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Children’s Secretary Ed Balls recently threatened to ban extremist teachers from Britain’s schools following a row over claims that two independent Muslim schools were directing public money to an Islamist group, Hizb-ut-Tahir.Anyone found to be inciting hatred against someone else on the grounds of their religion could be charged under the Racial and Religious Hatred Act 2006. But if local authorities and school governors decide to dismiss teachers who preach racial and religious hatred, they are likely to be sued by those sacked on the grounds of religious discrimination and breach of the human right to hold and manifest religious views. However, case law indicates that employers will probably prevail if the employees’ views offend co-workers or customers/service users and breach internal equality policies. Where employees have been dismissed or disciplined for proselytising or expressing religious views in the workplace contrary to workplace practices, the courts have consistently held it was because of the employee’s conduct rather than the employer’s discriminatory treatment on the grounds of their religion.
Recent cases In the case of Apelogun-Gabriels v London Borough of Lambeth (case ref ET/2301976/05), a committed Christian, who believed he needed to spread God’s word, distributed sections from the Bible to work colleagues that commented on homosexuality being a sin. This conduct was in breach of the employer’s equal opportunities policy. His dismissal was held to be on the grounds of distributing homophobic literature that resulted in the harassment of gay colleagues, not because of his religion. In the case of Chondol v Liverpool City Council (case ref UKEAT/0298/08) a social worker, working with vulnerable adults, gave a Bible to a client and asked another whether he believed in God. He was dismissed for failing to observe the council’s policy prohibiting the overt promotion of religious beliefs. The reason for dismissal was held to be his conduct and not his religion. The case of London Borough of Islington v Ladele (case ref UKEAT/0453/08) concerned a Christian registrar who refused to officiate at civil partnerships between gay couples. She was disciplined and threatened with dismissal. The EAT decided this treatment was not because of her religious beliefs but because of her conduct, namely her failure to carry out core duties including officiating over legal ceremonies. The EAT held that, having accepted that the aim of “providing the service on a non-discriminatory basis” was legitimate, it must follow that the local authority was entitled to require all registrars to perform the full range of services. In the case of McClintock v Department of Constitutional Affairs (case ref UKEAT/0223/07) a Christian magistrate did not wish to determine same-sex adoption cases. The Department of Constitutional Affairs refused to excuse him from hearing those cases. The EAT held that the magistrate’s conduct breached his oath to serve faithfully and obey instructions in the performance of his function. The employer’s treatment was, therefore, not discriminatory on the grounds of his religion. Recently, in the case of McFarlane v Relate Avon Ltd, the EAT ruled on the dismissal of a Christian relationship counsellor who provided confidential sex therapy and relationship counselling for couples. He had refused to work with gay couples if it would involve promoting homosexual activity. His dismissal was held not to be on the grounds of his religion but his conduct, which breached the counselling service’s code of ethics that required him to respect the dignity of clients on issues such as sexual orientation.
Human rightsSo, religious discrimination laws are unlikely to protect any extremist teachers if Ed Balls decides to ban them – but human rights laws won’t provide much help either. Although the right to hold religious (including extremist) views is absolute, the right to manifest them can be restricted where necessary in the interests of public safety, to protect public order, health or morals, or to protect the rights and freedoms of others. The government could argue that inciting racial and religious hatred is an infringement of the rights and freedoms of others in a democratic society. Employers could take a similar approach, provided that their response is necessary and proportionate. They need to strike a balance between the rights of the employees concerned and the workforce affected by the manifestation of religious views.Key points• Employees who hold religious views are protected from workplace discrimination primarily by the Employment Equality (Religion or Belief) Regulations 2003, the Human Rights Act 1998 and the Equality Act 2006.• Where an employee’s manifestation of those religious beliefs discriminate against and harass other protected groups, the employer may be justified in taking action to prevent such conduct.• Clear equal opportunity and anti-harassment policies prohibiting unlawful discrimination against colleagues, clients and third parties connected with the workplace, should give the employer the means to address conflicts between religious beliefs and the rights of others in the workplace fairly and lawfully. • Policies such as those detailed above should not be blindly applied. Employers should consider the rights of all employees concerned, including those whose religious beliefs have triggered the concerns, and assess whether the action they plan to take is proportionate and necessary in the circumstances. • A written equality policy is not enough in itself. There should also be workforce training, policy monitoring and regular reinforcement of the principles by senior management.