CIPD - Race, religion and employment

Diversity and equality

Originally issued February 2004; latest revision October 2007

This factsheet gives introductory guidance. It:

provides an overview of the legal position
gives suggestions for good employment practices
includes the CIPD viewpoint.

Background

Race and religion are dealt with together in this factsheet for convenience. While race discrimination has been unlawful for 30 years or more, until recently, some members of religious groups could not bring a discrimination claim at all, while others could only attempt to bring what was in fact a religious discrimination claim by using the existing race discrimination legislation. That unsatisfactory legal position changed in 2003 and now entirely separate legislation governs the two types of discrimination. There are some similarities between the two, for example, the sub-division into types of discrimination as explained below.

The new Equality and Human Rights Commission, formed in October 2007, has replaced the previously separate commissions (including the Commission for Racial Equality) and now means that for the first time there is an official body working to combat discrimination based on religion or belief.

Race discrimination legislation

Discrimination on the grounds of race became unlawful with the introduction of the Race Relations Act 1976 (RRA). The Act makes it illegal to discriminate against someone on the grounds of nationality and colour, or ethnic, racial, or national group. The RRA contains provisions outside the field of employer/employee relations, but this factsheet focuses on the protection for employees and prospective employees who suffer discrimination in an employment context.

The Race Directive (2000/43/EC) and EC Equal Treatment Framework Directive (2000/78/EC) which aim to harmonise race equality legislation across the EU have also been incorporated into UK law. The Race Relations Act 1976 (Amendment) Regulations 2003 (SI 2003/1626), which implemented provisions of the Race Directive, cover discrimination on the grounds of ethnic, racial or national group, but exclude discrimination on the grounds of nationality and colour.

The key Acts and Statutory Instruments are:

The Race Relations Act 1976 (RRA)
The Race Relations (Formal Investigations) Regulations 1977 (SI 1977/841)
The Race Relations (Questions and Replies) Order 1977 (SI 1977/842)
The Race Relations (Complaints to Employment Tribunals)(Armed Forces) Regulations 1997 (SI 1997/2161)
The Race Relations (Amendment) Act 2000 (currently only applies to public bodies)
The Race Relations Act 1976 (General Statutory Duty) Order 2001 (SI 2001/3457)
The Race Relations Act 1976 (Amendment) Regulations 2003 (SI 2003/1626)
The Race Relations Act 1976 (Statutory Duties) Order 2004 (SI 2004/3125)
The Race Relations Act 1976 (General Statutory Duty) Order 2004 (SI 2004/3127)
The Race Relations Act 1976 (Statutory Duties) Order 2006 (SI 2006/2471)
The Race Relations Act 1976 (General Statutory Duty) Order 2006 (SI 2006/2470)
The Racial and Religious Hatred Act 2006
The Equality Act 2006.

A revised Statutory code of practice on racial equality in employment¹came into effect on 6 April 2006. Failure to follow the guidance it offers may be taken into account by the courts and tribunals.

CIPD members can find out more on the legal aspects of this topic from our Race discrimination FAQ on in the Employment Law at Work area of our website.

Go to our Race discrimination FAQ

Religious discrimination legislation

Discrimination on the grounds of religion and belief became unlawful in employment and vocational training on 2 December 2003 when the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660) came into force, implementing the EU Equal Treatment Framework Directive (2000/78/EC). Legislation already existed in Northern Ireland under the Fair Employment and Treatment Order 1998, and the Fair Employment Acts 1976 and 1989. Religion or belief was originally defined as meaning ‘any religion, religious belief or similar philosophical belief’, but the requirement for the philiospohical belief to be ‘similar’ to a religious belief is removed by the Equality Act 2006 so any religious or philosophical belief and a lack of such a belief will be covered. It will be for tribunals to decide what actually constitutes a ‘belief’. Obviously all the major religions are covered.

The principal legislation governing discrimination on the grounds of religion or belief in the UK is:

The Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660) - these apply across England, Scotland and Wales
The Employment Equality (Religion or Belief) (Amendment) Regulations 2004 (SI 2004/437)
Race Relations Act 1976 (RRA)
Employment Rights Act 1996 (especially sections 45 and 101 which protect shop and betting workers who do not wish to work on Sundays)
Independent Schools (Employment of Teachers in Schools with a Religious Character) Regulations 2003 (SI 2003/2037)
The Racial and Religious Hatred Act 2006
The Equality Act 2006
The Employment Equality (Sexual Orientation) (Religion or Belief) (Amendment) Regulations 2007 (SI 2007/2269).

The following aspects of the European Human Rights Convention are relevant:

Article 9 -guarantees freedom of religion
Article 14 -provides that rights and freedoms shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

It is likely that there will continue to be major developments in case law in this area through claims brought under the 2003 Regulations. A complainant may consider a race discrimination claim as well as or instead of a religious discrimination claim if they can show that their complaint related to their sex, race, colour or nationality rather than their religion alone.

CIPD members can find out more on the legal aspects of this topic from our Religious discrimination FAQ on in the Employment Law at Work area of our website.

Go to our Religious discrimination FAQ

Types of discrimination

The principles of race discrimination are virtually the same as discrimination on the grounds of religion or belief. There are four types of discrimination: direct, indirect, victimisation and harassment. Our Harassment at work factsheet has more information on this aspect. CIPD members can find out more on each of these types of discrimination from our Discrimination FAQ on in the Employment Law at Work area of our website.

Genuine Occupational Requirement

Where there is a Genuine Occupational Requirement (GOR) to employ a person of a particular race, ethnic or national origin, certain exceptions from the regulations are permitted covering selection, promotion and training, but the employer must be able to show that there is a genuine need taking account of the type of work, or the context in which the work is carried out.

Essentially, the same principles apply to religious discrimination, but in limited circumstances, exemptions from the Regulations may apply where an employer needs to employ a person of a particular religion. There is also an exemption for 'employers with an ethos based on a religion or belief'. This allows employers to place advertisements for jobs requiring a person to be of specific religion as long as it can be justified, which is difficult. Exemptions also apply for acts done in the interest of national security.

Good employment practices

Employers should screen policies and working practices to remove unfair discrimination and bias: this is key to effecting the creation of open workplace cultures where to be different is not a problem but an asset. Addressing issues related to race and religious belief, as part of a coherent diversity strategy is essential.

To change attitudes organisations should be encouraging good employment practices through managing equality issues, communication and training, and addressing specific areas.

Managing equality issues

Promote a culture of respect and dignity of all employees through effective implementation of policies and procedures. Be aware of competing and conflicting rights to balance the needs of the individual and the business.
Foster respect to realise different perspectives matter, and that diversity is everyone’s responsibility.
Make the business case for diversity – view this as an opportunity, not a threat.
Assign responsibility for driving diversity issues, perhaps to a head of diversity or a champion at board level and allocate appropriate resources.
Think inclusively when devising policies and procedures to offer different things to suit differing needs.
Continually monitor and evaluate policies and practices to ensure that they are working and bias free using cross-sections of the organisation. Complacency can undermine effectiveness.

Communication and training

Communicate to raise awareness regarding behaviours expected of employees, particularly line managers. Instigate training and follow-up workshops and campaigns in the workplace eg so that all are aware of differing religious practices. This may be through published policy statements but needs to gain engagement with employees – it is not sufficient to simply send an email saying that a policy is available.
Undertaking an equality audit gives the profile of the current workforce – but there needs to be careful communication about what is being asked, why and how it will be used for employees to feel confident in giving information. The Equality and Human Rights Commission have guidelines on ethnic categorisations to use.
Be seen to act on harassment and bullying issues.
Consider introducing a support network or other body to encourage networking.
Make equality policies and statements readily available.

Addressing specific areas

Ensure a fair and consistent recruitment process. Take care in drafting and placing advertisements to avoid discrimination and stereotyping through language and images. Be sensitive when arranging dates for interviews. Indicate if any genuine occupational requirements apply.
Operate transparent and consistent appraisal and performance management processes. Have clear career paths including promotion and training opportunities for all employees.
Revise policies and procedures, if appropriate, to ensure fairness and compliance with the law eg flexible working practices, dress code/uniforms, flexible canteen menus, time off for religious observance. Review terms and conditions ie banking of leave.
Treat personal information sensitively and confidentially, and reassure how this information will be used.

On specific issues, our many factsheets will provide further guidance.

Go to a list of our factsheets

CIPD viewpoint

Race discrimination has been outlawed for nearly thirty years, though discrimination law on religion was only introduced into British law in December 2003. But employers shouldn’t be relying on legal requirements alone. Effective organisations will have diverse workforces and embrace good employment practices regardless of race or religious beliefs. Different views, perspectives and ideas are vital.

Employers must make sure that prejudice and stereotyping on the basis of people's ethnic origins and religious beliefs doesn’t result in unfair decisions about jobs and training. Failure could lead to legal costs, lost productivity and damaged reputation when the law is broken, but also to lost opportunities to gain business advantage. Increasing evidence points to the importance of managing diversity to beat market competition in the delivery of value to a diverse customer base.

CIPD believes that managing diversity successfully is key to good people management. Hard facts show that people can make the difference between good and poor business performance. But everyone is different and unless employers take diversity seriously they will fail to recruit, retain and engage the commitment of the talent needed to sustain and improve business performance. CIPD recruitment surveys² show an increase in the development of innovative recruitment and retention strategies and working practices to attract a more diverse workforce. Employers who sit on the sidelines regarding diversity will quickly become less attractive to existing and prospective employees.

Useful contacts

References

COMMISSION FOR RACIAL EQUALITY. (2005) Statutory code of practice on racial equality in employment. London: CRE. Available at: http://www.equalityhumanrights.com/Documents/Race/
Employment/Code%20of%20practice%20on%20racial%20equality%20in%20employment.pdf
CIPD publishes an annual recruitment survey. The current and earlier surveys are available at: http://www.cipd.co.uk/onlineinfodocuments/surveys.htm

Race, religion and employment