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Religious or philosophical belief discrimination


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What is religious or philosophical belief discrimination in the workplace

Religious or philosophical discrimination in the workplace occurs if you are treated unfairly in the workplace because of your religious or philosophical belief or because of the religious or philosophical belief of someone else that you are associated with (such as a child or a partner). You are protected against religious or philosophical belief discrimination in the workplace under the Equality Act 2010. Under the Equality Act 2010 you must not be discriminated against because of your (or an associated person’s) protected characteristic. Your “religious or philosophical belief” is a protected characteristic under s.10 of the Equality Act 2010 and includes any religious or philosophical belief. Religious or philosophical belief discrimination can take the following forms:

  • Direct discrimination
  • Indirect discrimination
  • Harassment
  • Victimization

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Examples of religious or philosophical belief discrimination

  • A Muslim businessman decides not to recruit a Muslim woman as his personal assistant, even though she is the best qualified candidate. Instead he recruits a woman who has no particular religious or non-religious belief. He believes that this will create a better impression with clients and colleagues, who are mostly Christian or have no particular religious or non-religious belief. This could amount to direct discrimination because of religion or belief, even though the businessman shares the religion of the woman he has rejected
  • A factory owner announces that from next month staff cannot wear their hair in dreadlocks, even if the locks are tied back. This is an example of a policy  that has not yet been implemented but which still amounts to a provision, criterion or practice. The decision to introduce the policy could be indirectly discriminatory because of religion or belief, as it puts the employer’s Rastafarian workers at a particular disadvantage. The employer must show that the provision, criterion or practice can be objectively justified.
  • A Sikh worker wears a turban to work. His manager wrongly assumes he is Muslim and subjects him to Islamaphobic abuse. The worker could have a claim for harassment related to religion or belief because of his manager’s perception of his religion

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Religious or philosophical discrimination belief cases in the newspapers

  • Muslim couple take Morrisons to tribunal for ‘refusing holidays during Ramadan’ (The Yorkshire Post)
  • Man denied job for ‘being Christian’ settles with hotel (The Christian Institute)
  • Christian beauty worker sacked from job at Heathrow Airport ‘after fundamentalist colleagues accused her of being anti-Islam’ (The Mail Online)
  • Muslim boss who racially abused Sikh employee is told to pay him £18k (The Herald Scotland)
  • Christian nursery worker ‘sacked after refusing to read gay stories to children’ (The Telegraph)
  • Christian sacked from nursery did not suffer religious discrimination, appeals tribunal rules (National Secular Society)

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The definition of religious and philosophical belief under the Equality Act 2010

The case of Grainger plc & others v Nicholson set out the guidelines for deciding whether a religious or philosophical belief is covered under the Equality Act 2010. In order to qualify for protection under the Equality Act, the belief must be:

  • Genuinely held
  • A belief and not an opinion or viewpoint based on the present state of information available
  • A belief as to a weight and substantial aspect of human life and behaviour
  • The belief must have a certain level of cogency, seriousness, coherency, and importance
  • The belief must be worthy of respect in a democratic society, not be incompatible with human dignity, and not conflict with the fundamental rights of others

Religious beliefs that are covered

The ACAS guidance lists a number of commonly-practiced religious and beliefs in Britain:

  • Baha’i
  • Buddhism
  • Christianity
  • Hinduism
  • Islam
  • Jainism
  • Judaism
  • Rastafarianism
  • Sikhism
  • Zoroastrianism
  • A number of other ancient religious (e.g. Druidism, Paganism, Wicca etc.)

Other religious beliefs may be covered if they meet the Grainger guidelines set out above.

Philosophical beliefs that are covered

Any individual’s philosophical belief may be covered for protection under the Equality Act 2010. Potentially, beliefs in the importance of public service broadcasting, the existence of climate change, total abstinence from alcohol, pacifism, vegetarianism, and humanism may be covered.

It doesn’t matter that no-one else shares the belief in question – a philosophical or religious belief may be covered even if no-one else holds that belief.

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Direct religious or philosophical belief discrimination

The definition of direct discrimination is contained at s.13 of the Equality Act 2010. Under s.13:

(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others

Normally, but not always, direct discrimination involves the intentional treatment of someone less favourably because of their religious or philosophical belief. The easiest way to approach direct discrimination is in terms of comparative treatment – have you been treated less favourably than an actual or hypothetical colleague because of your religious belief or philosophical belief?

As well as being treated less favourably because of a protected characteristic that you possess, you are also protected from less favourable treatment if any of the following occur:

  • You are treated less favourably than others because of the protected characteristic with whom you are associated e.g. a friend or a relative (known as “discrimination by association”)
  • You are treated less favourably because of the protected characteristic of a person who you do not know (e.g. you are discriminated against because you refuse to discriminate against a customer because of their religious or philosophical belief)
  • You are treated less favourably because your employer wrongly perceives that you have a protected characteristic (e.g. you are discriminated against because someone at work wrongly perceives that you are Sikh)

Examples of direct religious or philosophical belief discrimination

  • A Muslim businessman decides not to recruit a Muslim woman as his personal assistant, even though she is the best qualified candidate. Instead he recruits a woman who has no particular religious or non-religious belief. He believes that this will create a better impression with clients and colleagues, who are mostly Christian or have no particular religious or non-religious belief. This could amount to direct discrimination because of religion or belief, even though the businessman shares the religion of the woman he has rejected
  • If an employer were to state in a job advert ‘Hindus need not apply’, this could amount to direct discrimination because of religious or philosophical belief against a Hindu who might have been eligible to apply for the job but was deterred from doing so because of the statement in the advert. In this case, the discriminatory basis of the treatment is obvious from the treatment itself
  • An employer rejects a job application form from a Christian whom he wrongly thinks is a Sikh, because the applicant has a Sikh-soundingname. This would constitute direct religious belief discrimination based on the employer’s mistaken perception

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Indirect religious or philosophical belief discrimination

Indirect discrimination occurs when your employer or prospective employer puts in place a rule, policy or practice which people of a certain religious or philosophical belief are less likely to be able to meet than other people, and this places them at a disadvantage.

The definition of indirect discrimination is contained at s.19 Equality Act 2010. Under s.19:

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristics of B’s if:

(a) A applies, or would apply, it to persons with whom B does not share the characteristic;

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it;

(c) it puts, or would put, B at that disadvantage; and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim

Examples of indirect religious or philosophical belief discrimination

  • A factory owner announces that from next month staff cannot wear their hair in dreadlocks, even if the locks are tied back. This is an example of a policy that has not yet been implemented but which still amounts to a provision, criterion or practice. The decision to introduce the policy could be indirectly discriminatory because of religion or belief, as it puts the employer’s Rastafarian workers at a particular disadvantage. The employer must show that the provision, criterion or practice can be objectively justified
  • A hairdresser refuses to employ stylists who cover their hair, believing it is important for them to exhibit their flamboyant haircuts. It is clear that this criterion puts at a particular disadvantage both Muslim women and Sikh men who cover their hair. This may amount to indirect discrimination unless the criterion can be objectively justified
  • A Muslim man who works for a small manufacturing company wishes to undertake the Hajj. However, his employer only allows their staff to take annual leave during designated shutdown periods in August and December. The worker considers that he has been subjected to indirect religious discrimination. In assessing the case, the Employment Tribunal may benefit from expert evidence from a Muslim cleric or an expert in Islam on the timing of the Hajj and whether it is of significance

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Harassment because of religious or philosophical belief

Harassment at work occurs if you are subjected to conduct relating to your religious or philosophical belief which is unwanted and has the purpose or effect of violating your dignity or creating an intimidating, hostile, disregarding, humiliating or offensive environment for you.

“Conduct” can include any form of act or omission e.g. a colleague making derogatory comments about your religious or philosophical belief in your presence or a co-worker putting up a nude calendar in the workplace.

The harassment need not be related to your particular religious or philosophical belief – you may also claim harassment in the following situations:

  • Where remarks relating to your religious or philosophical belief are made but not directed at you: for example, you are Muslim and a derogatory joke about Muslim people is made in the workplace but not directed at you.
  • Where remarks not relating to religious or philosophical belief (but not your religious or philosophical belief) are made about other people: for example, you are Jewish and a derogatory joke about Christians is made in the workplace. No Christians are present but you find the joke offensive.
  • Where remarks are made about a person you are associated with: for example, you have adopted a Muslim child and your colleagues repeatedly make offensive remarks about you.
  • Where you are falsely perceived to be of a particular religious or philosophical belief: for example, you are wrongly perceived to be a vegetarian and a number of offensive jokes are made about vegetarians
  • Where it is known that you are not of a particular religious or philosophical belief but your colleagues make offensive remarks anyway: for example, you are black and of English national origin but your colleagues, knowing this, subject you to “banter” about you being Nigerian

Examples of religious or philosophical belief-related harassment

  • A Sikh worker wears a turban to work. His manager wrongly assumes he is Muslim and subjects him to Islamaphobic abuse. The worker could have a claim for harassment related to religion or belief because of his manager’s perception of his religion
  • During a training session attended by workers of many religious beliefs, an atheist trainer directs a number of remarks of a derogatory nature about Christians to the group as a whole. A Christian worker finds the comments offensive and humiliating to her as a Christian. She would be able to make a claim for harassment, even though the remarks were not specifically directed at her

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Victimization

Under s.27 of the Equality Act 2010, it is unlawful to victimize you because you have done a “protected act”. Basically, this means that you must not be punished because you have complained about discrimination in one way or another or if you have helped someone who has been the victim of discrimination. The detriment which you may be subjected to can and does vary: you may be bullied at work, labelled a trouble-maker, denied promotion, training or annual leave, or even dismissed from your job.

You are protected against any detriment at work only if you do one of the following things (“protected acts”):

  • Make a complaint or claim of discrimination under the Equality Act 2010
  • Give evidence or information to help someone else who has made a complaint or claim under the Equality Act
  • Do any other thing which is related to the Equality Act
  • Say that someone has done something unlawful under the Act

Examples of victimization

  • A GP instructs his receptionist not to register anyone with an Asian name. The receptionist would have a claim against the GP if she experienced a detriment as a result of not following the instruction. A potential patient would also have a claim against the GP under the services provisions of the Act if she discovered the instruction had been given and was put off from applying to register
  • A worker threatens to make a complaint for religious or philosophical belief discrimination in the Employment Tribunal and is then threatened and pressurised by his employer to drop the claim
  • You make a claim for religious or philosophical belief discrimination and succeed. Your employer then writes a poor reference for you or refuses to provide one at all.

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Action you can take if you think that you’re being discriminated against

If you think that you are being discriminated against or harassed because of your or another person’s religious or philosophical belief then you should take action as soon as possible. Below are some examples of what you can do:

  • Inform your line manager that you believe that you are being discriminated against. Make sure that you put a complaint in writing (preferably by email so that there is a time and date stamp on the complaint and you can prove that it has been sent to the relevant person) and keep a copy. If you think that it is your line manager who is discriminating against you then make a complaint so someone else in a position of authority in your organisation.
  • Make a formal complaint (known as a “grievance”) to your HR department and also keep a copy of this
  • Obtain specialist advice from a qualified person – you can either consult a lawyer directly or make an appointment with the Citizens Advice Bureau to obtain initial advice
  • Collect evidence of the incidents that you think are discriminatory. An important thing to do is to keep a diary of all of the incidents of discrimination that you think that you have suffered and to record exactly who was involved and what happened. Try and obtain any witness evidence that you can from colleagues who have seen or heard things. Keep any letters, emails, minutes of meetings etc. that you think are relevant.

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Making an Employment Tribunal claim for religious or philosophical belief discrimination

If you want to make an Employment Tribunal claim for religious or philosophical belief discrimination then you must do the following:

  • Make your claim within three months of the last date of discrimination (this is also known as the “limitation date”). The last date of discrimination can often be difficult to pinpoint so you must be extremely careful that you do not fall outside of the three-month period
  • Since May 2015 you must also apply to ACAS for a certificate of early conciliation – if you fail to do so then you will not be able to bring your claim in the Employment Tribunal (unless very limited exceptions apply)
  • Gather enough evidence to allow you to prove your case in the Tribunal – this includes both documentary evidence and, if applicable, witness evidence.

It’s important to note that (unlike, for example, unfair dismissal claims) you don’t need to have worked for your employer for any particular length of time to make a claim for religious or philosophical belief discrimination – you have the right to do this from “day one”.

You may have to pay a fee to issue your claim for discrimination unless you qualify for a fee remission. You may also have to pay a fee for the Employment Tribunal hearing – again, you may not need to do so if you qualify for a fee remission.

Details of when you may qualify for a fee remission are available in the EX160A form on the Ministry of Justice website.

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Call Redmans today to discuss your employment law matter

Call Redmans on 020 3397 3603 or email us at enquiries@redmans.co.uk to discuss your employment law matter.

Alternatively, you can call Chris Hadrill, the partner responsible for the employment department, on 020 3397 3601 or email him at chadrill@redmans.co.uk.

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