Millions of workers across the UK celebrated the end of Ramadan last month and this might have left you wondering about whether you are doing enough to protect religious beliefs in the workplace.
Every worker should feel safe and protected at work.
Under the Equality Act 2010, religion or belief is a protected characteristic, so employers also have a responsibility under the Act to safeguard their employees from discrimination.
Our Head of Employment, Lisa Judd, goes into detail on how you can effectively manage religion and religious discrimination in your workplace.
How does the law define religious discrimination?
As defined in Section 10 of the Act:
- “Religion” means any religion, and a reference to religion includes a reference to a lack of religion.
- “Belief” means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.
To qualify for protection:
- The belief must be genuinely held.
- It must be a belief, not an opinion or viewpoint based on the present state of information available (see Belief is more than an opinion).
- It must be a belief as to a weighty and substantial aspect of human life and behaviour.
- It must attain a certain level of cogency, seriousness, cohesion and importance.
- It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
Whilst this article focuses on religious discrimination, all qualifying beliefs are treated equally, be they philosophical or religious
The Equality Act recognises four main types of discrimination around religion and belief:-
Direct discrimination is when someone is treated less favourably than a comparator of a different religion (or no religion) “because of their religion or belief”, for example, overlooking someone for promotion due to their religion.
On the other hand, indirect discrimination is when you apply a policy or have a practice which appears neutral, but that actually subjects those of a particular religion to particular disadvantage without objective justification (i.e. being able to show that the policy or practice was a proportionate means of achieving a legitimate aim).
Employers also have a responsibility to monitor any harassment related to religion that has the purpose or effect of violating an individual’s dignity or creating a hostile work environment.
Lastly, there is victimisation, which is when someone is subject to unfavourable treatment because they have raised or supported a complaint about religious discrimination.
Workers are protected from discrimination because they are associated with someone with a particular religion or belief or because they are perceived to be of a certain religion or to hold certain beliefs.
Clash of rights
Article 9(1) of the European Convention on Human Rights gives an absolute right to hold a religion or belief. That said, the manifestation of that religion or belief may be restricted under Article 9(2) in accordance with the law, if it is necessary in a democratic society, in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
Difficult issues can arise when balancing this right against other convention rights e.g. the right to freedom of expression, or the right to respect for private and family life.
Similarly, there is scope for conflict between the protected characteristics of religion or belief and sexual orientation and gender reassignment.
Employers can face the sometimes very difficult task of trying to balance competing rights. Here, case law suggests that while employers should not discriminate against workers because they hold certain religious views or beliefs, this does not necessarily give those workers carte blanche to manifest or express those beliefs regardless of the impact on others.
A worker complaining of discrimination on the grounds of their religion or belief may see their claim fail for “inappropriate manifestation” of their religion when tested against the legitimate interests referenced in Article (2).
What is your duty as an employer in preventing religious discrimination?
We understand that it can feel intimidating to know how to manage religious requests fairly and lawfully. However, this does not mean that you should ignore your responsibilities as an employer.
You should be actively avoiding discrimination in your recruitment and employment process, all the way to your dismissal procedures.
You must also make sure you are regularly reviewing workplace rules to spot potential indirect discrimination risks, implementing strict policies to prevent harassment and responding promptly to complaints.
Religious requests should be managed consistently and you must consider health and safety implications carefully before you restrict any religious practices.
There is also the safety element of protecting information around an employee’s religion, as this is a special category of data under the UK GDPR and the Data Protection Act 2018.
It is your duty to try and find a workable balance between legitimate business needs and reasonable accommodation of religious practices.
Below, we have gone into detail on some of the top requests that we see occur around religion.
- Dress and appearance
You may see some requests from employees to wear religious dress or symbols, such as a hijab, turban, kippah or crucifix. Employers should consider whether any potentially indirectly discriminatory dress code requirements can be objectively justified, for example, because of safety or hygiene reasons, and if not whether an exception might be made.
- Prayer breaks and quiet spaces
If your employee’s religion requires prayer during the working day, they may look to request shorter breaks for prayer or access to a quiet room to undertake their religious observance.
Even minor adjustments to existing break times or creating a shared quiet space can sometimes accommodate these requests without disrupting operations.
If a quiet place is available and allowing its use for prayer does not cause problems for other employees or the business, employers with sufficient resources may be discriminating because of religion or belief by refusing such a request. On the other hand, employers should be careful to avoid creating a disadvantage for workers who do not need a quiet room (for example, by converting the only rest room), as this might amount to indirect religion or belief discrimination. It is therefore good practice to consult with all workers before designating a room for prayer and contemplation and to discuss policies for using it. Employers should also consider providing separate storage facilities for ceremonial objects.
- Working hours and religious holidays
Some religious periods can affect employees’ availability and you should have early processes and practices in place to prepare for these.
If a worker requests annual leave for a religious occasion, employers should seek to accommodate the request, provided that the worker has sufficient holiday entitlement and it is reasonable for them to be absent from work during the period requested.
You might want to start encouraging early notice of requests or shift swaps where feasible.
If you have annual shutdowns, you might wish to consider whether requiring all workers to take leave at set times disadvantages individuals whose religious beliefs mean they need annual leave at other times when weighing the needs of the business (which could be a legitimate aim) and the needs of their workers when deciding whether having a shutdown is a proportionate means of achieving a legitimate aim.
No matter your approach, you need to apply an objective criterion when you approve or refuse leave.
- Fasting and social events
We know how common it is for workplace culture to revolve around food and drink.
Whether it is setting up a staff lunch or your annual holiday party, it genuinely may not pass your mind to consider that some of your workers may be fasting or not want an event that centres around alcohol.
Employers should make sure they offer inclusive catering options during these events and stay mindful of fasting periods, such as Ramadan. Employers might consider temporary adjustments to working times or duties to support workers during periods of fasting.
Providing all staff with some general information about what fasting entails or explaining why certain staff might be allowed to leave early and if any time missed is being made up elsewhere, can help avoid other workers feeling any accommodations made are unfair.
A little forethought can help prevent some workers from feeling excluded and allow everyone to have fun.
- Proselytising
Some individuals see it as their religious duty to promote and spread their faith. Where an employer’s policy prevents them from doing so in the workplace, this arguably places persons holding these religious beliefs at a disadvantage and could be indirectly discriminatory. However, depending on the circumstances, the employer’s policy might be objectively justified.
- Bereavement & compassionate leave
Certain religions have distinct bereavement requirements which may mean that employees in mourning will wish to take an extended period of time off work. The issue may raise questions of indirect discrimination.
- Recruitment and training
Save for certain roles with occupational requirement exceptions, employers need to be sure that discrimination based on religion is prevented from the outset in their recruitment and promotion practices.
Take a step back and assess your job adverts and interview process first. Do they focus on skills and requirements? Are you using objective questions for potential candidates?
You should then look to review your employment contracts and workplace policies, including any anti-harassment policy, dress standards, leave procedures and grievance processes to ensure they address equality on the grounds of religion or belief appropriately.
Taking that extra step of getting additional training or legal support can help you and your team manage discrimination risks more effectively and know how to assess requests in a way which reduces the risk of discrimination complaints / claims.
How can employers handle religious requests?
Once an employee makes a request to change their employment conditions in relation to their religion, you need to assess its impact.
You should look at the bigger picture and consider how it will affect your operations and, if the change cannot be easily agreed, if there are any alternative solutions you can offer.
If you do choose to deny the request, you need to clearly document your reasoning and provide clear explanations as to why.
Your approach to any religious request should be consistent to provide some protection if your decisions are later challenged.
There are some occasions where an employee’s concerns about your employment practices escalate and you need to ensure you follow a fair grievance process, investigate the matter impartially and address inappropriate behaviour swiftly.
How can we support you?
We are here to help guide you through your duties under the Employment Rights Act and make sure your equality and inclusion policies are fair and compliant.
If you do find yourself involved in a discrimination complaint, we can advise you on the suitable resolution and even help you manage the Employment Tribunal process, if it goes further.
If you want further advice on discrimination matters in the workplace, contact our Employment Law team.
