Religion or belief discrimination

Contents

Introduction

The Equality Act 2010, which incorporates the provisions in the now repealed Employment Equality (Religion or Belief) Regulations 2003, provides protection for workers from discrimination and harassment at work on grounds of religion or belief.

It's against the law for an employer to discriminate against a worker because of their actual or perceived religion or philosophical beliefs or because of their association with someone with a particular religion or philosophical belief. It is also unlawful to discriminate against a worker because they are not religious or they have an absence of religious or philosophical beliefs.

What is the definition of 'religion' and 'belief'?

The Equality Act 2010 defines 'religion' or 'belief' as any religion, religious belief or philosophical belief. There is no definitive list of recognised religions. To be recognised as a religion, there must be a clear structure and belief system, although if it is not recognised as a religion it may still be recognised as a philosophical belief.

Types of discrimination

Direct discrimination

This is where a worker is treated less favourably because of their religion or belief, when compared with another worker (known as a 'comparator') of a different religion or belief, but who otherwise shares the same or similar (but not materially different) circumstances as the complaining worker.

The comparator's circumstances do not need to be identical (in terms of the type of job, job level, job experience and seniority, etc.), but must not be wholly dissimilar. If a suitable comparator cannot be found, then a 'hypothetical comparator' can be used instead, who would be deemed to have the same employment as the complaining worker (such as their title, role, level etc). An Employment Tribunal has the power to decide the particular circumstances of a hypothetical comparator (such as their personality).

Direct discrimination also extends to protecting a worker if you treat them less favourably based on:

  • Your perception of their religion or beliefs, regardless of whether or not the perception is correct. For example, you may refuse to promote an employee because you perceive him to belong to a particular religious group, but their colleague is promoted and their circumstances are similar to the employee, except that you do not have the same perception about their beliefs.
  • The religion or beliefs of another person (also known as discrimination by association). For example, if you treat an employee less favourably because they live with someone who belongs to a particular religious group or you dismiss them for refusing to comply with your instructions that would require the employee to discriminate against someone because of their religion or beliefs,
You could be liable for direct discrimination even if you did not intend to discriminate against your employee.

There is, however, an exception whereby direct discrimination is allowed in circumstances where it is required in order to comply with another law, or a genuine occupational requirement. For example, a Roman Catholic school may be able to restrict applications for a scripture teacher to baptized Catholics.

Usually, the only available defence to a direct discrimination claim is proving that there was no discrimination.

Indirect discrimination

This is where you apply a formal or informal working practice, provision or criteria equally to all the workers in the workplace which puts a group of workers who share the same particular religion or belief at a particular disadvantage when compared with other workers and a worker within that group suffers the particular disadvantage.

It does not matter whether or not this has been done intentionally.

For example, if you introduce a dress code which requires all workers to go bare headed, those who are Sikhs (and who have to wear turbans as part of their faith) would be discriminated against and would potentially have grounds for an indirect discrimination claim.

You can defend indirect discrimination claims by justifying the use of the unlawful practice, provisions or criteria, if you can show that its application is a proportionate means of achieving a legitimate aim.

Harassment

Harassment is unwanted conduct towards a worker by an employer or another worker, because of that worker's actual or perceived religion or beliefs, or association with someone of a particular religion or belief. This applies to any conduct that violates a worker's dignity, or creates an intimidating, hostile, humiliating, degrading or offensive environment, even if it was not intended as such.

For example, if you make a remark about a worker's religion, which your worker or anyone else reasonably feels is hostile, you could be liable for harassment.

Workers who are not the subject of the unwanted conduct will also be able to make harassment claims for behaviour that they find offensive, even if they do not have a protected characteristic.

If it is reasonable that the unwanted conduct has had an intimidating or humiliating effect on the worker, then you may have a harassment claim made against you (even where the harassment was unintentional). A worker will not be protected if they are over sensitive and unreasonably take offence to an innocent comment.

Employers are liable for any acts of harassment undertaken by their employees in the course of their employment – whether they knew about it or not – if they fail to take reasonable steps to prevent it. 'In the course of employment' means 'done whilst at work' or 'done while 'in a workplace-related environment'. Employers can't defend a claim of harassment by showing that they did not authorise it or on the grounds that the actions were reasonable or warranted.

You can, however, escape liability for harassment, if you took reasonably practicable steps to prevent it.

Victimisation

Victimisation happens when a worker is treated less favourably because:

  • They have asserted their right not to be discriminated against on the grounds of their religion or belief by making a complaint
  • They have given evidence or information in a complaint made by another worker regarding discrimination on grounds of religion or belief
  • They have taken any other action under legislation relating to religion or belief discrimination
  • They have alleged that you or another worker has contravened the legislation relating to religion or belief discrimination
  • You believe that they have done or may do any of these things
For example, a worker might have grounds for a victimisation claim if they are prevented from going on training courses; subjected to unfair disciplinary action; or excluded from company social events because they took any of the above mentioned action.

Employment practices and religion

Providing information

  • A worker does not have to give you information about their religion or beliefs. Any information that is provided should be treated as confidential.
Time off and facilities

  • You do not have to provide time off and facilities for religious observance (e.g. a prayer room), but it is recommended that you should try to do so where possible.
  • Organisations should consider carefully whether they are inadvertently discriminating indirectly. For example, if team meetings always take place on a Friday afternoon, this may discriminate against Jewish and Muslim staff, for whom Friday afternoon may have a particular religious significance. Employers will not escape liability in an Employment Tribunal by showing that discrimination was inadvertent or accidental.
Religious holidays

  • If your employees want time off for religious holidays, they should ask in advance (giving the prior notice required under the terms of their employment contract). You should consider their request sympathetically – but you can refuse if it will affect the business.
Clothing

  • If your employees wear clothing or jewellery for religious reasons, you should make sure any work dress code doesn't discriminate against them.
Food

  • Some religions don't allow its followers to eat certain foods. If a worker does not want to handle such food (for example, if they work in a supermarket and don't want to handle pork), then they should speak to you about it. It is recommended that you take reasonable steps to manage their request, provided it doesn't affect the business.
Religion and sexual orientation in the workplace

  • Individual employees may have particular views on sexual orientation because of their beliefs. However, people shouldn't treat, for example, homosexual colleagues differently. In the workplace, everyone has the right to be treated with respect, no matter what their sexual orientation.

Positive action

Positive action in training and applying for particular positions

If you reasonably think that a group of your workers who share a protected characteristic (race, age, sex, sexual orientation, marital or civil partnership status, gender reassignment, pregnancy and maternity, disability or religion or belief)...

  • suffer a disadvantage connected to their protected characteristic,
  • have needs that are different from the needs of those who do not have their protected characteristic, or
  • have a disproportionately low participation in an activity, such as partaking in training activities, doing particular work or filling particular posts in your workforce,
...then you can take any proportionate action that enables or encourages the group of workers to overcome or minimise their disadvantage; meets their needs; or enables or encourages them to participate in the activity.

You are allowed to provide special training to members of the group. You can also encourage members of the group to apply to do particular work or fill posts (for example, by saying that applications from them will be particularly welcome).

This does not mean that you can discriminate in favour of the members of the group when it comes to choosing people to do the work or fill the posts, unless you meet the circumstances described below under 'Positive action in recruitment and for promotions', as that could be unlawful discrimination.

Positive action is not the same as 'positive discrimination', which is where members of a particular group who have a protected characteristic are treated more favourably regardless of their circumstances.

Positive action in recruitment and for promotions

The Equality Act 2010 makes it lawful for employers to take positive action when recruiting and making internal promotions in order to overcome a disadvantage connected with a protected characteristic or where the inclusion of people with the protected characteristic in a particular activity is disproportionately low. You will be able to take positive action where all of the following apply:

  • There are two equally qualified candidates to choose between
  • You do not have a policy of treating persons with the protected characteristic more favourably
  • Positively discriminating is a proportionate means of achieving a legitimate aim.
The Act does not require employers to take positive action and it is therefore voluntary.

Further guidance on positive action can be obtained from the Equality and Human Rights Commission.

Positive discrimination

Positive discrimination is unlawful except if used when recruiting or promoting individuals in the limited circumstances described above.

Tribunal claims

If you dismiss an employee, or if an employee resigns because they claim that they have been discriminated against by you, then they may make a complaint of unfair dismissal to an Employment Tribunal. In addition, they may also claim for damages on the grounds of discrimination which they will be able to do regardless of their length of service.

While there is a limit on the amount of compensation a tribunal can award for unfair dismissal, there is no limit in cases of unlawful discrimination.

Further information

The Advisory, Conciliation and Arbitration Service (Acas) has produced guidance on how the regulations are meant to work in practice. This guidance includes good practice advice, including possible scenarios and frequently asked questions. More information on the guidance can be found on the Acas website.

The Equality and Human Rights Commission (EHRC) have a number of employer guides regarding your obligations under the Equality Act 2010.