Religion and belief discrimination update
New legislation in force from 30 April 2007 amends the Employment Equality (Religion or Belief) Regulations 2003. This guidance note sets out the changes that have been made to the Regulations.
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Introduction
Removal of "similar" requirement
Lack of belief covered
New definition of direct discrimination
Indirect discrimination
Harassment and victimisation
Exceptions for genuine occupational requirements
Impact on the workplace
Summary
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Key points
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The Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660) were introduced in December 2003. They provide protection against direct and indirect discrimination, harassment and victimisation on the grounds of religion or belief. They apply to all aspects of employment, including recruitment, dismissal, terms and conditions, promotion, transfers and training. Those protected include current and former employees, job applicants, apprentices, some self-employed workers, contract workers, current and prospective partners and people already in, or seeking, vocational training.
The 2003 Regulations have been amended by Part 2 of the Equality Act 2006, which came into force on 30 April 2007 (Equality Act 2006 (Commencement No.2) Order 2007 (SI 2007/1092)). This guidance note considers the effect of the amendments, and the impact of the 2003 Regulations on the workplace.
Removal of "similar" requirement
There have been two key changes to the definition of "religion or belief".
Prior to the amendments, "religion or belief" covered "any religion, religious belief, or similar philosophical belief". The requirement that a philosophical belief be "similar" to a religious belief has been removed. The new definition provides that "religion" means any religion, and "belief" means any religious or philosophical belief.
The law does not explicitly define what falls into the category of a religion or belief, and provides no list of approved religions or beliefs. However, the phrase should be taken as including all the major religions, such as Christianity and Hinduism, as well as the less widely practised religions, cults and fringe religions.
Outside the area of discrimination law, there have been a number of decisions where the definition of religion or belief has arisen, and thetribunals would look to these for guidance on whether or not a person's religion or belief falls within the protection of the Regulations.
In deciding if a person's religion falls within the protection of the law, the courts look at whether or not there is a belief in a supreme being and some form of collective worship. A belief must be more than opinions or deeply held feelings. According to the European Court of Human Rights, there must be "a certain level of cogency, seriousness, cohesion and importance, which must be worthy of respect in a democratic society and must not be incompatible with human dignity". An example of a belief that might meet this description is humanism. Vegetarianism is also arguably a "belief", so an employer's failure to provide vegetarian meals in a work canteen, for example,could potentially lead to a tribunal claim. In many cases it will be obvious whether or not a person's beliefs fall under the protection of the legislation. However, where there is a dispute, it will be up to a tribunal to decide.
The Regulations are not intended to provide protection against discrimination on grounds of political opinion. However, the change in the definition may bring some political beliefs within the scope of the protection, where they shape a person's way of life or perception of the world. For example, it could be argued that pacifism is a belief, so if an employee is harassed because he or she has taken part in anti-war demonstrations, this may now fall within the scope of the Regulations.
It is now unclear whether someone who is less favourably treated because of his or her support for, membership of or activities in, for example, the British National Party (BNP) could claim discrimination on grounds of belief. In Baggs v Dr FDA Fudge [2005] ET/1400114/05, an employment tribunal decided that the BNP is a political party and that membership of the BNP was not protected by the 2003 Regulations. It was, therefore, lawful for the employer concerned to refuse to employ a member of the BNP. It should, however, be noted that this case is a non-binding employment tribunal decision, made before the change in the definition of what constitutes a religion or belief.
In Redfearn v Serco Ltd t/a West Yorkshire Transport Service [2006] IRLR 623, a race discrimination case, the Court of Appeal rejected a discrimination claim by an employee who was dismissed when it was revealed that he was standing as a candidate for the BNP. The Court of Appeal said: "The BNP cannot make a non-racial criterion (party membership) a racial one by the terms of its constitution limiting membership to white people. Properly analysed Mr Redfearn's complaint is of discrimination on political grounds, which falls outside the anti-discrimination laws."
If a similar case is brought on grounds of religion or belief, it will be necessary to determine the grounds for the less favourable treatment. If the reason for the treatment is that the employee subscribed to the BNP's views, rather than that he or she was a member of the BNP, such views may be considered a philosophical belief.
Lack of belief covered
The second change to the definition of "religion and or belief" is an amendment to the effect that it now specifically includes a lack of religion or belief.
Originally, the 2003 Regulations made no reference to lack of religion or lack of belief, although explanatory notes on the Regulations from the Department of Trade and Industry (DTI) indicated that lack of religion or belief was covered. The DTI said: "References to 'religious belief' and 'similar philosophical belief' include reference to an individual's belief structure involving the absence of particular beliefs because these are two sides of the same coin. For example, if a Christian employer refuses an individual a job because he is not Christian, regardless of whether he is Muslim, Hindu, atheist (etc), that would be direct discrimination on grounds of the individual's religious belief, which can be described as 'non-Christian'. It is not necessary to identify the individual as an atheist or a Hindu for the purposes of the Regulations in such circumstances if he can be identified as a 'non-Christian'. The same is true of persons who might describe themselves as 'unconcerned' by religious beliefs, or 'unsure' of them."
The new definition explicitly states that a reference to religion includes a reference to lack of religion, and a reference to belief includes a reference to lack of belief. This refers to a lack of belief generally, for example where a person would not describe him- or herself as a Christian, but does not hold any particular religious or philosophical beliefs. It also refers to lack of a particular belief, for example where a Catholic employer discriminates against a non-Catholic employee. It is, therefore, now clear that a person is protected from discrimination because he or she does not share the religion, or a particular belief, of the discriminator.
New definition of direct discrimination
The definition of direct discrimination in reg. 3(1)(a) of the Regulations has been changed. The original definition provided: "A person ('A') discriminates against another person ('B') if, on grounds of religion or belief, A treats B less favourably than he treats or would treat other persons." Regulation 3(2) went on to provide that the reference to religion or belief in reg. 3(1)(a) did not include A's religion or belief, ie the religion or belief of the discriminator.
Regulation 3(2) has now been repealed and the definition in reg. 3(1)(a) has been modified. It now states: "A person ('A') discriminates against another person ('B') if, on grounds of the religion or belief of B or of any other person except A (whether or not it is also A's religion or belief), A treats B less favourably than he treats or would treat other persons."
The Regulations do not, therefore, apply where the less favourable treatment occurs solely on grounds of the employer's religion or belief; for example, where the employer is motivated to take action because of the requirements of his or her religion or belief, rather than because of the religion or belief, or lack of religion or belief, of the employee discriminated against.
The amended Regulations also clarify that an employer will have unlawfully discriminated against an employee who suffers less favourable treatment, even if the employer and employee both subscribe to the same religion or belief. This will be applicable where there is discrimination between different sects within the same religion, or where, for example, a devout Muslim discriminates against a fellow Muslim on the grounds that he or she is not sufficiently religious.
Direct discrimination could also occur if the less favourable treatment is based not on B's religion or belief, but on another person's religion or belief. For example, the discrimination could relate to the religion or belief of someone with whom B associates, such as family or friends, or occur because B is married to someone of a particular religion.
The government has always intended that less favourable treatment can also relate to assumptions about an employee's religion or belief, even if those assumptions are wrong; for example, where an employee is treated less favourably because he or she is assumed to be Muslim but is, in fact, Sikh. This would mean that an employee would be able to bring a claim of religious discrimination if any less favourable treatment was because he or she was thought to belong to a particular religion or to hold particular beliefs. The employee would not have to disclose his or her religion or beliefs to bring a claim.
However, now that the definition of direct discrimination has been amended, it is arguable that the amended Regulations do not cover less favourable treatment as a result of mistaken assumptions about an employee's religion or belief. The new definition of direct discrimination protects against discrimination "on grounds of the religion or belief of B". This is arguably a narrower definition than the original wording, which protected against less favourable treatment "on grounds of religion or belief".
Indirect discrimination
The definition of indirect discrimination for the purposes of the 2003 Regulations remains unchanged by the Act. Regulation 3(1)(b) of the Regulations defines indirect discrimination as occurring where person A applies to person B a provision, criterion or practice that person A applies, or would apply, equally to persons not of the same religion or belief as B, but that:
- puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons;
- puts B at that disadvantage; and
- A cannot show to be a proportionate means of achieving a legitimate aim.
For example, requiring female employees to comply with a dress code that does not allow Muslim women to wear a hijab would be unlawful unless the employer could show that the discriminatory effect of this requirement on such women was outweighed by a good business reason for imposing the requirement. In one of the most highly publicised cases under the Regulations, Azmi v Kirklees Metropolitan Council [2006] ET/1801450/06, the tribunal found that refusing to allow a teacher to wear a veil when teaching was justified as the job involved face-to-face contact with children. This decision was upheld by the EAT.
Each case is decided on the facts, and employers must be able to show that their policies are justified. An employer will need to show that it has a legitimate business need, that the policy is necessary to meet that need, and that there is no alternative means available for achieving the aim. Refusing to allow female employees to wear a veil, for example, is likely to be hard to justify for employees not in direct contact with the public.
Employers should be aware that the line between direct and indirect discrimination is not clear-cut. It is not completely certain whether discrimination concerning expression of a person's religion or belief through, for example, turbans, crucifixes or other religious symbols, beards or hair length, will amount to direct or indirect discrimination.
This is significant for employers because it is only in claims of indirect discrimination that an employer may be able to defend its actions or policies by showing that they are justified on business grounds. If a tribunal decides that this sort of discrimination is direct discrimination on grounds of the person's religion or belief, the employer will not be able to justify it, even if it has good business reasons for its actions or policies.
The government's regulatory impact assessment for the Regulations and the Acas guidance, Religion or belief and the workplace: putting the Employment Equality (Religion or Belief) Regulations 2003 into practice (PDF format, 565K) (on the Acas website), suggest that tribunals consider discrimination of this type to be indirect discrimination, capable of being objectively justified. However, in Azmi, the EAT said it could "see no reason for there to be any a priori position that a 'manifestation' of a religious belief always has to be dealt with as indirect discrimination".
Harassment and victimisation
The 2003 Regulations also provide protection against harassment and victimisation on grounds of religion or belief.
Harassment involves unwanted conduct and occurs where, on the grounds of religion or belief, a person violates someone's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. For example, a group of religious staff might be trying to persuade another member of staff who is an atheist to join their church. If the employee feels intimidated by this behaviour it could amount to harassment, for which the employer will be liable unless it takes reasonable steps to prevent it. Lack of intention is not a defence to harassment.
The harassment provisions may protect against harassment based on the perpetrator's religion or belief as well as that of the victim, whereas, as stated above, the direct discrimination provisions apply only to the victim's religion or belief. This is because reg. 5, which defines harassment, does not exclude the harasser's religion or belief in the same way that the direct discrimination provisions do.
Victimisation involves less favourable treatment because the victim brought proceedings under the Regulations, gave evidence in connection with such proceedings, or alleged that the Regulations had been contravened. Victimisation also extends to the situation where the discrimination is because the employer knows that the victim intends to do any of these things, or suspects that he or she has done, or intends to do, any of them.
As well as being liable for their own acts of discrimination against employees or job applicants, employers are liable for any discriminatory acts committed by their employees or third-party agents in the course of employment, unless they can prove that they took reasonably practicable steps to prevent the discrimination. This tends to arise most often in relation to harassment. "In the course of employment" could include discrimination that occurs at, for example, work events, office parties and training courses.
Exceptions for genuine occupational requirements
Not all differences of treatment on grounds of religion or belief are unlawful; there are exceptions set out in the Regulations. Regulation 7 provides an exception where being of a particular religion or belief is a genuine occupational requirement (GOR) for a post and it is proportionate to apply the requirement in the particular case. It also provides an exception for employers with an ethos based on religion or belief where being of a particular religion or belief is a GOR for a post and it is proportionate to apply the requirement in the particular case. A GOR may apply to recruitment, promotion, transfer, training or dismissal. Religion or belief and the workplace: putting the Employment Equality (Religion or Belief) Regulations 2003 into practice (PDF format, 565K) (on the Acas website) gives guidance for employers wishing to claim a GOR.
Impact on the workplace
The law on discrimination on grounds of religion or belief has a possible impact on various aspects of working life. Employers should consider whether or not their policies, practices and workplace rules indirectly discriminate against employees of certain religions and, where they do, if adjustments can be made.
Religion or belief and the workplace: putting the Employment Equality (Religion or Belief) Regulations 2003 into practice (PDF format, 565K) (on the Acas website) provides an appendix on the characteristics of the most commonly practised religions in Britain, including details on festivals, food, clothing and bereavement. As a matter of good practice, employers should accommodate their employees' religious observances wherever reasonably practicable.
Employees do not have to give information to their employer about their religious beliefs, but collecting such information confidentially and anonymously will help employers meet the needs of their employees.
Hours of work and holidays: Employees may ask for time off for religious holidays or for changes to their hours for religious reasons. For example, Jewish employees may ask to leave early on Fridays and Muslim employees may ask for time off on Fridays to attend prayers. Employers should allow such requests whenever possible. They could consider allowing employees to take annual leave, to work additional hours and then take time off in lieu, to take unpaid leave, or to arrange some other flexible working arrangement to accommodate their requirements.
An employer would probably be justified in refusing a request for time off for a religious holiday only if it would affect the business and all employees were prevented from taking leave at that time.
Dietary requirements: Some religions impact on the diet of followers, for example Muslims are forbidden to eat pork or drink alcohol. If, as a result, an employee working with food or drink does not want to handle certain products, the employer should consider whether or not it can accommodate the employee's request without affecting the needs of the business.
If an employer provides food in a staff canteen or at a social event, it should consider how best to cater for the needs of all its employees. To do this the employer will need to consult the employees about their religious beliefs and dietary requirements. Employers do not have to provide Halal or Kosher food if it is required by only a small percentage of their workforce, but should consider offering a vegetarian option (see above). Employers may also need to consider what provision to make for employees who need their food to be stored in a special way or to be handled separately from other food.
Uniforms and dress codes: Employers should consider whether or not their policies on clothing, jewellery and hair are discriminatory on grounds of religion or belief. For example, some women are required by their religion to cover their legs or head, and some men to wear certain headgear or to have long hair or a beard. Where members of staff come into contact with the public or need to wear special clothing for health and safety reasons, a dress code may be easier to justify.
Prayer facilities: Employers do not have to provide time and facilities for religious observance but should do so wherever possible. For example, if there is somewhere suitable, employees should be allowed access to a quiet place for prayer if they need to pray during the day, provided that this does not disrupt others or affect the employees' ability to do their job.
Summary
The Employment Equality (Religion or Belief) Regulations 2003 have been amended by Part 2 of the Equality Act 2006, which came into force on 30 April 2007. The amendments have removed the requirement that a philosophical belief be "similar" to a religious belief, opening up the possibility that the Regulations may now cover political beliefs. The Regulations now expressly state that protection is provided for lack of religion and lack of belief. The new definition of direct discrimination makes it clear that it protects against less favourable treatment on the grounds of the religion or belief of the employee or the religion or belief of others with whom the employee associates, such as family or friends, but not where it is solely the employer's religion or belief that is the reason for the discrimination.
This feature was contributed by Katie Wood, a barrister specialising in employment and discrimination law.
