant’s complaints had not resulted in an infringement of his rights.
Does an employer have a duty to prevent harassment based on someone else’s religion or belief?
Yes, this was confirmed in the case of Saini v All Saints Haque Centre and others.
In this case, the employee resigned and made a number of complaints in the employment tribunal, including harassment on the ground of a colleague’s religion. The EAT confirmed that harassment because of someone else’s religion would be unlawful.