Commonly asked questions on the legal issues relating to religious discrimination in the workplace
This form of discrimination arises when someone is unfairly disadvantaged for reasons related to their religion or beliefs. It has been illegal in the UK since 2003, with the law now incorporated into the Equality Act 2010, which covers religious or philosophical beliefs but doesn’t give a list of religious and belief groups. It does, however, include not having any religious belief. To change attitudes, organisations should be promoting an open culture of respect and dignity for all employees, and value difference.
This factsheet offers an overview of the different types of discrimination with examples of how these apply to religious discrimination. It suggests good employment practices, covering the managing of equality and diversity issues, the encouraging of personal commitment, the addressing of any incidents of harassment or bullying, and the reviewing of all policies and procedures - such as recruitment and selection, performance management and development - to ensure they are fair.
Managing diversity and inclusion successfully is essential to good people management because everyone is different. Different perspectives, experiences and ideas challenge ‘group think’, stimulate creativity and innovation, and contribute to better business performance. Failure to deal with prejudice, stereotyping and unconscious bias regarding issues of personal identity, result in unfair decisions about the recruitment, development, retention and release of talent, and flawed approaches to the development and promotion of products and services to diverse markets.
Employers who take no action to promote diversity will quickly become less attractive to the diverse labour market for talent and skills, and they will lose out to competitors.
What is religious discrimination?
This form of discrimination arises when someone is unfairly disadvantaged for reasons related to their religion or beliefs. The Equality Act 2010 includes religious or philosophical beliefs but doesn’t give a list of religious and belief groups that are covered under the Act. However, religion includes not having any religion. So, an individual can be discriminated against if they have no religious belief. A religion must have a clear structure and belief system. ‘Belief’ means any religious or philosophical belief, or a lack of such belief. To fall under the Act, a belief must usually satisfy a number of criteria, including that it’s an important aspect of the way in which a person behaves in conducting their life.
Examples from case law in this area confirm that the following religions or beliefs have been covered under the discrimination provisions: Muslim, Christian, Hindu, Jewish, Sikh, Buddhist, Pagan, Humanist and Atheist beliefs. Other beliefs which have been protected by the Act include: environmental or ‘green’ beliefs in the importance of climate change, animal welfare anti-hunting, spiritualism, and beliefs in the psychic field. Some political beliefs have been found to be protected by the Equality Act. The law ensures that those dismissed for their political affiliations can claim unfair dismissal - even if they’ve not met the requisite qualifying period.
The legal position
In Great Britain, legislation against discrimination on the grounds of religion and belief, originally introduced in 2003, is now covered by the Equality Act 2010. The Equality and Human Rights Commission has published a range of guidance on all aspects of the Equality Act. CIPD members can find out more in our Religious discrimination law Q&As.
In the referendum on 23 June 2016 the UK voted to leave the EU. Our Brexit hub has more on what the implications might be for employment law.
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.
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 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 individuals to dress in exactly the same way - without modification or reasonable adjustment to accommodate, where practical, a person’s declared religious belief – putting an individual at a disadvantage as a result, then it would be indirect discrimination unless the employer could show that the uniform was justified.
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.
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 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 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.
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.
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. Exemptions also apply for acts in the interest of national security.
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 carefully. Different provisions apply concerning positive action relating to recruitment and promotion. See the guidance from Citizen’s Advice.
Good employment practices
As part of coherent diversity, inclusion and employee engagement strategies, employers should undertake thorough reviews or equality analyses of policies and working practices to remove unfair discrimination and bias. This is key to creating open workplace cultures where to be different is not a problem but an asset.
Actions should focus on:
- promoting a culture of personal responsibility for treating people with respect and dignity.
- raising awareness about the importance of different views and ideas in connection with business performance.
- making the business case for managing diversity and making this clear to everyone.
- assigning responsibility to key change agents and influencers to ensure diversity management is driven into core business practices.
- thinking inclusively when devising policies and procedures to make sure they’re practical and aim to cater appropriately for diverse needs and preferences.
- monitoring and evaluating policies and practices regularly to refresh them and ensure they work.
- tracking the impact of policies and practices with relevant facts and figures.
Engaging personal commitment
Key steps include:
- Making standards of behaviour clear to everyone through regular and appropriate communication methods.
- Emphasising the role of line managers in making sure policies and practices are acted on.
- Providing suitable training to ensure people understand what equality and race and diversity are and how to respond to issues. Participative workshops, events and campaigns are useful - it’s not sufficient to simply send an email saying that a policy is available.
- Auditing the employee profile to check how diverse this is by monitoring personal characteristics in an open, voluntary and honest way provides hard management data on which to judge progress. Employees need to feel confident in providing personal information and be assured that such information will be treated sensitively and in confidence and not be used against them in a discriminatory way. The Equality and Human Rights Commission provide practical guidance on monitoring.
- Don’t tolerate harassment and bullying and be seen to act when incidents arise.
- Consider introducing diversity support networks to identify ways of managing diversity issues in ways that add value to the business.
- Make equality policies and statements easily accessible.
Some employment practices to consider for review
- Check recruitment processes aren’t open to discrimination on the basis of race. 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.
- Make sure appraisal and performance management processes aren’t biased and check that career paths and promotion and training opportunities are inclusive for all employees.
- Review policies and procedures related to, for example: flexible working practices, dress code/uniforms, flexible canteen menus, and terms and conditions, to ensure they don’t discriminate on the basis of race.
Useful contacts and further reading
Books and reports
ACAS. (2014) Religion or belief and the workplace: a guide for employers and employees. London: Acas.
EDGE, P. and VICKERS, L. (2016) Review of equality and human rights law relating to religion or belief. Research report 97. Manchester: Equality and Human Rights Commission.
GROSCHL, S. and BENDL, R. (2015) Managing religious diversity in the workplace: examples from around the world. Farnham: Gower.
MITCHELL, M., BENINGER, K., DONALD, A. and HOWARD, E. (2015) Religion or belief in the workplace and service delivery: findings from a call for evidence. Manchester: Equality and Human Rights Commission.
RUBENSTEIN, M. (2016) Discrimination: a guide to the relevant case law. 29th ed. London: Michael Rubenstein Publishing.
WELLER, P. (2011) Religious discrimination in Britain: a review of research evidence 2000-10. Research report. Manchester: Equality and Human Rights Commission.
Faith in the workplace. (2011) IDS Employment Law Brief, No 920, March. pp13-18.
MCCREA, R. (2013) Religious dress and human rights. Equal Opportunities Review, No 235, April. pp8-10.
PITT, G. (2011) Keeping the faith: trends and tensions in religion or belief discrimination. Industrial Law Journal. Vol 40, No 4, December. pp384-404.
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