Religious discrimination

The Equality Act 2010 (‘EA’) governs protection from religious discrimination.When it was enacted in 2010, the EA consolidated all previous legislation that related to religious discrimination, including the Employment Equality (Religion or Belief) Regulations 2003, which put the EC Equal Treatment Framework Directive provisions on religious discrimination into practice in the UK.

Claims brought after 1 October 2010 will be brought under the EA; if part of the claim arose prior to 1 October 2010, the claim should be brought under both the EA and the Employment Equality (Religion or Belief) Regulations 2003. Claims must usually be made within three months less one day, so a claim that relates to pre 1 October 2010 will need to be specially allowed by an Employment Tribunal (see below).

Who is protected by the EA?

The EA protection from religious discrimination applies in the course of any employment, vocational training or recruitment. This protection is extensive and stretches from the moment an individual applies for a job or training course, to the end of that course or employment. It may also apply after employment has finished, for example where a reference is being provided.

An employer may breach the EA themselves, or may be responsible for the actions of an agent, other employee, or even a third party, who has breached the EA protection.

There is no option for small employers to opt out of the religious discrimination provisions of the EA. Protection under the EA is wide ranging, covering everyone from apprentices to members of the House of Commons. There is protection for those holding an office, such as a company directorship, as well as anyone whose employer supplies them to work for another employer – such as a seconded employee. Those in roles within the police, legal community and employment agencies are also covered – among many others.

What does the EA protect against?

The EA is designed to protect against direct or indirect discrimination, harassment or victimisation on the basis of religion or belief (i.e. religion, religious belief or philosophical belief).

What is covered by ‘religion or belief’ is wide ranging and even extends to those who consider themselves to be atheists. All the major religions, such as Judaism, Islam, Christianity and Hinduism are covered by the EA. Whilst religion and religious belief are easier to define, the EA provides specific guidance on what constitutes a‘philosophical belief.’ This must be a genuinely held belief that:

1. Relates to a weighty and substantial aspect of human behaviour.

2. Is an actual belief, not a mere opinion on information currently available.

3. Is not incompatible with human dignity, does not conflict with the fundamental rights of others and is worthy of respect in a democratic society.

4. Reaches a certain level of clarity, seriousness, cohesion and importance.

5. Is similar to a religious belief (only in the sense of status or cogency, but not in ideas).

The EA protection has been tested in the courts and is known to cover a number of belief systems, including pacifism and vegetarianism. It is not necessary for a belief to be held by more than one person in order for it to be protected, but factors likely to be taken into account when looking at whether a belief would qualify include whether the belief is so deeply held that it influences someone’s way of life or view of the world, whether there is collective worship and the clarity of the belief system. Although membership of a political party will not be sufficient for protection, a belief in a political system, such as Communism could be, as well as beliefs that have their basis in science, such as Darwinism.

Direct discrimination exists where someone has been treated less favourably as a result of holding a certain belief or believing in a certain religion, and where this results in disadvantage or detriment to that person. The way someone has been treated must be comparable to the way another person who does not hold that belief but has similar characteristics, is treated. The ‘other person’ here is known as a ‘comparator’: a real or hypothetical person who is in a ‘not materially different’ situation to the person being discriminated against, other than adherence to the belief or religion.

– Direct discrimination can be unconscious so there is no need to establish a motive.

– Even where the person whose conduct is causing the discrimination shares the same belief or religion, this can still be religious discrimination.

– There is protection for those who are treated less favourably because of a perception about their religion or beliefs (whether or not the perception is accurate) or because of someone else’s beliefs (for example, a husband’s religion).

Indirect discrimination is where a ‘provision, criterion or practice’ is relevant to everyone, but disadvantages those of one religion or belief, compared to others who don’t hold that religion or belief – for example a workplace policy that requires staff to work during a period that is considered by one religion to be a holy day. An individual looking to claim for indirect discrimination must be able to show that the policy in question applies to them and that it has also disadvantaged a group of other people who share the same belief or religion. It is then up to an employer to demonstrate that the policy is objectively justifiable, for example, that it is a requirement of the job.

Harassment is reasonably unwanted conduct towards someone that violates their dignity, or is intended to violate their dignity, resulting in an environment that is hostile, offensive, intimidating, humiliating or degrading. The conduct must relate to the religion or belief of the person being harassed, or it could be the result of a perception that the person has a certain religion or belief, or an association with someone else of that religion or belief. Where there is harassment on more than two occasions by the same party (this could be another employee or a third party, such as a customer) and an employer knows of this but fails to take action to prevent it happening again, the employer may be held responsible for the harassment.

Victimisation relates to the treatment of someone who has been making use of the EA protection (or that formerly provided by the Employment Equality (Religion or Belief) Regulations 2003). Bringing proceedings, giving evidence or information relating to proceedings, making allegations of religious discrimination (for example making a complaint to an employer), or doing anything by reference to the legislation to the person whose conduct is potentially discriminatory (or any other person) are all considered ‘protected acts’ where they are done in good faith. Where a protected act has been carried out, unfavourable treatment as a result of this will be considered victimisation.

A claim for religious discrimination at work

Where a religious discrimination issue is raised, there is usually a requirement to follow the ACAS Code of Practice on Discipline and Grievance Procedures (www.acas.org.uk). The Code aims to resolve workplace disputes before court proceedings are initiated so where a situation requires the Code is followed first, this should be done. There are some serious penalties for both employers and employees who don’t follow the Code – for example any compensation an employee receives from an Employment Tribunal may be reduced by up to 25%.

The timing of a claim for religious discrimination is important as this is usually required to be made within three months less one day of the behaviour that is complained about, or where the conduct was ongoing, on the last day of that behaviour or conduct. The claim will be taken to an Employment Tribunal and this body has the power to extend any time limits where it is just and equitable to do so.

Where a religious discrimination complaint is made, an employee is entitled to use a questionnaire to obtain information from an employer about the situation. This is required to be served before, or within 28 days of, a claim being made to an Employment Tribunal. Employers should take care to answer questionnaires received with some diligence and avoid ambiguous replies, as an Employment Tribunal can infer unlawful discrimination from this. If an employer fails to follow any Codes of Practice that should be used in relation to any complaint made, this can also draw an inference of unlawful discrimination.

Deciding a claim for religious discrimination at work

A claim for religious discrimination at work under the EA must establish ‘clear facts’ that could be used by an Employment Tribunal to decide that the discrimination has taken place. Once it has been established that the conduct complained of occurred, the employer (or other respondent) must provide sufficient justification for the conduct that is not based on the employee’s religion or beliefs.

Where religious discrimination is found, an Employment Tribunal can take a number of steps. The Tribunal may recommend that the employer take a certain course of action, make a declaration of the parties’ rights, re-engage or reinstate an unfairly dismissed employee, and award compensation. Compensation is for damage directly caused by the discrimination and the amount that can be awarded is limitless. Loss of earnings (including interest) and loss of future earnings, hospitable employment, injury to health or feelings may all play a part in the compensatory amount.

Exceptions to religions discrimination

There are certain circumstances that fall within the literal interpretation of the EA that have been exempted from its protections – predominantly national security and positive action that is designed to appeal to those from under-represented religions or beliefs.

An organised religion employer may also introduce a prerequisite that would conflict with the EA if it is necessary to avoid conflict with the religion’s followers or is necessary to the doctrines of the religion and relates only to gender, marital status, sexual orientation or transsexuals.

There is also an exemption for objective justification if an organisation that is religious or has a certain belief ethos can demonstrate a requirement is proportionate and central to a position. This will only relate to certain positions – for example a religious teacher is likely to be required to be of a certain faith, but a cleaner who works for that religious organisation should not need to be.

Outside of the workplace

Refusal to provide a product or service – or providing something that is inferior or of lower quality – on the basis of a religion or belief (compared to that provided to someone of a different religion or belief) is also now unlawful.

A breach of the EA is a breach of statutory duty and a civil wrong, which can be pursued as a claim in a County Court. Financial compensation of between £600 – £6,000 for injured feelings and an injunction to put right the wrong resulting from discriminatory conduct can be awarded. A claim must be brought within six months of the conduct complained of or – where the conduct was ongoing – the last day of such conduct.