A summary of the law on religion or belief

The act covers all forms of discrimination in the workplace, including; recruitment, terms and conditions, promotions, transfers, dismissals and training or any other detrimental treatment because of religion or philosophical belief.

Although the concept of religion is not easily defined, in this context it means any religion, including Buddhism, Baha’i faith, Hinduism, Islam, Jainism, Judaism, Rastafarianism and Sikhism. It also includes a lack of religion such as atheism.

In terms of philosophical belief, case law has held that the belief should have a certain level of cogency, seriousness, cohesion and importance which is worthy of respect in a democratic society, such as humanism.

Religious hate crimes are a criminal matter and are dealt with by the police.

The act covers all forms of employment and applies to apprentices, those working under a contract of employment and the self-employed working under a contract personally to do the work. It also applies to applicants for jobs.

Ex-employees can also make a claim against a former employer if they are complaining about something that was closely connected to their employment.

The employer is generally liable for acts of discrimination, harassment and victimisation in the workplace. However, individual employees may also be liable, for example, if they have subjected a colleague to harassment related to religion or belief.

Discrimination because of someone’s religion or belief can arise in relation to:

• The arrangements made for deciding who should be offered employment such as shortlisting and interviews
• The terms upon which employment is offered
• Refusing or deliberately omitting to offer employment
• Accessing opportunities for promotion, transfer, training or other benefits, facilities or services are offered
• Dismissal or any other detriment.

Public bodies such as local government, the NHS and those carrying out public functions are under a duty to consider equality when making day-to-day decisions both in terms of service delivery and employment. This consists of a general duty and specific duties.

The general duty has three aims and requires public bodies to have due regard to the need to:

• Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the act
• Advance equality of opportunity between people from different groups
• Foster good relations between people from different groups.

The specific duties are designed to help public bodies comply with the general duty.

The specific duties for devolved public authorities are different in England, Wales and Scotland. Trade unions should therefore check that the employer is complying with the relevant specific duties.

The act allows employers to treat someone with a particular religion more favourably during the process of recruitment and promotion.

If they think that the person with a particular religion has a reasonable chance of being disadvantaged because of that characteristic (or there are fewer people with a particular protected characteristic employed), they can choose that person over someone who does not have the protected characteristic provided that:

• The person is as qualified as the other candidate
• The employer does not have a recruitment or promotion policy of treating people of the underrepresented group more favourably
• The more favourable treatment is a proportionate means of achieving a legitimate aim (the legitimate aim being encouraging participation and overcoming disadvantage)

The more favourable treatment must be aimed at encouraging participation of those with a protected characteristic who are underrepresented or put at a disadvantage.

These provisions are voluntary. A worker cannot bring a claim because the employer did not apply positive action during the recruitment or promotion process, although they may still be able to bring a claim if they were discriminated against during it.

Direct discrimination

Direct discrimination occurs when an employer treats someone less favourably than someone else (or instructs someone to directly discriminate against them), because of religion or belief.

In order to determine whether someone is directly discriminated against, a comparison has to be made with someone who is of a different religion or belief but whose circumstances are the same or not materially different.

The definition is wide enough to cover those who are also discriminated against because they are perceived to be of a particular religion or belief or because they are associated with someone of a particular religion or belief.

Examples of direct discrimination include:

• Someone who is not promoted because they are a Rastafarian
• Someone who is subject to harassment because of their association with another person of a particular religion
• Someone who is prevented from attending training because they are thought to be a Muslim.

Indirect discrimination

Indirect discrimination arises where an employer applies a provision, criterion or practice (PCP) which puts those of a particular religion or belief at a particular disadvantage compared to those who do not share the same religion or belief and which the employer cannot justify.

Employers can only justify indirect discrimination if they can show that it was “a proportionate means of achieving a legitimate aim”. This essentially requires achieving an objective assessment of the needs of the business as compared to the discriminatory effect on the worker.

Examples of indirect discrimination might include a requirement for a hair stylist to display their hair at work or for an employee to work a particular shift system.

Harassment

This occurs when one person subjects someone else to unwanted conduct related to religion or belief that has the purpose or effect of violating a person’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment.

The definition of harassment also applies to those subject to unwanted conduct because of another person’s religion or belief. So, for example, a worker who is subject to offensive comments about their daughter who is a Muslim will be protected under the act.

Unwanted conduct includes the spoken or written word, jokes, graffiti or other behaviour.

In determining whether the conduct amounts to harassment, the tribunal will take into account the perception of that person and whether it was reasonable for them to consider the comments or behaviour to be offensive.

Victimisation

This occurs when an employer subjects a person to a detriment because they have done or may do a protected act.

A protected act includes:

• Bringing proceedings under the act or previous discrimination legislation
• Making allegations of a breach of the act or previous discrimination legislation
• Giving evidence or information in connection with proceedings that someone else has brought in relation to the act
• Doing anything else such as raising a grievance or giving evidence in someone else’s grievance in relation to the act.

The person complaining of victimisation does not need to show they are of a particular religion or belief in order to bring a claim. However, they do have to have acted in good faith when doing a protected act. If it transpires that someone has knowingly made a false allegation, it will not be considered as a legitimate protected act.

There are a number of exceptions to the principle that people should not be discriminated against because of their religion or belief. Two of the most-commonly argued exceptions are:

• The general occupational requirement 
• The religious ethos occupational requirement.

Occupational requirement 

Employers may rely on this exception if they can show that there is an occupational requirement to do with the nature of the job which means they need to recruit someone of a certain religion or belief. However, the employer must also show that the requirement is a proportionate means of achieving a legitimate aim.

The occupational requirement exception applies only to direct discrimination in recruitment, promotion, transfer and training and not to the way in which an employer affords access to benefits, facilities or services.

In practice the occupational requirement exception will only apply in very limited circumstances.

Religious ethos 

The act also says that employers whose ethos is based on religion or belief can rely on the occupational requirement exception provided the employer can show that being of a particular religion or belief is an occupational requirement.

The exception will apply provided that the employer can show that its application is a proportionate means of achieving a legitimate aim, and that the person concerned does not meet the requirement (or the employer has reasonable grounds for believing that they don’t).

In general they can, although they have to be careful that a dress code does not give rise to claims of unlawful indirect discrimination. Employers cannot, however, impose a code if it seems to discriminate against someone on the grounds of their religion or belief, unless they can justify the requirement.

Take the case of Azmi v Kirklees Metropolitan Borough Council. Mrs Azmi claimed indirect discrimination when she was not allowed to wear a veil in class. Although this put those of Mrs Azmi’s belief at a disadvantage, the employment appeal tribunal held that the requirement not to wear clothing that covered the face was justified as a proportionate means of achieving the legitimate aim of raising the educational attainment of schoolchildren.

If the employer can show that the refusal is a proportionate means of achieving a legitimate aim then, as in this case, the refusal may be justifiable. However, there are limits. For example, the fact a client or customer refuses to be served by a woman wearing Islamic headdress will not be a legitimate aim.

If an employee wants to take a day off in observance of a religious holiday or festival, employers should try to accommodate this when it does not interfere with their business. Otherwise, a refusal may amount to unjustified indirect discrimination.

All organisations (big and small) should have clear procedures in place for handling leave requests, which should be applied equally to all staff. For their part, staff should give as much notice as possible of a holiday request and be aware that the employer may not always be able to accommodate it.

There is no explicit requirement under the act to provide facilities such as a prayer room for workers who want to practise their religion.

However, if employees ask for a quiet place to pray and the premises can accommodate the request without adversely impacting on the business or other staff, then it is hard to see how a refusal by an employer could be justified.

Where an employer complains about the time that workers take in order to practise their religion they should ensure they are treated no less favourably than other workers who take breaks for other reasons.

A person complaining of discrimination has to prove, on the balance of probabilities, that their employer discriminated against them because of religion or belief.

Tribunals are aware that it can be difficult for claimants to provide clear evidence of discrimination.

As a result, tribunals often have to decide cases on the basis of whether an inference of discrimination should be made from the primary facts. Those inferences are governed by section 136 of the Equality Act 2010, which has a two-stage process of proving discrimination.

• At the first stage, the tribunal must consider whether there are “facts from which the court could decide, in the absence of any other explanation, that a person has been discriminated against"
• At the second stage, a finding of discrimination could be rejected if the employer can show that there is a wholly non-discriminatory explanation for the treatment.

Workers can use the ACAS (Advisory, Conciliation and Arbitration Service) guidance ‘asking and responding to questions of discrimination in the workplace’ to request information from the employer which is relevant to a potential claim of discrimination.

Although the employer is not under a legal obligation to respond if the case proceeds to an employment tribunal hearing, an employment tribunal may draw an inference if the employer does not respond or its replies are evasive.

Early conciliation is the requirement to contact ACAS before lodging an employment tribunal claim. This can be done over the phone or by completing an early conciliation notification form at www.acas.org.uk.

Early conciliation must begin before the time limit for lodging a tribunal claim expires. It usually lasts for up to four weeks, after which a conciliation certificate is issued.

The early conciliation certificate number must be put on the employment tribunal claim form (ET1).

If it is not, the claim form will be rejected and the claim may go out of time.

Claims must be brought within three months less one day of the act of discrimination that the person is complaining about. If the discrimination is in a form which continues for example, being excluded from a benefit or a continuing course of harassment, then the three month less one day time limit runs from the last act of discrimination.

In exceptional circumstances, the three month time limit may be extended if a tribunal believes that it is just and equitable to do so.

There are three remedies available to a tribunal.

Declaration

A declaration is a statement of the rights at the end of a claim, for instance that a worker has been subject to direct discrimination.

Compensation

Compensation can be awarded for injury to feelings and financial losses, if there are any. This will vary from case to case and depends on the individual circumstances. There is no statutory limit to the amount of compensation which can include, loss of earnings (past and future), loss of pension, interest and any other outlays associated with the discrimination.

The amount of compensation for injury to feelings can vary enormously. Generally injury to feelings fall into one of three bands: lower, middle and upper, depending on the severity of the discrimination.

Aggravated damages (not applicable in Scotland) can also be awarded if the tribunal is satisfied that the employer has behaved in a high-handed, malicious or insulting way which has aggravated the injury to the claimant’s feelings.

Claimants can also ask for compensation for personal injury if they have been seriously affected by the discrimination, particularly in harassment cases, which can lead to illness and depression. If so, claimants need to produce a medical report to support their claim.

Recommendations

The tribunal can make recommendations for the purpose of preventing or reducing the effect of the discrimination on the claimant of any matters to which the proceedings relate. This means that recommendations will not normally be made if the claimant has resigned or has been dismissed, which is often the case.

An example would be a recommendation to provide equal opportunities training to the person who discriminated against the individual bringing the claim.