Religious Discrimination in the Workplace Explained

Author:
David Hession
Employment Law Associate Solicitor
Date:
04/02/2019

Employees in the UK have the right to not be unfairly discriminated against due to their religious or philosophical beliefs.

In legal terms, religion means any religion that has a clear structure and belief system. This covers all the most commonly practiced faiths and also includes “a reference to a lack of religion”. A philosophical belief can be more difficult to establish to enable the protections in law.

An employee would need to show that the belief is genuinely held, concerns a substantial aspect of human life and behaviour, and doesn’t conflict with the fundamental rights of others.

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Philosophical Beliefs

The following are examples of philosophical beliefs that could be capable of protection in law:

      • Pacifism
      • Veganism
      • Communism
      • Belief in climate change and that humans have a moral obligation to lead a life to lessen, reverse or halt the impact of climate change

To qualify for protection against religious or belief discrimination, the employee must demonstrate that they actually subscribe to the religion, and that it is genuine. The expression of the religious belief must also be integral to the religion or belief held by the employee. This is considered on a case by case basis.

A religion or belief cannot be judged by objective standards: a person is entitled to their religious belief whether another person understands or agrees with them or not.

The remedy for discrimination at work is compensation, which would put the employee back in the position they were in if the discrimination hadn’t taken place. This includes financial loss, of earnings for example, and non-financial loss, such as injury to feelings.

Types of Discrimination at Work

There are four main types of discrimination.

Direct Discrimination

This is where an employer treats a specific employee less favourably due to their religious or philosophical beliefs. An example of unlawful discrimination is when an employer doesn’t hire someone due to their religion. It could also apply where an employer makes a disparaging comment based on an employee’s religious beliefs.

Indirect Discrimination

Indirect discrimination occurs where an employer applies a particular policy, criterion or practice that applies to all of the workforce. This can, however, have an adverse effect on employees from a particular religious background.

For example, an employer does not allow employees to wear scarves of headgear in the workplace. This affects all staff, but has a particular and negative impact on Muslims wearing hijabs and Sikhs wearing turbans.

Further examples of indirect discrimination are:

      • Employees not being allowed, or having to cover, beards
      • Requiring people to work on religious days, e.g. Muslims over Ramadan, people of the Jewish faith on a Saturday, Christians on a Sunday

Harassment

A person is harassing someone if they violate another’s dignity, or create an intimidating, hostile, degrading, humiliating or offensive environment for the employee. For example, mocking or shunning someone because of their religious beliefs.

If the purpose of the conduct was to cause harassment, this is enough to be unlawfully discriminating. If it wasn’t the intention of the person in question to cause harassment, the effects of the conduct should be looked at. An Employment Tribunal must consider whether it was reasonable for the person to feel harassed.

Victimisation

This occurs when an employee is treated less favourably than others due to the fact they have made a complaint about discrimination. For example, an employer doesn’t hire or promote someone because they have raised a grievance based on discrimination.

When Can Discrimination be Lawful?

In cases of indirect discrimination, employers can justify or defend their actions by demonstrating that this is a proportionate means to a legitimate aim. This means that the employer should have a strong business case for putting a particular practice in place. In addition, an employer’s action should not go any further than is necessary in order to achieve a particular aim.

For example, an employer may put a particular practice in place which requires all of its employees to work on Sunday. The legitimate aim here could be to ensure an organisation is fully staffed in order to service the needs of the business.

This could apply in the hospitality industry with a pub or a restaurant. In terms of proportionality, are there any alternative measures the employer could have taken? For instance, could employees have been asked to work one in every two Sundays, thereby reducing the overall impact on Christian employees?

What Should Employers Keep in Mind?

Each case turns on the facts, so it’s vital the employer considers the potential ramifications of their policies and decisions to avoid unlawful discrimination at work. In making decisions and creating or amending policies, employers should bear in mind the potential impact on the religious and philosophical beliefs of their employees.

Employers can protect themselves by having a sensible policy in place dealing with equal opportunities and religious discrimination. This can act as a useful blueprint for managers and can be useful when managing any workplace issue.

Employers may want to adopt a ‘first come first served’ policy for employees who request time off during Christmas, Ramadan or during other religious festivals. Employers are also well advised to regularly consult with employees.

It may be that an employee requests time off to pray during the day. By consulting with employees, it’s often possible to reach a sensible compromise. This can help to avoid disputes and even costly litigation. Employers should also be open to consider changing its practices, subject to the needs of the business.

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