Religious Discrimination

Since December 2003 regulations have been in force which provide protection to workers against discrimination on the grounds of their “religion or belief”. The regulations define “religion or belief” as “any religion, religious belief, or philosophical belief”. Naturally it is up to the courts and tribunals to determine whether any particular “religion” or “belief” falls within the scope of these regulations. There has been a slow, but clear increase in the number of claims of religious discrimination brought in the employment tribunals, which received 307 claims in 2005/05, increasing to 648 in 2006/07 [1].

The regulations protect both adherents to a religion and those that do NOT have a religion; as well as those that hold a particular religious or philosophical belief, and those that do NOT. The relevant ACAS guidelines state that an employment tribunal is likely to “consider things such as collective worship, a clear belief system and a profound belief affecting the way of life or view of the world”. The Data guidance refers to a religion having a “clear structure and belief system”. It is therefore clear that the principle world religions; Christianity, Islam, Judaism, Hinduism, Sikhism, and Buddhism come within the legal definition of “religion”.

The term “religious belief” is wider than the term “religion”. The DTi guidance makes it clear that the regulations are intended to cover individuals that DO NOT have a particular belief. For example a Muslim employer refuses to offer a job to an individual who is a non-Muslim, that individual can bring a claim under these regulations (as it is not necessary to identify a particular religion or religious belief of the individual job applicant. The job applicant was clearly discriminated against because he/she is a non-Muslim. Therefore it does not matter if he/she was say a Hindu, or Christian, or atheist.

Holding a particular philosophical belief (or equally NOT holding it) is also protected under the regulations. It is difficult to see what will and what will not be regarded as a protected “philosophical belief” under these regulations. Caution should be exercised by employers in addressing this in practice. The regulations protect individuals from direct discrimination, indirect discrimination, harassment, and victimisation on the grounds set out above. The protection not only protects those that have a different religious or philosophical belief to the employer, but also those that the employer PERCEIVES to have a different religious or philosophical belief (even if they in fact hold the same such beliefs as the employer) from the one which the employer holds.

Particular areas of concern for employers when considering indirect discrimination issues may include the working hours, holiday leave, food at staff canteens, and social events that might exclude those who hold certain religious beliefs. A practical problem for employers is that there is no requirement under the regulations that the worker must provide the employer with evidence of holding a particular religious belief. The regulations expressly provide that the treatment over which the individual is complaining has to be on grounds of the religion or belief of someone OTHER THAN THE RESPONDENT (usually employer. However, it does not have to be the religion or belief of the individual complaining that forms the basis of the complaint. Detrimental treatment on the grounds of the religion or belief of any person OTHER THAN THE RESPONDENT may form the basis of the claim. For example, if a worker, Mr A (say a Muslim) intervenes on behalf of harassed colleagues (say Hindus) against his employer (a Muslim), Mr A will be protected under the regulations even though HE has the same religious beliefs as his employer.

The Employment Appeals Tribunal has ruled, in a case called Chondol v Liverpool City Council, that the protection under these regulations does not cover an employee that tries to foister his own religious beliefs on others. In this case the employee asked clients if they had read the Bible, and if they were regular church-goers. His employer disciplined him for failing to follow a policy that prohibited that type of conduct. The Employment Appeals Tribunal concluded that the reason for the employer taking the disciplinary action was not the person's religious beliefs per se, but rather the fact that the employee had tried to foister those beliefs on their clients, and repeatedly asked clients about their religious beliefs,- conduct which is not protected under the regulations. Naturally this applies to all religious beliefs, not just Christianity.

Employers should ensure that their recruitment procedures, provisions for training, promotion, benefits and all aspects of work do not preclude or impact detrimentally on people holding any religious belief. Furthermore, they should ensure that this issue is addressed in their Equal Opportunities Policy (see PAYG Equal Opportunity Policy), and that managers are properly trained to identify the relevant issues and to implement their procedures correctly.