Explore the UK legal position and main issues employers face when dealing with religious discrimination in the workplace.
Here we list a selection of key cases, reported since 2009, on religion and belief discrimination in the workplace, providing a summary of the decision and implications for employers.
These cases should be read alongside our Religious discrimination Q&As.
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COVID-19 case law
X v Y | Employment Tribunal | 13 December 2021
Issue: whether a fear of COVID-19 is a philosophical belief under the Equality Act 2010
The claimant decided not to return to her workplace on the grounds of health and safety. She was concerned about COVID-19 and was worried about catching it and passing it on to her partner, who was at high risk of serious illness. Her employer said if she did not return to work, she would no longer be paid. As part of her claim, a preliminary hearing was held to determine whether ‘A fear of catching COVID-19 and a need to protect myself and others’ was a protected philosophical belief under the Equality Act 2010.
The Employment Judge accepted the employee had a genuine concern, but it was not a belief that was protected by the Equality Act. This was because it was a reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat. So, although only a tribunal level decision and not binding on other courts, the decision is one of the first indications that a fear of contracting COVID-19 is unlikely to be a philosophical belief on which a discrimination claim can be based.
The judge did say that the fears about the harm being caused by COVID-19 were weighty and substantial and that the test of cogency, seriousness, cohesion, and importance was met. The decision makes similar claims based on belief less likely to succeed but employers should remember that this claim was only addressing the issue of philosophical belief, and different discrimination claims may arise in connection with COVID-19, such as disability discrimination claims.
Forstater v CGD Europe and others| Employment Appeal Tribunal | 10 June 2021
Issue: a belief that biological sex is not to be conflated with gender identity is a protected belief
A researcher and writer working for a public policy think tank under a consultancy agreement was active on social media on gender recognition issues, particularly self-identification of gender. She expressed the belief there are only two genders, male and female. Also that sex is biologically immutable and that it is not possible ever to change sex. She did not accept that a trans woman is a woman or that a trans man is a man.
Staff where she worked raised concerns about her social media posts and her contract was not renewed. She said this was because of her opinions on gender and brought a discrimination claim.
The tribunal, and then the EAT, had to decide whether Maya Forstater’s belief could be protected under the Equality Act 2010. One of the key issues was whether her belief was worthy of respect in a democratic society given that it conflicted with the fundamental rights of trans people.
The EAT held that Forstater’s belief that sex is immutable and binary was protected by the Equality Act even though there was potential for this to result in the harassment of trans people in some circumstances. Her belief also fell within the protection of Article 9 of the European Convention on Human Rights (ECHR).
The EAT decided that a wide range of beliefs are protected by the Act and only needs to meet a fairly low threshold. A court does not have to enquire into the validity of a belief as the state and the courts should remain neutral between competing beliefs. The law should encourage opposing groups to tolerate one another without judging if one belief is more acceptable than another belief.
Therefore, while Forstater’s belief would be offensive to trans people and those who support them, the potential for causing offence does not necessarily exclude that belief from protection. In this case, some respected academics also believe sex is immutable and binary.
This judgment does not mean that employers can ignore the rights of trans people, who also have protection against discrimination and harassment under the Equality Act and the ECHR. However people who are gender-critical, including employees who believe that biological sex is immutable and should not be conflated with gender identity, are also protected.
Employers should remember that philosophical beliefs under s10 of the Equality Act 2010 must comply with the Grainger v Nicholson case criteria, meaning the belief must:
- be genuine
- not an opinion or viewpoint
- relate to a weighty and substantial aspect of human life and behaviour
- be of a certain level of cogency, seriousness, cohesion and importance
- worthy of respect in a democratic society
- not be incompatible with human dignity or conflict with the fundamental rights of others.
Although a philosophical belief about the binary nature of gender could seem to conflict with trans rights, the kind of beliefs that are not protected are beliefs akin to Nazism. Those could be excluded from the protection of rights under the ECHR. Other beliefs that are offensive, shocking or even disturbing, even those which are like less serious hate speech, may be protected but their manifestation may not be protected.
The Equality Act must be read with Articles 9 and 10 of the European Convention on Human Rights (freedom of thought, conscience and religion and freedom of expression). These articles place high importance on diversity of thought, belief and expression in a liberal democracy.
The case does not mean that employers can stop providing a safe environment for trans people because organisations remain liable for acts of harassment and discrimination against trans people committed in the course of employment. Neither does the case express any view on the merits of any transgender prejudice or favouritism. Any gender-critical staff should not call a trans person by the opposite gender to their identification. Depending on the facts, any conduct amounting to harassment or discrimination within the meaning of Equality Act will be actionable in a tribunal.
Page v The Lord Chancellor | Court of Appeal | February 2021
EWCA Civ 254
Issue: balancing religious belief protection with democratic principles
This claim dealt with direct, indirect discrimination and victimisation claims, and claims made under Article 9 and 10 of the Human Rights Act 1998 (right to family life and freedom of expression).
Page was a Christian magistrate dealing with family law matters. He refused to sanction a same sex adoption as part of his caseload. He was also on an NHS Board. He was removed from the magistracy and also from the Board. He had said that he would never make such decisions had he continued to be a judge and also went on TV and talked to the press about his views and, when asked to stop doing so, refused.
All Page's claims failed. In reaching its decision, the CA emphasised that the reasons were not to do with his protected characteristic – his Christian religion – but that he failed the Grainger test in a number of ways and also failed to prove the reason for his treatment was related to his religion. The dismissals occurred because he could not continue to dispense justice fairly as a magistrate and his views would hamper the NHS’s stated commitment to serving the gay community. He was not victimised for publicising this matter but because his actions prevented the NHS Trust from acting in accordance with its principles.
Implications for employers
This case illustrates two important principles:
- It is always necessary to not only check if there is a protected characteristic and what it is, but also to investigate what the reason was for the treatment complained of and whether it was because of the person’s protected characteristic.
- It is often the case that a religion or belief can be protected but the way in which it is manifested does not accord with the democratic principles in society and so claims will be lost where manifestations are found to be objectionable.
The case also shows that in this type of case, the courts have been drawn into making judgments about what is acceptable in a democratic society in order to reach a decision.
Gray v Mulberry Company (Design) Ltd | EAT | July 2018
 UKEAT 0040/17/1807
Issue: Religious and belief discrimination – philosophical belief
An employee at the well-known fashion house Mulberry refused to sign a standard contract clause assigning copyright in her work to her employer. She was writing a novel and screenplay in her own time and was worried about losing the copyright to these. Attempts to mutually agree on amended wording failed, and she was eventually dismissed. She brought claims for direct and indirect discrimination on the grounds of philosophical belief.
The issue concerned whether a belief in the 'human or moral right to own the copyright and moral rights of creative works and outputs’ can be a philosophical belief and be protected.
The EAT held the belief lacked sufficient clarity or cogency to qualify as a belief under the Equality Act 2010.
The EAT said that there could be no indirect discrimination anyway because Gray was the only person known to hold such a belief. Indirect discrimination has to show a potentially disadvantaged group, and here there was no such group. The case will be reheard in a further appeal to the Court of Appeal.
Implications for employers.
In order to be protected under the Equality Act 2010, religious and 'philosophical’ beliefs must be more than an opinion. The belief must:
- be genuinely held
- concern a substantial aspect of human life
- be behaviour worthy of respect in a democratic society.
The belief must also be part of a cogent or cohesive belief pattern that operates as a philosophical ‘touchstone’, such as a belief in climate change. Here, a belief in the moral rights to creative output was concerned more with commercial profit and with the benefits of creative activities, rather than being part of a deeply rooted philosophy.
Employers should always take employees’ beliefs seriously and err on the side of treating all employees' beliefs with care. However, some beliefs closely linked to commercial profit may not qualify for protection. A belief does not have to be religious to be protected against discrimination in the UK, but it does have to have a philosophical dimension.
Bougnaoui v Micropole SA | European Court of Justice | 14 March 2017
(Case C‑188/15 14 March 2017, CJEU)
Is banning the wearing of any visible religious, political or philosophical symbols at work direct discrimination?
A French Muslim engineer was instructed by her employer to remove her headscarf while visiting a customer who had complained and asked that she remove her headscarf in the future. The employer said it had to protect its commercial interests, and that it had a ‘neutral appearance’ dress code which was a genuine and determining occupational requirement of the job. When the employee refused to remove her headscarf, she was dismissed. She challenged the employer’s decision, and the French court hearing the case referred the matter to the Court of Justice of the European Union (CJEU).
The CJEU agreed with the Advocate General (AG) that the ban could not be a genuine occupational requirement. The treatment was direct discrimination on the grounds of religion or belief and the court therefore rejected the employer’s ‘commercial interests’ argument. The employer’s right of freedom to conduct a business was restricted by the need to protect the rights of others, including not being discriminated against. The AG also rejected the occupational requirement argument; there was no evidence to suggest the engineer was prevented from performing her role because she wore a headscarf.
However, this decision appears to conflict with the decision in a similar case referred by a Belgian court, Achbita v G4S Secure Solutions NV. The court was more sympathetic towards the employer in the Achbita case and towards the employee in Bougnaoui (see below for a full report of this case).
The case will now return to the French court for a final decision.
Implications for employers
UK law is closer to the judgment in this case than in the Achbita case, where the judgment was less tolerant of religious clothing at work.
The safest approach for UK employers is to follow the EHRC and Acas guidance on religion and belief in the workplace. This suggests flexibility and reasonableness concerning religious clothing. The guiding principle for employers should always be based around the impact of dress on the employee’s ability to do his or her job.
Under the UK Equality Act 2010, unjustifiable dress policies and rules may constitute indirect discrimination, which must be justified. If a dress code contains a provision which puts a particular religion or belief at a disadvantage, it will be discrimination unless the dress requirement can be shown to be ‘a proportionate means of achieving a legitimate aim’. This could include health and safety or security issues.
The trend in some EU case law currently appears to take a slightly less flexible approach and suggests that a dress code banning all employees from wearing any visible religious, political or philosophical symbols at work may be permissible. Employers potentially have a legal argument under EU law, based on Achbita, that provided all employees are subjected to a ban in the same way, and it is applied to all visible religious, philosophical and political symbols, then there is no direct discrimination.
However, it is a highly risky strategy for UK employers to take, where case law has tended to favour the right of Muslim women to dress in accordance with their religious beliefs, unless health and safety is an issue. Employers should continue to exercise caution in relation to dress codes that restrict employees’ rights to wear religious clothing or jewellery. Any dress code must be objectively justified and a careful balance must be reached between the reason for any dress code and the disadvantage likely to be suffered by the employee.
For more information on Achbita v G4S Secure Solutions NV see our report of the case below.
Achbita v G4S Secure Solutions NV | European Court of Justice | 14 March 2017
(Case C-157/15, 14 March 2017, CJEU)
Is banning the wearing of any visible religious, political or philosophical symbols at work direct discrimination?
A branch of the G4S security company in Belgium had a rule that employees should wear no visible religious, political or philosophical symbols at work. The company employed a Muslim receptionist who, after three years of not wearing the hijab, chose to wear one. She was dismissed after refusing to comply with the employer's rule and brought claims for direct and indirect discrimination and wrongful dismissal in the Belgian courts. The European Court of Justice (CJEU) was asked to determine whether banning Muslim headscarves at work constituted direct discrimination, contrary to the Equal Treatment Framework Directive (2000/78/EC).
The Advocate General (AG) gave an opinion on this case in May 2016 and the CJEU has now agreed with that opinion in deciding that the ban on religious dress was not directly discriminatory. The court said that provided the ban was based on a general rule prohibiting visible political, philosophical and religious symbols in the workplace, and not on stereotypes or prejudice, there would be no direct religious discrimination. This was because the ban treated all employees in the same way and did not introduce different treatment based on religion or belief.
Although the CJEU was only asked by the Belgian court to consider the issue of direct discrimination, both the AG and the court expressed the view that a ban like this one could constitute indirect discrimination if the apparently neutral obligation put those of a particular religion or belief at a particular disadvantage.
The employer may be able to objectively justify such a dress code if the organisation could show:
- a legitimate aim (which in this case was neutrality to customers or clients); and
- that the way of achieving that aim is both appropriate and proportionate.
Although the case will now have to return to the national Belgian court for a final decision, the AG’s opinion was that the requirement for a neutral dress code could be both legitimate and proportionate. In reaching this decision, the AG distinguished sex, skin colour, ethnic origin, sexual orientation, age or disability – things over which employees have no choice – from the practice of religion, where they did have a choice. She thought that because of this, employees could be expected to moderate the exercise of their religion at work, in relation to religious practices, behaviour or clothing.
However, this decision appears to conflict with a similar case referred by a French court, Bougnaoui v Micropole SA, in which the court is more sympathetic towards the employee and less understanding of the employer (see full case report above). UK case law is closer to the Bougnaoui judgment than the decision in Achbita.
Implications for employers
In this case, EU law appears to be less tolerant of religious clothing at work than UK law. The AG concluded that wearing a headscarf may mean the employer’s freedom to conduct a business could be adversely affected. But the assumptions about what those following a particular religion should do to participate in working life are surprising.
Both the CJEU and the AG thought that a ban may not be discriminatory or, if it is, it may be justifiable. This suggests employers can ban a Muslim employee from wearing an Islamic headscarf provided that the ban is founded on a general company rule of religious neutrality. Employers, therefore, have a potential legal argument under EU law that as long as all employees are subjected to a ban in the same way, and it is applied to all visible religious, philosophical and political symbols, then there is no direct discrimination.
However, it is a highly risky strategy to adopt, not least because UK and EU cases have reached different conclusions. The trend in the UK is to favour the right of Muslim women to dress in accordance with their religious beliefs, unless there are health and safety issues.
Under the Equality Act 2010, unjustifiable dress codes may constitute indirect discrimination, which must be justified. If a dress code contains a generally applied provision which puts those of a particular religion at a disadvantage, it will be discrimination unless the requirement is proven to be ‘a proportionate means of achieving a legitimate aim’. Employers in the UK should continue to exercise caution when restricting employees’ rights to wear religious clothing or jewellery. A careful balance must be reached between the reason for a dress code and the disadvantage likely to be suffered by the employee.
The safest approach for UK employers is to follow the EHRC and Acas guidance on religion and belief in the workplace, which recommends flexibility and reasonableness. The guiding principle should be the impact of the clothing on employees’ ability to do their job.
For more information on Bougnaoui v Micropole SA, see full case report above.
Henderson v GMB | Employment Appeal Tribunal | 13 Mar 2015
(unreported, UKEAT/0073/14 13 March 2015, EAT)
Issue: Discrimination - political belief
A regional organiser in the General Municipal Boilermakers Union's (GMB) London region was dismissed for gross misconduct following a series of incidents concerning a strike and picket lines at the House of Commons to protest against government plans to cut public pensions.
Part of the claimant’s job involved political activities in co-ordination with the Labour Party which the GMB has strong links to. The strike vote included a provision stating Labour MPs should not cross the picket line and afterwards GMB received complaints from the Labour Party about the claimant publicising the strike. The claimant believed the picket line incident was a catalyst which resulted in him receiving unfavourable treatment and receiving unfounded complaints about his work. The claimant, who was off work sick, raised a grievance with his manager for refusing a request he had made to work outside of London during the Olympics. He also suggested that the GMB and the Labour Party had colluded against him.
The claimant refused to attend any meetings to address either his grievance or the disciplinary action. Despite his absence an investigation was carried out and he was dismissed for gross misconduct on the grounds that he was unmanageable. He subsequently brought claims for unfair dismissal, wrongful dismissal, and victimisation, direct discrimination and harassment as a result of his political views. Eventually some aspects reached the Employment Appeal Tribunal (EAT). The EAT confirmed that a person’s political belief was capable of being a protected characteristic. In addition it was possible for an employee to be fairly dismissed, but discriminated against, at the same time, providing there is satisfactory evidence to support both conclusions.
However on the facts of this case there was no proper evidential or factual basis on which to conclude that the claimant had been treated less favourably because of his beliefs. He had not been dismissed or unlawfully harassed on grounds of his beliefs and the dismissal had been fair.
Implications for employers
- Section 10 Equality Act 2010 (Religion or belief) protects belief in any religious or philosophical belief and a reference to belief and a lack of belief.
- Although it was not the original intention that the legislation should protect party-political beliefs, it appears that left wing democratic socialism and other political philosophy is capable of being a philosophical belief.
- In this case there was a lack of evidence that the claimant’s beliefs caused any discriminatory treatment or harassment. However the EAT clarified that philosophical or political beliefs may be just as fundamental to a person’s individuality and daily life as religious beliefs.
- Employers must avoid discriminating against political belief as it can be a protected characteristic for the purposes of the Equality Act 2010.
- Employees can be fairly dismissed and discriminated against at the same time, provided there is proper evidence to support both conclusions.
Olivier v Department of Work and Pensions | Employment Tribunal | 18 Nov 2013
(unreported, ET/1701407/2013, 18 November 2013, ET)
Issue: Belief discrimination
An employee was dismissed from his role as a benefits adviser in a jobcentre for gross misconduct. Jobcentre employees are employed by the Department of Work and Pensions (DWP). The allegations of gross misconduct were that he was elected as a Labour councillor without permission and had written a letter, published in a local newspaper, criticising the government's benefits policy. He had been an active member of the Labour Party for over 30 years and believed that the Party enshrined a set of core beliefs. He described his belief system as 'democratic socialism' and explained that his strong beliefs influenced how he conducted his everyday life. He had an interest in, the history and moral tenets of the Labour Party and he said his belief in 'democratic socialism' amounted to more than just an opinion.
The DWP have a standards of behaviour procedure which restricts civil service employees from engaging in political activity. The employee was dismissed for gross misconduct for not seeking management permission before standing as a councillor in breach of the procedures, as well as writing the letter. He claimed unfair dismissal and direct discrimination based on philosophical belief, alleging that he was dismissed because of his views as a long standing Labour party activist.
At a preliminary hearing the employment tribunal concluded that the employee’s political belief was a philosophical belief which could be protected by the Equality Act 2010. However he was required to pay a deposit to pursue the claim. Ordering a deposit is a sign the tribunal thought the overall claim was weak with little prospect of success. However it appears that a political belief in 'democratic socialism' may amount to a philosophical belief under the Equality Act 2010.
Implications for employers
- The Equality Act 2010 prohibits discriminating against a person because of religious or philosophical belief.
- In the previous case of Grainger v Nicholson a belief in catastrophic climate change was categorised as a ‘philosophical belief’ for discrimination purposes.
- Political beliefs are complicated to assess, but although support of a political party is not a ‘philosophical belief’, a belief in a political philosophy or doctrine such as socialism, Marxism or free-market capitalism might qualify according to the Grainger case.
- The Grainger case defines the following elements of ‘philosophical belief’:
- A belief must be genuinely held.
- It must be a belief, not an opinion or viewpoint.
- The belief must be weighty and relate to a substantial aspect of human life and behaviour.
- The belief must attain a certain level of cogency, seriousness, cohesion and importance.
- The belief must be worthy of respect in a democratic society, not be incompatible with human dignity and must not conflict with the fundamental rights of others.
- It now appears that an employee with a strong political affiliation may be protected under the Equality Act 2010.
- Simply being a member of a political party will not be enough to claim protection, but employees with significant involvement in a political parties and their values may be granted protection under discrimination law.
- The case is a first instance decision and is not binding on other tribunals.
Mba v The Mayor and Burgesses of the London Borough of Merton | Court of Appeal | 5 Dec 2013
(unreported,  EWCA Civ 1562 5 December 2013, CA)
Issue: Sunday working
A care worker in a children’s home, was employed on a contract under which she could theoretically be required to work on Sundays. From the outset the manager had explained that all staff had to work a shift rota that included weekends and the care worker replied that she would have 'difficulties' working on Sundays, but did not say that her beliefs meant that she could never work on Sundays. For a period of time she was not allocated work on Sundays and the home tried to recruit additional staff for the Sunday work, but was unsuccessful. Eventually she was told she would face disciplinary action if she did not cover some Sundays. She eventually resigned claiming indirect discrimination on the ground of religion or belief, and constructive dismissal.
The employer had applied a provision, criterion or practice to the care worker, namely the working of some Sunday shifts in accordance with the rota. This would put persons of the same religion as the care worker at a particular disadvantage when compared with others and that she was put at such a disadvantage. However, was it justifiable?
The matter eventually reached the Court of Appeal (CA) where the employer succeeded in showing that the Sunday working requirement was proportionate in this case. The home had tried very hard to accommodate her beliefs, but also had to balance an appropriate gender and seniority balance on each shift, fair treatment of all staff, compliance with legal limits on working time and limited use of agency and bank workers. The CA agreed with the Employment Appeal Tribunal that the employment tribunal had struck a balance between Merton’s needs and the discriminatory impact of the Sunday-working requirement on the care worker. The tribunal had said it needed to consider if avoidance of working on Sunday was a core component of the Christian faith; it decided that this was not a core element. However the Court of Appeal found that this approach was incorrect and that it is not necessary to establish that all, or even most, Christians would be put at a particular disadvantage - it was merely necessary to consider proportionality. (The employer had not breached the implied term of trust and confidence and thus there was no constructive unfair dismissal either).
Implications for employers
Employers should try hard to accommodate an employee whose religious beliefs conflict with the employer's proposed working hours.
Employers who have acted reasonably and offered alternatives do not have to do everything possible to accommodate the employee’s wishes.
Employers should always take accurate records of job interviews and all subsequent discussions, especially where religious beliefs are mentioned as these may be important evidence if the employee later brings a tribunal claim.
Although the judges disagreed on their precise reasoning it seems clear that an employer does not have to show a group disadvantage as part of the justification defence in religious discrimination cases.
This means that employers have to decide whether to accommodate a particular employee’s religious beliefs in the workplace and they should not assume there is no need to make adjustments because the belief is not a common or core belief in that particular religion.
To establish the justification defence employers have to balance the needs of the employer with the religious beliefs of the employee. For example, providing a seven-day, twenty-four hour service in a care home etc will be a legitimate aim for an employer who feels the need to place restrictions on manifesting religious belief depending upon all the other factors including other staff available etc.
Eweida and others v UK |European Court of Human Rights | Jan 2013
 IRLR 231
Issue: wearing religious symbols and manifesting religious beliefs at work
Four Christian employees (Eweida, Chaplin, Ladele and McFarlane) who had had their indirect religious discrimination claims rejected by UK courts, made applications to the ECHR that the UK had failed to protect their rights under Articles 9 and 14 of the European Convention on Human Rights to manifest their religious beliefs.
The first two cases required the ECHR to decide if the restriction on two Christian employees wearing a cross over their other clothing at work amounted to an interference with their right to manifest their religious belief. It also had to decide whether there was a breach of the UK's obligation to protect their rights under Article 9 of the European Convention on Human Rights. Eweida and Chaplin were both prevented by their employers’ dress codes from wearing their crucifixes.
The second two cases involved two Christians, Ladele and McFarlane, who stated their religious views on same-sex relationships were not taken into account at their place of work. One employee was dismissed for refusing to give Relate counselling to same-sex couples and the other employee was disciplined for refusing to conduct civil partnership ceremonies for the London Borough of Islington between same-sex couples.
Ladele and McFarlane both objected to carrying out certain work duties in respect of same-sex couples, due to their religious beliefs about marriage and sexual relationships.
In the case of Eweida, the EHRC decided that her Article 9 right to manifest her belief was unjustifiably breached. Her desire to wear a visible cross did not adversely affect the employer’s (British Airways) corporate image.
In the case of Chaplin, a nurse, the EHRC unanimously concluded that the health and safety of staff and patients outweighed her right to wear a visible crucifix on a chain around her neck. Although the employer's decision did interfere with her Article 9 rights, it was justifiable on health and safety grounds.
The EHRC decided against both Ladele and McFarlane. The UK courts had wide discretion to strike a balance between competing Convention rights. Although the loss of a job was a severe sanction with grave consequences, the wide discretion to determine the right balance between manifesting religious belief and sexual orientation rights had not been exceeded.
Implications for employers
As a result of these cases it will be easier for individuals to establish rights to manifest religion or belief but the courts will now focus on assessing whether any interference with such rights is justifiable, not on what the religion actually requires.
Points to note:
- An employer should take all religion or belief requests seriously and should not make assumptions about the significance of a religion or belief.
- Employers should start by exploring how to permit a request unless there are good, cogent or compelling reasons to justify refusal.
- Employees may be protected provided that the behaviour or practice is genuine and broadly motivated, influenced or inspired by their religion or belief and is worthy of respect in a democratic society.
- Employers should take a balanced view of the needs of the employee regarding their religion or belief.
- Employees can refrain from some work duties depending on how crucial those duties are, the needs of the business and the effect on other employees and on customers.
- It does not matter that different employees choose to manifest their religion differently from other employees or others of the same religion.
- Employers must consider whether the aim they are pursuing is legitimate and if so, whether it is being pursued by proportionate means.
- Employers should keep policies and practices affecting religion or belief under review to ensure that they do not discriminate against an employee who holds a particular belief.
- Employers should balance the competing needs of the employee sensitively and carefully. This involves looking at the impact on the business, the impact on the individual making the request and on other employees and customers if the request is or is not granted.
- Employers should remember that different treatment may be possible without breaking the law.
Redfearn v UK | European Court of Human Rights | 6 Nov 2012
(unreported, Application no 47335/06 6 November 2012, ECHR)
Issue: Religion and belief discrimination / Human rights
A prospective local councillor for the British National Party (BNP) worked for Serco as a driver transporting children and adults with physical or mental disabilities for the local authority. A trade union representative contacted Serco saying they were worried about Mr Redfearn’s role because of his racist or fascist beliefs. Serco dismissed him, explaining the dismissal away as a redundancy on health and safety grounds. A large proportion of the Bradford population is Asian and it was thought that his continued employment may cause anxiety to passengers and their carers. Other concerns were that Mr Redfearn may be a target for attacks thereby making the bus service unsafe. Mr Redfearn’s presence could also jeopardise the employer’s reputation and possibly the contract with Bradford Council.
Mr Redfearn had insufficient length of service to claim for unfair dismissal so he claimed direct and indirect race discrimination. Eventually the matter reached the Court of Appeal where he lost as the claim was of discrimination on political grounds and did not amount to race discrimination. The Court of Appeal refused a further appeal to the House of Lords.
Mr Redfearn then applied to the European Court of Human Rights (ECHR) for breach of his right under Articles 10 (right to freedom of expression) and Article 11 (a right to freedom of assembly and association). He won in the ECHR. It was considered that, at the age of 56, his future employment opportunities were limited, he had been a first-class employee and the employer’s concerns were of predicted problems not actual ones. The ECHR said the UK should protect employees against dismissal motivated solely by membership of a political party. The Court emphasised the Convention on Human Rights applies to favourably regarded political views as well as those views which people find offensive, shocking or disturbing.
Implications for employers
As a result of this case, in February 2013 the Government amended the Enterprise and Regulatory Reform Bill so that the usual qualifying period for unfair dismissal does not apply if the principal reason for the dismissal relates to the employee’s political opinions or affiliation.
Employers must not discriminate on the grounds of political belief.
Employers may wish to consider amending their equal opportunities policies to confirm that political beliefs will be respected.
UK legislation has a gap concerning protection for employees from dismissal on grounds of political opinion or affiliation.
The issue of protection for members of a political party such as the BNP has still not been fully determined by the UK courts.
Employers may be able to argue that Marxist or Trotskyist political beliefs do not attract protection as previous case law supports this view.
The leading decision in Nicholson v Grainger plc suggested that extreme political parties would not be protected, because of its requirement that a philosophical belief must not be incompatible with human dignity and not conflict with the fundamental rights of others.
Employers can therefore argue that some beliefs conflict with the fundamental rights and dignity of others and are unworthy of respect in a democratic society.
The Equality Act 2010 provides protection from discrimination for employees who hold ‘philosophical beliefs’.
Philosophical beliefs may encompass some political beliefs.
Employers with employees who are members of the BNP should assume those employees may be protected and avoid treating them less favourably.
The requirement that philosophical beliefs must be 'similar' to a religious belief is no longer necessary.
Public sector employers are particularly at risk of claims based on breach of the Human Rights Act 1998 if they discriminate on the grounds of political belief.
Private employers who do discriminate on political grounds may face discrimination claims at a tribunal based on the person's philosophical belief.
Employees with minority philosophical beliefs still cannot harass other employees by expressing their beliefs with impunity. Even if a belief is protected it can still be voiced unacceptably.
As a result of the Redfearn case the UK was proven to have breached the Convention on Human Rights and the Government had to introduce new draft legislation to enable employees to claim unfair dismissal for dismissals based on their political beliefs.
In the meantime the matter will be left to the judges to decide, and employers should therefore assume tribunals could interpret 'philosophical belief' under the Equality Act 2010 to cover political beliefs.
Pasab and another v Woods | Employment Appeal Tribunal | 2 Feb 2012
(unreported, EAT/0454/11 2 February 2012, EAT)
Issue: Religion and belief discrimination - victimisation
An employee who described herself as a white Irish Muslim claimed she was dismissed after she raised a complaint of race discrimination and discrimination on the grounds of religion and belief. She was a student pharmacist at a chemist which was owned by Sikh management. She told the employer that the company was 'two faced and a little Sikh club that only looked after Sikhs'. After a suspension and a subsequent disciplinary hearing she was dismissed for poor timekeeping and a failure to follow the company’s absence reporting procedure. She claimed discrimination, in particular victimisation based upon raising her concerns about race and/or religion or belief discrimination.
The Employment Appeal Tribunal agreed that the employee's remark was an allegation of direct discrimination and was therefore a 'protected act' under the Employment Equality (Religion or Belief) Regulations 2003. However, although the 'little Sikh club' comment was a complaint by the claimant of religious discrimination the respondent had not realised that and simply thought it was a racist comment. If the comment was viewed not as an offensive racist comment then the reason for dismissal was not that the claimant had done a 'protected act', but for some other reason which was genuinely separable from the implied complaint of discrimination.
Implications for employers
- Employers will not be liable for victimisation if they can show that the employee’s protected act was not the reason why the employer subsequently acted as it did.
- Whilst it is true that the employee may still have been employed ‘but for’ the fact she made the comment, in a victimisation claim an employee has to show more than 'but for' the protected act the dismissal would not have happened.
- This case was decided under legislation replaced by the Equality Act 2010. However it still shows how victimisation claims work.
Hashman v Milton Park (Dorset) Ltd t/a Orchard park | Employment Tribunal | 26 Oct 2011
(unreported, 26 October 2011, ET)Issue: Religion and belief discrimination - philosophical belief
In this case the claimant's belief in the sanctity of life and strong anti-fox hunting and anti-hare coursing views, constituted a philosophical belief under the Employment Equality (Religion or Belief) Regulations 2003 which have been replaced by the Equality Act 2010. The decision was very much based on the facts (they took account of how far the claimant ran his life to accord with his views) and did not mean that everyone opposed to fox hunting would necessarily hold a protected belief.
Implications for employers
- Employers should be aware that the precise extent of protection for an employee’s beliefs is still difficult.
- A growing number of case law decisions show a wide range of philosophical beliefs are capable of protection. Employers could research these cases carefully (or take legal advice) to check if their employee’s particular belief has already been challenged in the tribunals.
- Beliefs about climate change and fox hunting have now been held to be protected.
- Employers should proceed with caution before ignoring any employee’s belief and treating it as lacking in cogency.
- What amounts to ‘philosophical belief' for discrimination purposes will still be dependent on the test in Grainger and others v Nicholson.
- The nature of the belief itself is relevant, and not just the extent to which the employee believes it.
- Equal opportunity policies should take into account the various religions and a wide range of beliefs.
- Employers should ensure employees are not harassed or victimised on the grounds of cogent beliefs, even though only a small minority share those beliefs.
- Once a belief is capable of protection, the tribunals will then always consider if the employee has really been unlawfully discriminated against because of that belief.
Farrell v South Yorkshire Police Authority | Employment Tribunal | 24 May 2011
(unreported, ET/2803805/2010 24 May 2011, ET)
Issue: Terrorism conspiracy did not amount to philosophical belief
The claimant was employed by the Police Authority as a principal intelligence analyst. He was required to provide a ‘strategic threat assessment’ which included terrorism. He produced his report strongly highlighting his views that the UK and US had authorised the terror attacks to gain support for foreign wars. For example he did not believe that the Twin Towers had collapsed as a result of the airplane collisions, but had been engineered by bombs detonated inside the building. He was dismissed by the Police Authority on the grounds that his views were incompatible with, and prevented him from, performing his role. He brought an unfair dismissal claim and a claim for discrimination on the grounds of religion or belief.
The employment tribunal held that although the claimant’s beliefs were genuinely held, and not merely an opinion and did meet some of the requirements in Grainger & v Nicholson  IRLR 4 EAT the beliefs did not attain a certain level of cogency or cohesion and in fact when applying an objective test, his beliefs were absurd.
Implications for employers
Employers should be aware that the precise extent of protection for employees’ beliefs is still difficult. Employers should therefore proceed with caution before ignoring an employee’s belief and treating it as lacking in cogency.
What amounts to ‘philosophical belief' for discrimination purposes will still be dependent on the test in Grainger and others v Nicholson.
This case illustrates the factors that employers can consider to decide if an employee’s beliefs are capable of protection under discrimination law.
Beliefs about climate change and fox hunting have been held to be protected. However it appears that some more unusual beliefs may not always be protected.
The nature of the belief itself is relevant and not just the extent to which the employee believes it.
Equal opportunity policies should take into account the various religions and a wide range of beliefs.
Employers should ensure employees are not harassed or victimised on the grounds of cogent beliefs, even though only a small minority share those beliefs.
If an employer has employees with strong, genuine beliefs they will not automatically be protected. The belief in question must also be cogent and coherent.
A growing number of recent case law decisions give employers guidance on the protection given to philosophical beliefs. Employers could research these cases carefully (or take legal advice) to check if their employee’s particular belief has already been challenged in the tribunals.
The recent decisions show that a wide range of various philosophical beliefs are capable of protection.
Beliefs are unlikely to be cogent and coherent if there is extensive contrary evidence in the public domain.
Once a belief is capable of protection, the tribunals will then always consider if the employee has really been unlawfully discriminated against because of that belief.
McFarlane v Relate Avon Ltd | Employment Appeal Tribunal | 28 Sep 2010
 IRLR 872, CA
Issue: Refusal to carry out job duties
A relationship counsellor was dismissed because he refused to treat same-sex couples because of his religious (Christian) beliefs. His refusal was contrary to his employer’s equal opportunities policy. He brought claims for direct and indirect religious discrimination and un fair and wrongful dismissal.
An employment tribunal held that the claimant was not dismissed because of his religious beliefs, but because of his refusal to comply with the equal opportunities policy. Any other employee who had refused to comply with this policy would also have been dismissed, regardless of their religious belief. This decision was upheld by the Employment Appeal Tribunal who concluded that the claimant was not dismissed for his religious beliefs, but because he would not comply with the policy and so there was no direct discrimination. Also while the policy requirements might constitute a ‘provision, criterion or practice’ that put the claimant at a disadvantage, they were justified as a proportionate means of achieving a legitimate aim of providing non-discriminatory services. There was therefore no indirect discrimination either.
The Court of Appeal refused the claimant permission to appeal against the EAT decision. It confirmed that there is a difference between detrimental treatment of a person on the grounds of their religious beliefs, and the treatment of a person because of the actions they take to manifest their beliefs, which may well not be protected. The right to follow a particular religion is protected at law, but a particular viewpoint will not automatically be protected if it is based on a religious precept.
The the matter was then referred to the ECHR as part of Eweida and others v United Kingdom  ECHR 57. The claimant also lost here. See that case report for more details of the EHRC decision and for the implications for employers.
Grainger plc v Nicholson | Employment Appeal Tribunal | 3 Nov 2010
 IRLR 4, EATIssue: Religion and belief discrimination - philosophical belief
The claimant was made redundant and brought a number of claims, including unfair dismissal and discrimination on the grounds of religion or belief. He argued that his strong beliefs about the importance of climate change and the environment contributed to the loss of his job.
At a pre-hearing, the employment tribunal (ET) held that the claimant’s strong environmental beliefs did come under the Employment Equality (Religion or Belief) Regulations 2003 (as amended In 2007). The ET took into account McClintock v DCA  IRLR 29, EAT where the test for deciding whether a ‘philosophical belief’ was covered by the 2003 Regulations was that the belief ‘must have sufficient cogency, seriousness, cohesion and importance and be worthy of respect in a democratic society’.
The Employment Appeal Tribunal (EAT) agreed that the claimant did meet that test and also that he had showed that his beliefs affected the way he lived his life and gave rise to a similar moral order derived from world religions. The belief held by the claimant was therefore capable of being a belief for the purposes of the 2003 Regulations. Mr Nicholson will now proceed with his case and will have to prove his belief is genuine and more than an opinion or viewpoint based on the present state of information available and that his dismissal was on the grounds of his belief. It is clear that there is a distinction between 'philosophical belief' and 'an opinion or viewpoint based on the present state of information available' .The latter will not fall within the Regulations.
Implications for employers
- All employers must ensure that they have a comprehensive, current equal opportunities policy in place. This must encompass dignified treatment for people of all religious and philosophical beliefs.
- All managers must be trained in avoiding religious and philosophical belief claims.
- The best course of action for employers is to avoid treating employees less favourably for any reason relating to their personal beliefs.
- This is the first case where a claimant has successfully established protection for a non-religious belief and therefore opens the door for a wider interpretation of ‘belief’.
- Employers can still argue that any treatment alleged was not on the grounds of the belief.
- Employers can also argue that the employee has an opinion or viewpoint rather than a belief.
- Employers have previously defeated claims relating to beliefs against adoption by same-sex couples, and support for the British National Party as these were found to fall outside the definition. However beliefs which affect the way individuals lead their life such as strong opinions on green issues or vegetarianism appear to be capable of constituting a ‘belief’.
In April 2010 an out of court settlement of £42,200 as well as £12, 800 towards the claimant's legal costs was agreed.
Please note: While every care has been taken in compiling these notes, CIPD cannot be held responsible for any errors or omissions. These notes are not intended to be a substitute for specific legal advice.
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