Religion or belief discrimination

Overview

• The applicable law is contained in the Equality Act 2010 under which religion or belief is a 'protected characteristic'.
• Religion or belief is defined as 'any religion, religious belief or similar philosophical beliefs'.
• The definition is very broad in scope and does not stipulate that a particular religion must have any minimum number of followers to qualify. Factors which be taken into account include collective worship, a clear belief system and a profound belief affecting the way of live or view of the world.
• To qualify as a 'philosophical belief', the belief must satisfy certain conditions, among them that the belief is genuinely held, relates to weighty and substantial aspects of human behaviour and is worthy of respect in a democratic society.
• Strong environmental convictions and a fervent opposition to fox hunting have both been held to qualify as a 'philosophical belief' capable of legal protection. See also 'Protecting "philosophical beliefs" - have we gone too far?'
• Individuals are protected on the grounds of their 'non-belief'.
• See the Policies and Douments section for a specimen religion and beliefs policy (subscribers only).

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Coverage

• The law applies to all stages of employment including recruitment, contract terms, benefits, promotion, dismissal, post-termination discrimination, harassment and access to training.
• Workers and applicants for employment are covered as well as employees.

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Unlawful discrimination

• The types of unlawful discrimination covered are direct discrimination; indirect discrimination; harassment and victimisation.
• Direct discrimination takes place when an employer treats a worker (or job applicant) less favourably on the grounds of that person’s religion or belief than he treats or would treat others. The discrimination can be based on the individual’s religion or belief; the religion or belief of the people the individual associates with; or the employer’s perception of the individual’s religion or belief. Direct discrimination cannot be justified unless the employer can show that there is an occupational requirement.
• Indirect discrimination takes place when an employer applies a 'provision, criterion or practice' which applies to everyone but which puts (or would put) a person of a certain religion or belief at a particular disadvantage and is not a 'proportionate means of achieving a legitimate aim. Examples of indirect discrimination might be working hours, holidays or dress codes which appear to be fair to everyone but which people of some religions might not be able to satisfy. Indirect discrimination might be justifiable if it is for a legitimate business reason.
• Harassment is unwanted conduct which has the purpose or effect of violating dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment. It includes such things as verbal abuse; creating an environment in which religious differences are commented on adversely and/or frowned on; and intentional and unintentional acts. The test to establish whether or not harassment has taken place will be partly subjective and partly objective and will assess whether a reasonable person would have taken offence. This means that an overly sensitive employee who takes offence unreasonably at a harmless and innocent comment will probably not have a valid claim.
• It is unlawful discrimination if an individual is victimised for bringing proceedings under the Act or for giving evidence or information in connection with proceedings.

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Occupational requirement

• If possessing a particular protected characteristic (i.e. a religion or belief) is a requirement of a job, an employer will not be acting unlawfully in refusing to employ someone who does not possess that characteristic provided it can show that applying the requirement is a proportionate means of achieving a legitimate aim.
• In the case of religion or belief, the defence covers a requirement not to possess the characteristic, i.e. a requirement not to be of a certain religion or belief.
• Employers cannot simply decide that they would prefer to employ someone with a particular religion or belief – it must be an ‘occupational requirement’, i.e. crucial to the post and not merely one of several important factors.
• The word ‘occupational’ means the requirement must relate to the nature of the job in question, rather than the nature of the employing organisation.
• Even if possessing a particular characteristic is an occupational requirement, an employer must still show that applying the requirement is a proportionate means of achieving a legitimate aim. The test will not be satisfied if it would have been reasonably possible to achieve the result in some other way.
• In addition to the occupational requirement exemption, employers with an ethos based on a religion or belief can limit some roles to those who share the beliefs of the organisation.

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Remedies

• Complaints must be brought within 3 months of the act of discrimination occurring or, if there is a series of acts, within 3 months of the last act.
• An employee can use a questions procedure to try and find out more information from his or her employer to help decide whether or not to bring a claim.
• The employer should reply within 8 weeks, failing which the tribunal will draw its own conclusions.
• If a complaint of religion or belief discrimination is proved, a tribunal has various options. It can:
  • make a declaration that there has been unlawful discrimination
  • make wide-ranging recommendations that an employer takes certain steps to obviate or reduce the effect of any discrimination (e.g. retraining staff or telling the employer to publicise its selection/promotion criteria), or
  • award compensation - which is not subject to a statutory limit.
• If the employee proves that there was differential treatment which could have been on the grounds of religion/belief, the employer must prove that there was some other ground and no discrimination occurred.

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Resources

ACAS

• Religion or Belief and the Workplace
• Audit tool
• Guidance Notes on Audit Tool
• Score Sheet for Audit Tool

Business Link

• Discrimination on the Grounds of Religion or Belief

• Race, Religion and Employment
• Diversity Calendar 2012

Equality and Human Rights Commission

• Code of Practice on Employment

• Equality Act 2010 forms for obtaining information

Other

• Employers Network for Equality and Inclusion (enei) - independent employers' network to share good practice on religion, belief and non-belief

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