With
new religious discrimination legislation set for the EU in 2003, employers must
act now to stamp out intolerant behaviour. Ronald Mackay and Deirdre Cormican
discuss the difficulties ahead
Attacks
on an Afghan taxi driver, a teenage Muslim girl, a young Bangladeshi man –
press reports of these incidents on British and US soils show the considerable
current state of hostility towards those in the Islamic community. It follows
that these violent reactions are likely to be echoed to some degree in
confrontations in the workplace. With emotions running high, employers should
be alert to the fact that certain employees may be being subjected to
harassment.
Employers
in the US have to comply with legislation to provide a workplace that is free
from harassment based on ethnicity, national origin or religion. These laws are
likely to be tested significantly in the current climate.
In
most parts of Europe, the position on religious discrimination is less
advanced. But those of us in the EU now need to prepare for changes which mean
that by December 2003 employees will have legal protection from discrimination
on the grounds of religion.
Employers
will be liable for acts of discrimination by their employees. Harassment on
religious grounds may be more subtle than in other contexts, and therefore
difficult to control or prevent. Workplace banter in particular should be
carefully monitored – what may be inoffensive to one person may be extremely
offensive to another.
Act
now to stamp out intolerant behaviour and sentiment and it will be far easier to comply with the
legislation when it does take effect. Raising awareness and training managers
and employees in their new responsibilities is key. Although there will be new
and untested issues to address, with a degree of foresight, employers who
already have a proactive approach to avoiding discrimination should be able to
adapt existing policies and minimise liability.
The
Framework Directive
There
is a distinct lack of uniformity among EU member states in the treatment of
discrimination generally. With the exception of the 1976 Equal Treatment
Directive, member states have been free to make their own choices as to what is
and is not unlawful discrimination. This is about to change.
By
virtue of the new European Framework Directive, all member states are required
to introduce legislation prohibiting discrimination on the grounds of gender,
disability, age, sexual orientation and religion or belief. A separate
directive deals with race discrimination.
Existing
Remedies
Existing
protection is somewhat haphazard and in some instances non-existent in most EU
member states. It is no accident that a key exception is Northern Ireland,
where religious differences and terrorist activities have been addressed
through specific laws aimed at combating religious discrimination. Since 1976
it has been unlawful to discriminate in employment there on the grounds of
religious belief and/or political opinion.
The
Northern Ireland Government’s intention was to promote equality of opportunity
and fair participation in the workplace. It is an integral part of the
employer’s personnel management function to ensure compliance with these
objectives. Failure to do so may lead to a claim in the Fair Employment
Tribunal.
Elsewhere
in Europe, certain employers have included religious discrimination in their
equal opportunities policies by making harassment on the grounds of religion a
disciplinary offence. Otherwise, aggrieved employees have had to try to adapt
existing legislation like the Race Relations Act 1976 in the UK, where attempts
have been made to extend the category of "ethnic group" to cover
religious communities. Sikhs and Jews have been held to constitute ethnic
groups in the UK, but Muslims and other groups have not.
In
the current climate, therefore, a Muslim who is abused either physically or
verbally in the workplace has no remedy for direct discrimination and has to
try to claim indirect race discrimination with the additional hurdles that
involves. This is obviously unsatisfactory.
Human
Rights legislation has also been seen as a potential means of redress for
employees of public authorities in the UK. A claim may be made for a breach of
Article 9 which enshrines freedom of thought, conscience and religion. An
employee of a private entity would have to take a much less direct route and
try to tack on a religious discrimination issue as part of another claim for,
say, unfair dismissal by attempting to show that his religion had a bearing on
the decision to dismiss. The Framework Directive provides a much more direct
and tailored route for the aggrieved employee.
Changes
in 2003
Member
states have to introduce domestic legislation prohibiting religious discrimination
by 2 December 2003. Both direct and indirect discrimination are prohibited. The
directive is framed to give protection to those who are not members of a
defined group as well as those who suffer for holding a particular religious
belief or belonging to a religious group. Neither "religion" nor
"belief" is defined, so many test cases are anticipated.
In
Northern Ireland, there has been a particular struggle with the terms
"religious belief" and "political opinion" as indicators of
Catholic or Protestant ethnicity as compared with religious belief or political
opinion per se. Tribunal decisions have shown that the term "religious
belief" covers more than just Catholic and Protestant beliefs.
Cases
brought by a Hindu and a born-again Christian have been successful. It has been
held that it is discrimination to treat an individual less favourably on grounds of religious belief, even if that
belief belongs to a third party – a wife or child, for example. And an
individual may be discriminated against because of his or her perceived
religious belief or political opinion.
In
hindsight, it could be said that the legislators left the terms "religious
belief and political opinion" general to avoid a technical loophole for
would-be discriminators. It will be for the courts of the various member states
to deal with the limitations on the protection as the inevitable inventive
claims are brought. The Northern Ireland experience, however, is useful in
illustrating the likely approach elsewhere.
There
is an important safeguard built into the directive to avoid abuse. The
provisions are stated to be without prejudice to measures laid down by national
law necessary for public security, maintenance of public order, prevention of
criminal offences, protection of health and the protection of the rights and
freedom of others. An employee who takes drugs as part of religious worship
would not, therefore, be able to claim discrimination if dismissed for having
committed a criminal offence. There is also a "genuine occupational
requirement" defence. It states that there must be a legitimate objective
and the requirement must be proportionate.
How
to tackle religious discrimination in the workplace
–
Employers should now think about religious discrimination in the same way that
they are used to thinking about race, sex and disability discrimination in
decisions about recruitment, promotion, dismissal and so forth. In making
decisions, managers and HR professionals will need to take time to consider
whether a person’s religion or beliefs could be a factor, or perceived as a
factor, either directly or indirectly in their decisions. The importance of
transparency and being able to justify choices is paramount.
–
Existing equal opportunities policies will need to be amended and updated.
Training should be given to managers on implementing the policies and ensuring
all employees are made aware of them, including the consequences of policy
breaches.
–
Careful attention will have to be given to avoid harassment on the grounds of
religion or belief. Employers will be liable for acts of discrimination by
their employees. Bear in mind that harassment on religious grounds may be more
subtle than in other contexts and therefore harder to control or prevent.
Banter, for example, about differing religious beliefs should be monitored
closely.
–
Review employment practices and policies for anything which may disadvantage
particular religious groups and gather information on traditions and
observances. Dress codes may have to be reviewed for those who wish to wear
traditional clothing.
–
Employers should be careful not to define religion too narrowly. Focusing on
long-standing world religions would be misguided. Interpretation will be
provided by the courts in the future, but the experience in Northern Ireland
has been that the concept of religious belief has been treated widely and can
include supposed religious belief as well as a belief held by a third party.
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–
In Northern Ireland, workforce composition is monitored and the employer is
obliged to review that composition together with recruitment, training and
promotion practices at least once every three years. If remedial action is
necessary, goals and timetables are set for affirmative action to be taken. It
remains to be seen what if any obligations will be imposed on employers
elsewhere in the EU to monitor the religion or beliefs of employees, but larger
employers might be advised to do so as a matter of good practice.
–
It is important to follow policies and codes of practice, either internal ones
or those produced by Governments. A code of practice like that already in
operation in Northern Ireland would detail the relevant legislation, the role
of the Fair Employment Tribunal, as well as the role of employers and their duties.
This code of practice is consistently referred to at tribunal hearings and in
one case it was said that the code could not safely be ignored by any employer.
It is not simply enough to have the policies and codes in place. Their contents
have to be conveyed to all employees and they must be followed.
