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Are you lacking faith in religious discrimination laws?

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At first sight, the law forbidding religious discrimination by employers is straightforward, but in reality it has some subtleties.

What does the law say?

The Equality Act 2010 says treating employees less favourably because of religion or belief is quite simply unlawful. The law prohibits discrimination on the basis of any religion, religious or philosophical belief and also because of a lack of religion or belief too. 

Provided a belief is genuinely held, conforms to certain limits and satisfies specific conditions, including achieving certain levels of seriousness and importance, it can qualify as protected by the act. 

This may sound straightforward and comprehensive, but when the Equality and Human Rights Commission (EHRC) carried out the largest ever public consultation on the law surrounding religious discrimination at work earlier this year, it found “widespread confusion and misunderstanding.”   

In reality, the restrictions are not quite as rigid as you may think. Numerous urban myths have developed in the workplace, leading to misinterpretation of the law by both employers and employees.

First, there is no blanket requirement for employees to be allowed days off for worship. The Court of Appeal has stated that an employee’s belief that Sunday should be a day of rest and religious observance, involving no paid employment, while deeply held, was “not a core component of the Christian faith.” 

Nor does the law force employers to provide time off for prayer or religious practices, or amend someone’s working hours so they can pray at particular times. Even though a refusal without good reason could constitute indirect religious discrimination, employers who can show turning down the request was proportionate to achieve a legitimate objective will have the defence of justification available to them.

Recent advice, put forward by the Professor of Faith and Public Policy at Goldsmiths University of London, stipulates that employees should be careful of the kinds of foods prepared in communal kitchens in case it upsets colleagues of certain faiths.

He suggested not microwaving sausage rolls in a shared kitchen space. He also advised that employees should not keep bacon, or bacon rolls, in the fridge if it is shared with people whose beliefs prohibit them from eating pork. The guidelines go on to suggest that employers should serve certified halal and kosher food at corporate events, and consider whether or not alcohol should be served.

There is no legal basis for that advice. A person’s religious beliefs may prohibit them from eating pork or drinking alcohol but it does not prohibit nor should employers interpret it as prohibiting everyone else. If it did, it means everyone else has to adopt other people’s religions to not offend them. 

Neither can employees decline to undertake a task on religious grounds, if their refusal conflicts with another protected characteristic. Employers are advised to be flexible and reasonable when considering any such request – and there are already examples on either side of the fence.  

The European Court of Human Rights (ECHR), for example, ruled that a local council did not violate the rights of a registrar of births, marriages and deaths by taking disciplinary action against her, following her objection to officiating in civil partnership ceremonies on religious grounds. 
In America, a Muslim flight attendant claimed she was suspended from her job for refusing to serve alcohol, which is against her religious beliefs. The complainant filed a discrimination complaint against the airline after they placed her on administrative leave for 12 months, saying they are required to make ‘reasonable accommodation’ of her beliefs. If she was employed by a British airline, I suspect she would have been dismissed rather than being put on 12 months leave because she is unwilling to do a key part of her job.

Back at home, as a well-reported case involving the ECHR confirmed, employees do have the right to display their religious beliefs by wearing appropriate symbols, such as crosses. After seven years of legal appeals, airline check-in operator Nadia Eweida won the right to wear a cross at work.

However, less well chronicled is the fact that this right can be overridden in some instances. The ECHR has also found that hospital bosses were entitled to ask an employee to remove a cross worn around her neck to maintain health and safety on a ward – an example of a legitimate goal taking precedence over the right to wear a religious symbol.

It is also incorrect to believe relevant religious issues can no longer be raised during recruitment processes. In one case, where an employer was taken to court, accused of religious discrimination over an appointment, it was able to show its decision was legitimately based on experience and qualifications, despite religion featuring in an interview.   
The Equality Act 2010 was implemented to help employers embrace diversity, including people of faith. Organisations should try to respect and accommodate the beliefs of their employees but at the same time should understand that there are circumstances where religion comes second to other workplace objectives.

The best advice for employers is if in doubt, seek legal advice.

Simon Robinson

By Simon Robinson

Simon is an employment partner at Gordons LLP

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