In
this series, we delve into the XpertHR reference manual to find essential
information relating to one of our features. This month’s topic…
Future developments
A European Directive establishing a general framework for equal treatment in
employment and occupation was formally adopted by the Council of Ministers on
27 November 2000, almost exactly one year after the European Commission first
proposed it.
The directive, which must be implemented by member states by 2 December
2003, or 2 December 2006 in the case of its age and disability discrimination
provisions, outlaws discrimination on a wide range of grounds, considerably
extending the EU level framework for protection against discrimination.
All member states will have to introduce new laws in order to comply with
the aims of the directive.
The purpose of the directive is to establish a general framework within the
EU for protection against discrimination on the basis of religion or belief,
disability, age and sexual orientation. It covers:
– Conditions for access to employment, self-employment or an occupation
(including selection criteria and recruitment conditions in all branches of
activity and including promotion)
– Access to all types and to all levels of vocational guidance, training,
advanced vocational retraining and work experience
– Employment and working conditions, including dismissals and pay
– Membership of and involvement in a workers’ or employers’ employment
organisation or any professional organisation, and any benefits provided by
those bodies
Religion or belief
Discrimination on grounds of religion or belief includes discrimination on
grounds of not belonging to a particular religious group, as well as
discrimination on grounds of practising a particular religion. These provisions
must be implemented by 2 December 2003.
The major impact in the UK of this part of the directive will be in
providing increased protection against discrimination for the Muslim community.
In respect of direct discrimination, it will allow claims to be brought by
Muslim women, for example, who are subjected to harassment because of their
attire.
As regards indirect discrimination, practices that fail to accommodate the
need for time off to observe religious holidays will be subject to scrutiny.
There is a limited scope of derogation in that member states will be able to
make religion a genuine occupational qualification for particular posts, where
this is justified by the nature of the activities or the context in which they
are carried out. So it would allow a Catholic school to require its teachers to
be practising Catholics, but is unlikely to allow them to impose similar
restrictions on, for example, ancillary staff such as cooks or cleaners.
Religion and race discrimination
The UK does not currently have legislation preventing discrimination on the
grounds of religion or belief, except in Northern Ireland.
A person discriminated against on account of their religion has to try to
rely on the Race Relations Act 1976, which provides protection for individuals
who experience discrimination on grounds of colour, race, ethnicity or national
origin but not religion or beliefs. Jews, Sikhs and gypsies have all fallen
within the Act, but Rastafarians have been held to be a religious group and not
a ‘race’ under the Act. Muslims are a religious but not a racial group.
However, action taken by an employer that adversely affects Muslims as a class
(such as a refusal to allow time off work to celebrate a religious festival)
could constitute unlawful indirect race discrimination – J H Walker Ltd v
Hussain and others, 1996, IRLR 11 EAT.
In Seide v Gillette Industries Ltd, 1980, IRLR 427 EAT, the Employment
Appeal Tribunal said that ‘Jewish’ could mean membership of either a race or a
particular ethnic group, both of which fell within the Race Relations Act 1976,
as well as membership of a particular faith, which did not fall within the Act.
It is therefore important to establish which religious groups are also
recognised as racial groups.
Problems often occur in this area in relation to time off for example to
attend mosque or as part of the Jewish faith to leave work at sunset on
Fridays. It may also extend to longer periods to participate in religious
festivals. However, if a claim is brought, the employer may be able to justify
the requirement of attendance.
In Fluss v Grant Thornton Chartered Accountants, 1987, 30561/86 COIT, Fluss
complained he was not offered a job because he had to leave work before sunset
on Fridays and, on this basis, had been indirectly discriminated against. The
tribunal said, although the requirement to work 9.30 am to 5.30 pm had a
discriminatory impact on Jews, it was a justifiable requirement in all the
circumstances.
Human Rights Act
The Human Rights Act 1998 has the potential to provide more protection than
the amount given in relation to religious belief by the Race Relations Act
1976. It came into force on 2 October 2000 and incorporates the European
Convention on Human Rights into UK law. It affects the way in which UK courts
interpret domestic legislation. They are obliged to:
– Take into account any judgment, decision, declaration or advisory opinion
of the European Court of Human Rights
– So far as possible, interpret primary and subordinate legislation in a way
that is compatible with the convention rights
If a court decides that UK legislation is incompatible with the convention,
it can make a declaration to that effect. If a declaration of incompatibility
is made, parliament is likely to amend the offending legislation.
The HRA primarily applies to ‘public authorities’. Individuals can bring
free-standing claims in the courts for breaches of the HRA by a public
authority. The courts and employment tribunals are public authorities and are
required to decide if all cases before them are compatible with convention
rights as far as possible.
Therefore, all employees will potentially be able to raise human rights
issues to support claims under any part of UK employment law.
Freedom of religion
Article 9 of the European Convention relates to freedom of religion:
"Everyone has the right to freedom of thought, conscience and religion.
This right includes freedom to change his religion or belief and freedom,
either alone or in community with others and in public or private, to manifest
his religion or belief, in worship, teaching or practice and observance."
This gives employees of public authorities the entitlement to practise their
religion and, more importantly, not to be disciplined for doing so. It provides
staff of private bodies with some protection if they are dismissed, since a
dismissal for grounds that infringe a convention right will be unlikely to be
found fair.
Therefore, in a claim under Article 9, it is likely that Rastafarians, as
well as various denominations of Christianity and other world religions, will
be able to claim protection. However, case law on Article 9 highlights its
limitations.
In Ahmad v UK, 1982, 4 EHRR 126, a Muslim school teacher wanted to pray at
his mosque for 45 minutes every Friday. The local authority refused and relied
on his contract of employment, which required him to work on Fridays.
The European Court of Human Rights held that the local authority’s refusal
did not infringe Article 9, since the employee had voluntarily accepted a
teaching post which prevented his attendance at prayers and he had not
complained, or requested time off, during his first six years at work.
The court identified the issue as being whether, in relying on the contract
of employment, the local authority was arbitrarily disregarding the right to
freedom of religion.
In Stedman v UK, 1997, 23 EHRR 168, the applicant was dismissed for refusing
to work on Sundays in accordance with her religious beliefs. Her claim was
rejected, on (it seems) the ground that she was not dismissed because of her
religious beliefs, but because she had refused to work her contractual hours.
The court did not consider at any length the point that her refusal to work
contractual hours was because of her religious beliefs.
This is an extract from the Equal Opportunity chapter of the XpertHR
employment law reference manual (chapter author Hilary Slater)
Action point checklist
– Take into consideration requests
that have a religious connection
– Be aware that certain religious groups have been held to come
within the Race Relations Act 1976
– Take into consideration the Human Rights Act 1998 as this
could be used to support other employment claims
– Take into consideration the wording of the equal
opportunities policy and whether actions would be in breach of this policy
– Take into account forthcoming changes in discrimination law
and amend policies accordingly
Questions and answers
Does legislation currently exist
that protects an employee from religious discrimination?
Currently, the UK does not have legislation preventing
discrimination on the grounds of religion or belief, except in Northern
Ireland. A person discriminated against on account of their religion must rely
on the indirect discrimination provisions contained in the Race Relations Act
1976, which provides protection for individuals who experience discrimination
on grounds of colour, race, nationality, ethnic origins and national origins,
but not religion or beliefs. However, a European directive will extend
protection against discrimination from 2003.
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
Are there any other ways that
employers may be found to be acting unlawfully regarding employees’ religious
beliefs?
The Human Rights Act 1998, which came into force on 2 October
2000, has the potential to provide more protection than the limited amount
currently available in relation to religious belief by the Race Relations Act
1976. It incorporates the European Convention on Human Rights into UK law, and
affects the way in which UK courts interpret domestic legislation.
