Member Article

Employees have a statutory right not to suffer discrimination in the workplace; religion and belief is one of nine characteristics that are protected by discrimination legislation. We focus on this characteristic and the key issues employers face.

What the law says

Direct and indirect discrimination, harassment and victimisation are collectively referred to as prohibited conduct under the Equality Act 2010 (the Act). To have a valid claim, a person must be subjected to such prohibited conduct on the grounds of a protected characteristic, and such conduct must happen in a work context. Religion and belief is one of the recognised protected characteristics under discrimination law. But how can an employer identify what is covered by this characteristic?

Religion

Although the term religion has not been explicitly defined, it has been taken to mean an individual’s religious beliefs as well as their freedom of thought and conscience, which refers to the wording under Article 9 of the European Convention on Human Rights (ECHR). World religions will of course be caught by such provisions, but it is likely that lesser-known faiths such as Druidism or the Church of Scientology will also receive protection. Importantly non-belief and scepticism will receive the same protection afforded to those who have a positive belief. Employers need to bear in mind that belief is subjective so may vary from person to person within the same religion.

Belief

Belief is used to describe a philosophical belief system that falls outside of being a religion. To be protected, an individual’s belief must: 

• Be worthy of respect in a democratic society;
• Concern a weighty and substantial aspect of human life and behaviour;
• Attain a certain level of cogency, seriousness, cohesion, and importance.

Further, the case of Grainger plc v Nicholson confirmed that an individual’s belief (whether religious or philosophical) will qualify for protection if it:

• Is genuinely held;
• Is not simply an opinion or viewpoint based on the present state of information available;
• Concerns a weighty and substantial aspect of human life and behaviour; 
• Attains a certain level of cogency, seriousness, cohesion and importance; and
• Is worthy of respect in a democratic society, is not incompatible with human dignity, and is not in conflict with the fundamental rights of others.

Examples of philosophical beliefs that have been found to be protected include a belief in the sanctity of life extending to a fervent anti-fox hunting and anti-hare coursing belief, environmentalism and belief in climate change as well as ethical veganism and, most recently, gender critical beliefs. However, mere support of a political party will not be a protected belief. In addition, the Grainger test will not protect a belief which could appear to be objectionable, such as racism or homophobia, on the basis it is not worthy of respect in a democratic society and is incompatible with human dignity.

This area of law looks set to develop as individuals continue to exercise their freedom of expression and more beliefs are considered under the Grainger test; the recent case of Corby v Advisory, Conciliation and Arbitration Service concerned a belief in opposition to critical race theory. For more information, please see our recent article. Employers need to watch for developments in this area to ensure that they do not inadvertently discriminate against someone with a protected belief.

Common issues employers face

Dress codes at work

How far an employee is entitled to manifest their religion or belief at work has been the cause of much litigation, not least around wearing items that indicate religious beliefs, such as a Christian employee wanting to wear a cross or a Muslim employee wanting to wear a hijab. Sometimes these conflict with an employer’s dress code and employers need to consider whether a potentially indirectly discriminatory dress code can be objectively justified. For example, an employer’s restriction of religious dress for reasons of political and religious neutrality in customer-facing roles, or for health and safety reasons, has been found to be a legitimate aim capable of supporting objective justification. However, where such neutrality was motivated by commercial interests in the form of honouring a customer’s wishes, this would likely not be the case. 

Time off for prayers, days of rest and religious holidays

Generally, any attempt by an employer to prevent an employee taking time off to pray or observe a religious day of rest will be indirect discrimination unless again the requirement can be objectively justified. In particular, even where there is a potential legitimate aim for refusing time off, such as to meet customer demands, employers need to consider whether there are other ways to achieve that aim which would have less impact on those with a particular religion or belief, and if there are, to implement these measures rather than refusing the time off.

Manifestation of beliefs

For direct religion or belief discrimination to occur, less favourable treatment must be because of the religion or belief. This has led to a distinction between an employee holding (or not holding) a religion or belief and the inappropriate manifestation of that religion or belief, for which the employee can be disciplined. Understanding what an inappropriate manifestation is and whether it is indissociable from the belief itself is not easy and employers need to take advice before disciplining an employee for what they consider to be an inappropriate manifestation. 

Real world challenges

The data presented in Pearn Kandola’s recent Religion at Work Report (2023) offers some real-world insight into the challenges individuals of faith face in the workplace. 

Nearly half (47%) of the 6,000 respondents did not feel comfortable discussing religious festivals at work, reinforcing the need for employers to be mindful of religious beliefs to prevent discrimination. Moreover, almost a third (32%) of employees experienced negative consequences when expressing their religious identity at work, including mockery and discrimination. The report also emphasises the impact of religious expression on well-being and performance. 

These statistics underscore the pervasive nature of the issue, indicating that a significant portion of the workforce grapples with expressing their religious identity in a professional setting.

Professor Binna Kandola OBE, Senior Partner at Pearn Kandola, acknowledged how important faith is in the workplace. ‘This research underscores the tangible consequences that workplace religious discrimination can have on employees, highlighting the importance of creating environments where individuals feel safe to be themselves.’

He concluded, ‘these statistics serve as a compelling and urgent call to action for employers to not only acknowledge the issue but also to implement concrete measures that promote diversity, equality, and inclusion in the workplace.’

Competing rights

Given the rise in different religious and philosophical beliefs in the workplace, there is increased scope for conflict to arise between those beliefs themselves, or between those beliefs and other protected characteristics, such as sexual orientation. Employers must try to balance these competing rights, a difficult road to navigate. Whilst employers should not discriminate against employees simply because they hold certain views, this does not necessarily give employees the right to manifest or express those beliefs regardless of the impact on others. It would be appropriate, for instance, for an employer to have a policy prohibiting behaviour which could amount to unlawful harassment, even if the behaviour in question is an expression of a strongly held religious belief.

Concluding thoughts

Employers must be aware of their obligations and maintain and enforce adequate policies relating to equal opportunities and equality and diversity. In doing so, they promote an inclusive working environment that is accepting of people of all faiths and beliefs. They must also manage any employee relations issues that arise sensitively, in order to minimise their exposure to risk.

 

Link to article