In Great Britain, legislation against discrimination on the grounds of religion and belief is contained in the Equality Act 2010. The situation in Northern Ireland is covered on our factsheet on the employment law differences between Northern Ireland and Great Britain.
The Equality and Human Rights Commission (EHRC) has published guidance on religious discrimination and the Equality Act including a Code of practice on employment. Whilst not legally binding documents, the codes give important guidance on good practice and failure to follow them may be taken into account by tribunals or courts. CIPD members can find out more in our Religion and belief discrimination Q&As.
Types of discrimination
Within the Equality Act 2010 there are a number of different types of discrimination. These apply to the protected characteristics which includes religion and belief.
Direct discrimination
This applies to all protected characteristics. It’s treating someone less favourably than another person because of a protected characteristic that they have. For example, it’s refusing to employ an individual because they are a Sikh.
Indirect discrimination
Indirect discrimination occurs when:
- a provision, criterion or practice is applied to all, and:
- it puts a group with a protected characteristic at a disadvantage when compared with another group
- an individual is put at a disadvantage
- the employer cannot show it to be a proportionate means of achieving a legitimate aim.
For example, if a uniform policy requires all individuals to dress in exactly the same way without modification and this means that some people can’t wear an item of clothing they regard as part of their faith.This would be indirect discrimination unless the employer could show that the uniform requirement was justified.
Associative discrimination
This is treating someone less favourably because they associate with an individual who has a protected characteristic. For example, treating someone less favourably because they spend their spare time socialising with people of a certain religious group, even though they don’t hold the same religious beliefs.
Perceptive discrimination
This is treating someone less favourably because it’s perceived that they have a protected characteristic, whether they do or not. For example, not recruiting someone because it’s thought they have a certain religious belief when they don’t.
Victimisation
Victimisation occurs when someone is treated less favourably because they’ve made or supported a complaint, or raised a grievance under the Equality Act 2010. It also applies if it’s thought that they have made a complaint. A comparator isn’t required for a claim of victimisation. Post-employment victimisation can occur - for example, refusing to give a reference to someone who had made a complaint under the Equality Act 2010 - although the Act has some grey areas concerning post-employment victimisation.
Harassment
Harassment is ‘unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual’.
There’s no longer any specific legislation making employers liable for harassment that comes from a third party (for example, a customer). However an employer can still be liable as a result of numerous other legal duties, for example breach of contract, direct discrimination and under the Protection from Harassment Act 1997. This, and good practice, mean that employers should continue to take steps to protect employees from all forms of harassment.
Find out more in our factsheet on workplace bullying and harassment.
Occupational Requirement
Very unusually, there may be an Occupational Requirement to employ a person of a particular religion. If so, certain exceptions from the law are permitted covering selection, promotion and training. The employer must be able to show that there’s a genuine need, taking account of the type of work. For example, an NHS Trust may seek a Roman Catholic healthcare chaplain who can administer end of life care prayers to Roman Catholic patients, whereas it would not be acceptable to specify that a hospital cleaner must be of the Catholic faith.
There’s 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 objectively justified, which can be difficult to evidence robustly. The religious requirement must be crucial to the post.
In the retail and betting business only, there is a special right for employees to opt out of Sunday working by giving their employer three months’ written notice. Workers employed only to work on Sundays cannot opt out and agency staff are not included.
Positive action
Employers can take positive action, for example to address under-representation or other forms of disadvantage within the workforce. The provisions are complex and must be handled very carefully. Different provisions apply concerning positive action relating to recruitment and promotion. See guidance from the EHRC.