Explore the UK legal position and main issues employers face when dealing with religious discrimination in the workplace.
The principal legislation governing discrimination on the grounds of religion or belief is the Equality Act 2010.
The following aspects of the European Human Rights Convention are also relevant:
- Article 9 – guarantees freedom of thought, belief and religion
- Article 10 – guarantees freedom of expression
- 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.
These Articles are incorporated into UK law through the Human Rights Act 1998This area of employment discrimination law in particular relies quite heavily on both the European Convention and the Human Rights Act including in relation to case law. It remains to be seen whether post-Brexit the UK government will introduce legislation which will sidestep these provisions and how that might impact on future development of this area of employment law.
COVID-19: Whether a refusal to be vaccinated is part of a religion or religious belief may be an issue that arises following the pandemic. For example, a Rastafarian who only uses natural remedies might refuse a vaccine that has been chemically prepared. This aspect of religion and belief is a manifestation of belief which is protected provided it is not objectionable to society. It remains to be seen whether this type of protection could be challenged in the courts.
These Q&As should be read alongside our Case law on religion and belief discrimination.
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Definition of religion or belief
The Equality Act 2010 sets out a number of protected characteristics, including the protected characteristic of religion, or religious or philosophical belief.
Religion or belief is a broad definition. The main restriction is that a religion must have a clear structure and belief system.
Denominations or sects within a religion, such as Protestants and Catholics within Christianity, can be considered to be a religion or belief.
A philosophical belief must be genuinely held. In addition, a philosophical belief must:
- be a belief and not an opinion or viewpoint based on the present state of information available
- be a belief as to a weighty and substantial aspect of human life and behaviour
- attain a certain level of cogency, seriousness, cohesion and importance
- be worthy of respect in a democratic society, compatible with human dignity and not conflict with the fundamental rights of others.
Once the nature of the belief is identified, the employment tribunal will look at each of these items in the checklist above. They arise from a case in which an employee alleged that a belief in climate change amounted to a philosophical belief (see Grainger v Nicholson, 2009 below). It is perfectly possible for a belief to be ‘weighty’ while not being ‘worthy of respect in a democratic society’; for example, a belief which entails breaking the law.
Absence of religion or belief
In the Equality Act it is clear that:
- non-believers are expressly covered
- a reference to religion or belief will encompass a reference to lack of religion or belief
- a philosophical belief does not have to be ‘similar’ to a religious belief.
Range of religions or beliefs
Examples given within the guidance notes to the Act, and from previous case law, confirm that the following religions or beliefs are covered:
In Holland v Angel Supermarket Ltd and another (2013) a Wiccan follower won her claim of direct discrimination on grounds of religion and belief. She had switched her shifts at a convenience store to celebrate All Hallows’ Eve and was mocked and later dismissed. The store was owned by a Sikh who gave a shocked reaction to the revelation that she was a Wiccan.
Other beliefs which have been found to count as protected 'beliefs' include:
- Environmental or ‘green’ beliefs in the importance of climate change (see Nicholson v Grainger, 2010).
- Animal welfare and anti-hunting beliefs (Hashman v Milton Park (Dorset) Ltd (t/a Orchard Park) 2011).
- Ethical veganism (Casamitjana v The League Against Cruel Sports 2018). In an earlier case the same year an employment tribunal had found that vegetarianism did not amount to a philosophical belief as it was not sufficiently weighty.
- Spiritualism and beliefs in the psychic field (Power v Greater Manchester Police Authority (2010).
- A humanist belief held by a violinist in the London Philharmonic Orchestra who was disciplined after publicly protesting against the Israel Philharmonic Orchestra performing at the 2011 Proms (Streatfeild v London Philharmonic Orchestra Ltd (2012).
- A Christian who believed that lying is wrong (Hawkins v Universal Utilities Ltd t/a Unicom (2012). The employment tribunal held that a telesales agent's belief that potential customers should not be deceived could be protected under the Equality Act 2010. Although the belief in truthfulness was capable of protection, this employee ultimately lost because he did not have enough evidence that he had actually been asked to lie to customers.
Beliefs which have been found not to count as 'beliefs' protected by the Act include:
- A belief that the terrorist attacks of 9/11 and 7/7 were authorised by the British and American Governments. This belief in a worldwide evil and satanic media conspiracy failed because the beliefs were absurd and were not cogent (Farrell v South Yorkshire Police Authority (2011).
- A belief that people should wear a red poppy from 2 November until Remembrance Sunday each year was not considered sufficiently weighty to qualify as a belief (Lisk v Shield Guardian Co Ltd and others (2011).
- A belief in the 'human or moral right to own the copyright and moral rights of creative works and outputs’ was found not to be protected. The EAT held the belief lacked sufficient clarity or cogency to qualify as a belief (see Gray v Mulberry Company (Design) Ltd (2018).
The guidance in the case of Grainger plc v Nicholson (2009) referred to above will be useful for employers when considering what amounts to a philosophical belief. A former environmental policy officer claimed that a residential property investment company unfairly selected him for redundancy because of his strong belief about the importance of the environment. The EAT decided that a belief in the importance of the environment and climate change can amount to a philosophical belief and then outlined these guidelines.
This can be a difficult area for managers to tread as they may have no knowledge of the belief or whether it complies with the guidelines set out above. Caution should however be exercised in dismissing a belief as lacking any legal basis and further enquiries should be made where discrimination is alleged.
There may also be claims that such a belief amounts to a philosophical belief but these are unlikely to succeed unless the employee can show that the belief is sufficiently weighty or cogent and does not conflict with the fundamental rights of other employees. Employers will need to balance any such complaints, if valid, with their requirement to maintain the health and safety of all those in the workplace which should not be too difficult to justify.
Employees who are dismissed for their political views are expressly protected under the Enterprise and Regulatory Reform Act 2013 and may be protected by the Equality Act 2010 as well. Employees will be protected for holding favourably regarded political views, as well as those views which people find offensive, shocking or disturbing.
There are two main claims that an employee may consider if they are dismissed for their political views. The two separate legal protections are dealt with under separate headings below.
From 25 June 2013, the two-year qualifying period for unfair dismissal claims does not apply where the reason or principal reason for dismissal relates to the employee's political opinions or affiliation.
An employee who can prove they were dismissed for their political views can therefore claim unfair dismissal on day one of their employment.
This amendment to the law was made as a direct result of the case Redfearn v UK (2012) in which the ECHR held that UK law breached Article 11 of the European Convention on Human Rights because it prevented individuals who wanted to assert the right of freedom of association from bringing a claim for unfair dismissal without the qualifying period of service. The ECHR directed that the UK must introduce protection for such individuals either by creating:
- an exception to the requirement for the qualifying period for unfair dismissal, or
- a free-standing claim for unlawful discrimination on the grounds of political affiliation.
As a result, s108 of The Employment Rights 1996 removes the two year qualifying period to claim unfair dismissal if the reason is the employee’s political opinion or affiliation. Since the amendment was made, there has been an increase in claims relying on a philosophical belief arising from a political affiliation. In some cases, as a result of Redfearn, it would also be possible for the employee to claim the reason for the dismissal was because of a political affiliation.
Equality Act 2010
Initially when the Equality Act 2010 was introduced, it was thought that political beliefs were not protected. However, as a result of decided cases, political views may be treated as philosophical beliefs in some cases. It is therefore safer for employers to assume that political beliefs could be protected and avoid discriminating against employees because of their political affiliation. If the employee is dismissed, they will be able to claim unfair dismissal anyway if it is for this reason.The Act provides protection from discrimination for employees who hold ‘philosophical beliefs’. To count as a philosophical belief the views must be genuinely held and meet the criteria set out above – for example, a belief must be sufficiently cogent, serious, cohesive, important and worthy of respect in a democratic society.
More case law examples
The law is constantly evolving and it appears that some employees have obtained protection for beliefs which are in reality political views.
Olivier v Department of Work and Pensions (2013), concerned a Labour Party supporter has decided that a employee’s belief in democratic socialism could amount to a ‘philosophical belief’ for the purposes of a religion or belief discrimination claim.
His belief related to a weighty and substantial aspect of human life and behaviour and the belief attained a certain level of cogency, seriousness, cohesion and importance.
In Henderson v GMB v Keith (2015) the claimant was a GMB regional organiser and part of his role involved undertaking political activities in co-ordination with the Labour Party. During a strike which he was organising for GMB at the House of Commons there were some issues concerning publicity about Labour MPs not being expected to cross the picket line and the left wing wording of a press release.
The claimant believed these issues ultimately led to his dismissal. He claimed unfair dismissal, wrongful dismissal, and discrimination. The Employment Appeal Tribunal (EAT) confirmed that he was fairly dismissed for gross misconduct. Left-wing democratic socialism was capable of being protected as a philosophical belief. However, although left-wing democratic socialism falls within a protected characteristic for the purposes of the Equality Act 2010, on this occasion there was a lack of evidence that it was his beliefs that caused any discriminatory treatment or harassment.
The EAT also emphasised that it was possible to be fairly dismissed and discriminated against.
In McEleny v the MOD (2017) a belief in Scottish independence (but not in the aims of the Scottish National Party) was held to be a philosophical belief
In Harron v Chief Constable of Dorset Police (2016) a belief that public service is improperly wasteful of money was potentially protected as a ‘philosophical belief’ under the Equality Act 2010. The claimant worked for Dorset Police and claimed a detriment arising from his profound ‘belief in the proper and efficient use of public money in the public sector’ as discrimination based on ‘philosophical belief’. The EAT held that the employment tribunal had not correctly applied the criteria in the Grainger case (see above) and said the employment tribunal should reconsider the case again.
Points for employers
Employers whose employees have strong political views should assume that the employee may be protected under the Equality Act 2010 in relation to those beliefs.
Practical points for employers to consider include the following:
- 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 are likely to receive discrimination claims based on the person's philosophical belief, as well as unfair dismissal claims where an employee has been dismissed.
- Employers can still argue that an extreme political belief is not worthy of respect in a democratic society and is incompatible with human dignity.
- It is still not known if the BNP's views are definitively protected under religion and belief discrimination legislation. They are protected from unfair dismissal, and it is safer for employers to assume they may be protected during employment and avoid treating BNP members less favourably.
- 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, especially if it harasses others.
An employer will directly discriminate where, on the grounds of the person's religion or belief, it treats an employee or worker less favourably than it would treat other persons because they hold a religion or belief, are perceived to hold a religion or belief, they do not hold a religion or belief.
For example, direct discrimination would occur where an employer refuses to promote an employee because they are not Jewish.
Direct discrimination could also take place when someone is treated less favourably than another because they are thought to have a religion or belief (perceived discrimination) or because they associate with someone who has a religion or belief (associative discrimination).
Direct discrimination, therefore, also covers discrimination against a person by reason of the religion or belief of someone else. For example, a person who is discriminated against because they associate with a colleague who is a Buddhist.
People can bring a claim even if the discrimination was based on incorrect assumptions about their religion or belief.
Indirect discrimination can be summarised as the application of a provision, criterion or practice (`PCP`) which is applied to everyone but which when applied to a person with a protected characteristic (such as religion and belief) is or would be discriminatory .
The Equality and Human Rights Commission says in its guidance on this issue that ‘indirect discrimination happens when there is a policy that applies in the same way for everybody but disadvantages a group of people who share a protected characteristic, and (an employee or worker is) disadvantaged as part of this group. If this happens, the person or organisation applying the policy must show that there is a good reason for it.’
In other words, the employer has to show there is a good business reason for imposing this PCP and has carefully balanced this against the potential discriminatory effect that it would have on the employees who say it disadvantages them.
If the employer can show a proportionate means of achieving a legitimate aim, even where there has been discrimination, it will be able to justify the PCP and thus defend the claim successfully. Many claims of indirect religion and belief discrimination turn on the effectiveness of the justification defence.
- An organisation requires assistant managers to complete an internal training course as a pre-requisite to promotion and the training courses always take place late on Friday afternoons. This is a provision which is applied to all relevant staff regardless of creed; however, it might put Muslim or Jewish assistant managers at a disadvantage. Such a provision is indirectly discriminatory. It is unlikely that the organisation would be able to show this requirement pursued a legitimate aim and that it was proportionate.
- An organisation's uniform policy bans headwear entirely. This is a provision which is applied to all relevant staff regardless of creed; however, it might put Muslim women or Sikh men at a disadvantage. Such a provision is indirectly discriminatory. (There is an exception for the protection of Sikhs in connection with requirements as to the wearing of safety helmets - Regulation 26 of the Employment Equality (Religion or Belief) Regulations 2003). There is further discussion of case law about Muslim female dress codes in the section about dress codes later.
Equality and Human Rights Commission guidance defines victimisation as ‘treating someone badly because they have done a ‘protected act’, or because an employer, service provider or other organisation believes that you have done or are going to do a protected act. The reason for the treatment does not need to be linked to a protected characteristic.’
An example of a ‘protected act’ is making a claim of discrimination under the Equality Act.
The Act makes it clear there is no need to use a comparator to measure the treatment.
An example would be a worker who gives evidence for a fellow worker who has brought a religious discrimination claim in the tribunal, and subsequently finds that they are not promoted as a result of providing this support. This would be discrimination by way of victimisation.
A claim decided by the Court of Appeal in February 2021 Page v The Lord Chancellor; Page v the NHS Trust Development Authority 2021 (see Recent cases, Case law on religion and belief discrimination) 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.
Under the Equality Act, harassment is unwanted conduct which violates another person’s dignity and creates an intimidating, hostile or degrading environment for that person.
To be protected, harassment has to be unwanted behaviour that someone finds offensive, where the harasser’s behaviour is because:
- the recipient has a protected characteristic
- there is a connection with a protected characteristic (for example, the recipient is treated as though they have a particular characteristic, even if the harasser knows this isn’t true).
An over-sensitive complainant who takes offence unreasonably at a perfectly innocent comment would probably not be considered as having been harassed. However, in deciding whether conduct has an intimidating, hostile etc effect, the perception of the victim and the other circumstances of the case must be taken into account.
Examples of harassment would be jokes, nicknames, verbal abuse and physical harassment. Note that discriminatory acts of harassment can be a one-off remark or incident. The definition also indicates that the behaviour could have either the purpose or the effect of harassing behaviour. The effect of the treatment means it may be possible for the perpetrator to be unaware of the effects of their behaviour.
The context of the words used, or actions taken, will be relevant as to whether the behaviour will amount to discriminatory harassment. In the case of Bakkali v Greater Manchester Buses t/a Stage Coach EAT 2017 a colleague asked a bus driver if he was `still promoting ISIS`. The remark was not discriminatory as it was not related to his religion as required for claims of harassment. The Act makes it clear that associative harassment is sufficient to establish a claim. Under the Act it is also clear that employees can complain of behaviour that they find offensive even if it is not directed at them. Complainants are, therefore, protected from harassment because of both perception and association.
Employers may of course be held responsible for any acts of discrimination(including harassment) carried out by employees in the course of their employment because of the principle of vicarious liability (in which the employer ‘stands in the shoes’ of the perpetrator in the workplace). Employees will also be personally liable and aggrieved claimants may add them as a second party in tribunal claims. In some very limited circumstances employers may be liable for acts committed by third parties, although the law on discriminatory harassment no longer provides that protection and employers are no longer liable for harassment of employees by third parties who are not employees of the organisation, such as customers or clients.
Although the government repealed the previous specific protection, employers who fail to protect employees from harassment about their religion or belief are still likely to face liability for breach of contract or under other anti-harassment provisions.
Other legislation which may arise in a religious discrimination claim.
The Racial and Religious Hatred Act 2006 came into force on 1 October 2007 and created a new offence of incitement to religious hatred. The legislation is not employment related but is a piece of criminal legislation which enables the police to arrest those who use threatening words or behaviour (or display similar written material) with an intent to stir up religious hatred. It is possible that such behaviour in the workplace may lead to criminal offences being committed under the Act, in addition to breaching the existing race and religious discrimination provisions.
Although primarily concerned with protection from sexual harassment the Protection from Harassment Act 1997 could also be used in relation to incidents of racial or religious hatred although under this legislation, claims for a one-off act are not possible.
In order to show that a worker has been treated less favourably than other persons in a direct claim, a suitable comparator has to be identified. The comparator must be someone whose circumstances are not materially different. It will be for the employee to identify the correct comparator.
For example, if an accountant complains that they have not been promoted because they are an atheist working for a predominantly Christian firm, the correct comparator would be another accountant in the same position who is not an atheist, who has been promoted and whose experience and qualifications are matched to those of the complainant.
If a real comparator cannot be identified then a hypothetical one may be identified.
The most crucial aspect to remember about discrimination compensation is that it is uncapped. Compensation for religious discrimination is approached in the same way as other forms of discrimination and will include compensation for financial loss flowing from the discrimination as well as compensation for hurt feelings (which is subject to the suggested guidelines for levels of awards and seriousness of treatment, called the Vento bands – see ‘Compensation limits’ on our Statutory rates page).
In the cases that have been reported to date, the average awards seem lower in this area than the longer established forms of discrimination. The Employment Tribunals statistics during the period from April 2019 to March 2020 show a nil figure for awards for religious discrimination claims which is likely to simply mean that no awards were made. In earlier years awards of this type of claim would be significantly lower than for other types of discrimination averaging around £8,000 for example in 2014. In 2019-20 average awards for age discrimination were £38,974 and for disability discrimination £77,043.
For general guidance on the approach to the calculation of compensation in a discrimination context, see our Tribunal claims, settlement and compromise Q&As which address the elements of financial loss, injury to feelings and aggravated damages.
This issue has perhaps generated more case law and certainly more press coverage than any other single religious discrimination issue. The short answer is that yes, it is probably indirect religious discrimination to have a dress code which prohibits certain types of clothing with a religious link.
The safest and most practical approach for employers is probably to try and follow the Equality and Human Rights Commission and Acas guidance on religion and belief in the workplace which suggests being flexible and reasonable concerning religious clothing, items of jewellery etc. The guiding principle in assisting decision-making concerning employee dress should always be based around the impact of dress upon the employee’s ability to do their job.
UK and EU law
Under the Equality Act 2010 unjustifiable policies and rules may constitute indirect discrimination, so employers must ensure that policies on dress and appearance are justifiable If a dress code contains a generally applied provision which puts persons of a particular religion or belief at a disadvantage, it will be actionable discrimination unless the dress requirement is proven to be ‘a proportionate means of achieving a legitimate aim’. Legitimate aims to justify rules on dress or appearance could include health and safety or security.
Certain clothing and jewellery such as headscarves, turbans, kippahs (skull caps), modest dress, having a beard, wearing a cross, crucifixes, kara (a Sikh steel bracelet) or Star of David, may be a manifestation of belief. It does not matter if some members of the religion adopt a religious symbol and some do not.
EU case law takes a slightly less flexible approach and suggests that a dress code which prohibits all employees from wearing any visible religious, political or philosophical symbols at work may be permissible. The legal analysis at EU level is that such a code:
- is not direct discrimination on the ground of religion provided that the ban is founded on a general company rule and not on stereotypes or prejudices against one or more particular religions, or against religious beliefs in general.
- is probably indirect discrimination, but this may be justified in order to enforce a policy of religious and ideological neutrality pursued by the employer in the company concerned, in so far as the principle of proportionality is observed in that regard.
Case law examples
Two cases which started in European countries were looked at recently by the CJEU. In the first one, Achbita v G4S Secure Solutions NV (2017) Belgian branch of the G4S security company had a rule that employees should not wear any visible religious, political or philosophical symbols at work. The company employed a Muslim receptionist who after three years insisted that she should be allowed to wear a hijab. She was dismissed and brought claims for direct and indirect discrimination, and wrongful dismissal. The CJEU decided that this rule amounted to indirect and not direct discrimination and if properly applied could be lawful as long as it was was not based on stereotypes or prejudice against one or more religions, or religious beliefs in general, and was also applied proportionately it could be lawful.
In a second case, Bougnaoui v Micropole Univers (2017), a French case heard by the European court at the same time as the Achbita case, an employee refused to comply with an instruction to remove an Islamic headscarf while visiting a client. The court found that the reason for her discriminatory treatment was simply customer preference and so could not be justified. These cases indicate that an organisation-wide rule applied neutrally and for a good business reason could avoid claims of indirect discrimination in relation to religious dress codes.
In Eweida v British Airways plc  EWCA Civ 80 - a British Airways employee working at Heathrow airport was suspended (and then reinstated) for wearing a Christian cross. In 2008 she lost her employment tribunal claim for religious discrimination. She appealed to the Employment Appeal Tribunal, which upheld the tribunal decision. She claimed she lost approximately £3,500 in wages during the three month suspension before British Airways changed its uniform policy to allow all religious symbols to be worn openly.
The case was referred to the European Court of Human Rights (ECHR) and combined with the three other cases. The ECHR found the UK had failed to protect a worker’s right to manifest religion because whilst the airline’s aim of protecting its image was legitimate, there was no evidence that wearing religious clothing or symbols had a negative impact on its brand. This seems to contradict with the EU position in the Achbida case which decided that banning Islamic headscarves at work was legitimate to protect the employer's image.
In Azmi v Kirklees Metropolitan Borough Council(2007) - the Employment Appeal Tribunal held that it was legitimate for a school to require a Muslim teaching assistant to remove her veil while in class as although this was indirectly discriminatory it was a proportionate means of achieving a legitimate aim which was interacting with and educating the children.
In Noah v Desrosiers t/a Wedge (2008) a Muslim hairdresser was unsuccessful in a job application because she wore a headscarf. She won her indirect religious discrimination claim. The prospective employer argued that hairdressers had to display their own hair to advertise the salon's styles. However, this business aim had to be balanced against the applicant’s belief and the tribunal held that the policy of a ban on women with headscarves was not a proportionate means of achieving this aim.
The case Farrah v Global Luggage Co Ltd (2012) also illustrates the difference between direct and indirect discrimination. An employer with two shops in London, employed a Muslim employee in the Piccadilly shop who did not initially come to work wearing a headscarf; problems arose when she started to do so. She was moved to work in the Oxford Street shop because the employer wanted to retain its 'trendy' image. She ultimately resigned, claiming direct religion or belief discrimination and unfair dismissal.
She won the unfair dismissal claim as she had effectively been told that if she did not resign she would inevitably be dismissed. However she did not win the discrimination claim as she had brought a direct, and not an indirect, discrimination claim.
The employment tribunal found that:
- On the direct discrimination claim there was no evidence that a comparator, namely a woman wearing a headscarf for non-religious reasons, would have been treated any differently. It was the appearance of the headscarf and not the claimant's religion to which the employer objected.
- If the employee had claimed indirect discrimination, the provision, criterion or practice would have been the requirement not to wear a headscarf. Muslim women would have had more difficulty complying with that rule than non-Muslim women and so that claim would have succeeded.
The employee received six months' earnings for the unfair claim with compensation was increased by 25 per cent because the employer failed to follow the Acas Code of practice on disciplinary and grievance procedures.
In Begum v Pedagogy Auras UK Ltd t/a Barley Lane Montessori Day Nursery (2015) - a nursery assistant wore a jilbab, a flowing outer garment which extended from neck to the floor. At her interview, she was asked if she could wear a slightly shorter garment for work, as the longer jilbab was seen as a trip-hazard.
The nursery assistant complained of religious discrimination. The EAT held that the provision, criterion or practice in relating to dress did not put Muslim women at a disadvantage. There was no evidence of a religious requirement to wear a longer floor-length garment, instead of a shorter ankle-length jilbab which would have been acceptable. Alternatively, if the requirement did put Muslim women at a disadvantage, it was justified anyway.
Points to note
To avoid such potentially expensive claims and publicity, employers need to handle such matters very carefully. The starting point is to consider whether a dress code is necessary. It is generally acceptable for an employer to adopt an appearance and dress code to minimise accidents and personal injury claims or to sometimes project the correct image for the organisation. Health and safety reasons such as hygiene in hospitals or restaurants may also justify some clothing requirements.
However, a requirement that employees should not wear religious clothing on the basis that it is not trendy enough and does not fit the image of the company is less likely to be a sufficient justification to ban religious clothing or jewellery.
If the nature of the employer’s business is such that a dress code is necessary, the following should be borne in mind:
- Keep the dress code in the non-contractual section of the employer’s handbook.
- If the dress code is new, give reasonable notice of when it will come into force.
- Explain the reasons behind the dress code.
- Adopt a widely worded dress code which requires smart appearance, with non-binding examples of suitable dress.
- Keep the dress code separate from health and safety policy policies requiring protective clothing.
- Cross-check any dress code against the main religions' clothing beliefs (see the chart in the appendices of Acas guide on Religion or belief and the workplace).
- Cross-check with representatives of a particular religion (if a significant number of employees follow that religion) in drawing up the dress code as this could assist any defence to discrimination claim.
- If an employer has a significant number of employees of a particular religion, it may be worth consulting with representatives of that group (the local mosque, for example) in drawing up the dress code as this could aid any defence to a discrimination claim.
- Keep the dress standard, although employers will not necessarily be discriminatory if there are different requirements for different sexes.
- Watch for potential issues for disabled employees as well.
- Employers will need to demonstrate that the dress code is justified and proportionate and that they have carefully balanced the disadvantage to some groups of the code against the reason for having the code in the first place.
- Employers may believe they have a reasonable business reason for asking employees who are dealing with customers to remove piercings or cover tattoos while at work. Employers must have sound business reasons for requiring these dress codes which should be contained in a policy which communicates the standards are expected equally to everyone.
- If employees refuse to comply, employers should explain their concerns and the reasons for the dress code or requirement. The employee should be given the opportunity to explain why they do not wish to comply. If employees do not conform the disciplinary procedure may be invoked in appropriate cases.
The EHRC also provides information and guidance on dress codes.
Is it indirectly discriminatory to refuse an employee permission to take holiday for a religious holiday?
It is potentially indirectly discriminatory to refuse an employee time off for a religious holiday, but whether it can be justified will depend upon the facts. For example, a small gift shop would be able to justify refusing to release an employee for a religious holiday during the Christmas shopping period. However, a large shop of several hundred employees would not be able to justify such a refusal during that period if other staff were able to cover.
Employers should carefully consider their criteria for granting leave where sufficient holiday leave is available and whether a refusal would indirectly discriminate; discussion and flexibility are crucial when considering such requests.
Case law examples
Two case law examples are given below. Although they were decided before the Equality Act 2010 they remain useful guidance as to how the religious discrimination provisions work in practice.
The first successful discrimination case based upon the Employment Equality (Religion or Belief) Regulations 2003 concerned the issue of religious holidays. In Khan v G and Spencer t/a NIC Hygiene (2005) an employee was awarded over £8,000 in compensation for religious discrimination in breach of the Regulations. He had requested six weeks' leave to perform hajj, a pilgrimage to Mecca, the birthplace of Islam. Carrying out this obligation is one of the five 'pillars of Islam' or central duties of the believer and should be undertaken by every adult Muslim at least once in their lifetime if possible. The employee asked to use his 25-day holiday entitlement and another week's unpaid leave, but he received no response and made a further written request. The company failed to respond and his manager said that if he heard nothing he could assume it was all right. He made that assumption and went on the journey. When he returned he was suspended without pay and then dismissed; this was held to be in breach of the Regulations.
In Fugler v Macmillan-London Hair Studios Ltd (2005) a Jewish employee working in a hairdressers successfully claimed indirect religious discrimination when he was prevented from taking time off for Yom Kippur. This was as a result of the application of the employer’s policy to discourage all employees from taking leave on Saturdays. Although the employer had a legitimate aim to serve customers on the salon’s busiest day, the balancing exercise meant that the employer should have tried to rearrange this employee's duties to accommodate this very important festival.
However, the employee’s compensation was limited in this case to £500 for injury to feelings, as he had not booked time off in advance for Yom Kippur.
Is it indirectly discriminatory to require an employee to work on a certain day for example Sunday?
It may be indirectly discriminatory to require an employee to work on a certain day, for example Sunday. Some case law examples are given below. Although these were decided before the Equality Act 2010, they remain useful guidance as to how the religious discrimination provisions work in practice.
Case law examples
In Williams-Drabble v Pathway Care Solutions Ltd (unreported, Nottingham Employment Tribunal 10 January 2005) it was found that a new shift rota system requiring the claimant (who was a Christian employee) to work on Sunday at times which prevented her from attending church, constituted religious discrimination. She had expressly told the company at her interview that she could not work on Sundays. She also won a constructive unfair dismissal claim as there was a fundamental breach of the employer's implied contractual duty of trust and confidence. She received compensation of £4,000 for injury to feelings and a further £1,001.
Accordingly, religious discrimination claims can succeed when an employee is required to work on a certain day, depending on the overall facts including availability of other staff.
The law is less clear as to whether this will also be a breach of human rights and/or an unfair dismissal. In Copsey v WWB Devon Clays Ltd (2005) this issue was considered by the Court of Appeal. A practising Christian was dismissed for refusing to agree to vary his hours so he could work a 7-day shift including a Sunday. He claimed:
- constructive unfair dismissal alleging the real reason for dismissal was his religion and
- infringement of his freedom to manifest his religious beliefs under Article 9 of the European Convention of Human Rights (ECHR).
The CA held that the employee's freedom to manifest his religious beliefs, under Article 9 of the ECHR was not infringed by his dismissal for refusal to agree to Sunday working. On these facts the employer had not failed to make reasonable accommodation for the employee's religious beliefs.
By contrast, in Mba v The Mayor and Burgesses of the London Borough of Merton  the EAT ruled that a council did not unlawfully discriminate against a devout Christian when it asked her to work on Sundays at a residential home for children with severe learning difficulties. At the recruitment stage, the manager had explained to the claimant that all staff had to work a shift rota that included weekends and she replied that she would have 'difficulties' working on Sundays. She 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 employer 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 EAT held that the employer had applied a provision, criterion or practice to the claimant, namely the working of some Sunday shifts in accordance with the rota. This would put persons of the same religion as the claimant at a particular disadvantage when compared with others and that she was put at such a disadvantage.
However, the employer succeeded in showing that the requirement was reasonable and a proportionate means of achieving a legitimate aim. It 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. Interestingly, the tribunal also concluded that the belief about Sunday working was not a core component of the Christian faith and also found that the employer had not breached the implied term of trust and confidence and therefore there was no constructive unfair dismissal.
The EAT judgment does not make an overall ruling about an individual's right not to work on a Sunday or an employer's freedom to insist upon Sunday working. In this particular case, the employer had established a legitimate aim, as it appeared that there was no viable alternative to working on Sundays.
These cases suggest that the law on this point may be open to further challenge. In any event it is very clear that employers must try to minimise the impact of changes to working hours on employees who hold strong religious beliefs (for example by offering alternative jobs where they can).
Can an employer discipline an employee who tries to convert another employee to their religion?
Basically employees should not be forced to keep their religion hidden at work. However they should not try to convince others to 'convert' or change their religious beliefs.
If one employee tries to convert another employee, this is usually inappropriate and the employer should intervene.
Generally, disciplining an employee for manifesting a religious belief would be unlawful discrimination. However disciplining an employee for improperly promoting religious belief in a way that was not consensual is not unlawful discrimination. The employee who is attempting to convert others may be committing misconduct, leading to disciplinary proceedings against them, depending upon the content of the conversations and the pressure to try and convert others.
The issues can be illustrated by the case of Wasteney v East London Foundation NHS Trust (2016) where a born again Christian manager working for a NHS trust had prayed with a junior Muslim employee, then laid on hands, donated a book which concerned the conversion to Christianity of a Muslim woman and invited her to various services and events at her own church. This was unwanted attention and the junior employee complained.
The Trust found the manager guilty of serious misconduct by subjecting a junior colleague to improper pressure and unwanted conduct and was given a formal warning. She claimed unlawful religious discrimination and harassment. The Employment Appeal Tribunal and the employment tribunal rejected those claims. Even though Article 9.1 of the European Convention on Human Rights gives freedom of thought, conscience and religion this did not give employees a complete and unfettered right to discuss or act on their religious beliefs at work irrespective of the views of others. In any case Article 9.2 of the European Convention on Human Rights takes into account the rights and freedoms of others.
Can a religious or belief discrimination claim arise if the employer was entirely ignorant of the employee’s belief?
If the employer was entirely ignorant of the employee’s belief, the claim will not succeed. Treatment cannot be on the grounds of the employee's religion or belief if the employer had no knowledge of it. Interestingly it does not appear to matter if the employee has taken some actions or activities which appear to be contrary to their beliefs. The tribunals have acknowledged that many people have to compromise over their belief at some point in their lives and cannot fight each and every battle.
In the case Streatfeild v London Philharmonic Orchestra Ltd (2012) a violinist with the London Philharmonic Orchestra put her name on a letter sent to a newspaper, criticising an invitation to the Israel Philharmonic Orchestra to perform at the 2011 Proms. She did this because of her humanitarian views of the Israeli Government and their persecution of Palestinians. She used the letters 'LPO' which linked her to the orchestra. She was disciplined and then suspended on full pay for six months on the basis that she had publicly criticised her employer in a national newspaper, causing serious damage to the LPO's reputation. She brought claims of direct discrimination, victimisation and harassment on the ground of her 'philosophical belief in humanism'.
The case decided three major points:
- Unsurprisingly, humanism amounted to a philosophical belief under the Equality Act 2010.
- Did the claimant have a genuine belief in humanism? The employment tribunal concluded that her education and choice of partner and how she educated her children all suggested a genuine and strongly held belief. There were examples of her acting inconsistently, such as agreeing to go on tours to China and playing with the Israel Philharmonic Orchestra. However, the tribunal accepted some compromise over belief as being inevitable.
- Did the employer have knowledge of the employee’s beliefs? Apart from one reference to a humanitarian motivation, nothing emerged in the disciplinary process to suggest to the LPO that the claimant had humanist views. As the employer did not know of her beliefs she lost her claim.
How does an employer decide if an employee’s actions or behaviour are really required by their religion?
This topic covers situations where the employee asserts that they are manifesting their religious belief in various ways. For example employees may seek permission to wear certain symbols or forms of dress, time off work for prayers or festivals, or changed work duties to meet religious or belief needs. An employer does not have to decide if these actions or behaviour are really required by an employee's religion. An employee may be protected even if the religion does not require them to act as they do. Employees are protected if they decide to follow a practice motivated, influenced or inspired by their religion or belief. As long as the practice is sufficiently linked to the religion or belief it will be protected, regardless of whether it is a mandatory requirement of that religion or belief.
Until the leading cases outlined below, the European Court of Human Rights (ECHR) and the domestic courts said that a practice was protected only if it was required by the particular religion or belief. This is no longer so. The leading cases, Eweida and others v UK (2013), which were heard by the ECHR were brought by Christians in the UK. However, the implications of the judgments apply to employees with any religion or belief, or none.
Eweida and another complainant were both prevented by their employers’ dress codes from wearing crucifixes. In Eweida’s case, the EHRC decided that her Article 9 right to manifest her belief was unjustifiably breached by her employer and her wearing a visible cross did not adversely affect the employer’s corporate image.
In another of the cases, the EHRC unanimously concluded that the health and safety of staff and patients outweighed a nurse’s right to wear a visible crucifix on a chain around her neck. The other two cases involved a counsellor and registrar who refused work duties involving same sex couples.
The EHRC decided against all three. The UK courts had wide discretion to strike a balance between competing Convention rights. Although the loss of a job had grave consequences, the wide discretion to determine the right balance between manifesting religious belief and sexual orientation rights had not been exceeded.
The Equality and Human Rights Commission has published guidance explaining how employers can recognise and manage the expression of religion or belief in the workplace whilst complying with these judgments.
Questioning an employee's beliefs
An employer should not question a belief except in the most extreme cases where the sincerity of the belief of an employee is genuinely in doubt. Employers do not need to be experts in the relevant religion or belief. It will usually be obvious where beliefs appear unreasonable.
Can an employer justify discriminating against an employee on the grounds of their religion or belief at all?
If the claim is for direct discrimination there is no such defence. There is a general defence in The Equality Act which allows an employer to show that they have taken all reasonable steps to prevent an act or any similar acts of discrimination taking place. It requires the employer to show what preventative measures were in place and these should be robust and well-trodden (see Caniffe v East Riding of Yorkshire Council, 2000).
Employers can defend direct discrimination claims if they can show that the reason for the treatment was not on the grounds of the employee’s religion or belief.
Case law also shows that claims for indirect discrimination can be defeated with a justification defence. Claims based around manifestation can be avoided where the manifestation is not consistent with the aims of a democratic society.
Employers can also avoid discrimination in recruitment and employment by showing that there is an occupational requirement for a person of a particular religion or belief to fill a certain post, in which case they may be able to rely on that reason. This is regarded as an exception rather than a statutory defence.
The employer would have to show that:
- being of a particular religion was an occupational requirement
- it was a proportionate means of achieving a legitimate aim to apply that requirement in the particular case.
The requirement must be crucial to the post. An example given by Acas is that a butcher seeking a halal butcher would be entitled to discriminate against non-Muslims and this would amount to an occupational requirement.
The Equality Act’s occupational requirement provisions also allow for an employer whose function is of an organised religion to refuse to employ persons who are of a particular sex or are transsexual or of same sex orientation. There must be a cogent reason linked to the ethos of the organisation for this exception to be valid.
Case law examples
Below are some case law examples under legislation which pre-dates the Equality Act 2010, but which remain useful guidance as to how the religious discrimination provisions work in practice:
Occupational Requirement: In Sheridan v Prospects for People with Learning Disabilities and Hender v Prospects for People with Learning Difficulties(2006) the employer, a Christian charity which helped adults with learning difficulties, failed to establish a genuine occupation requirement exception. The charity required most of its staff (with the exception of some administrative positions) to be practising Christians. Existing non-Christian employees were told that they would not be promoted. Two employees resigned and claimed constructive unfair dismissal and religious discrimination. Being a Christian was not a genuine occupational requirement of working for the charity as the jobs could be carried out by individuals not of that religion.
Indirect Discrimination: In Mayruff v The Governing Body of Bishop Challoner Catholic Collegiate School and another (2005) an employer established that a school’s timetabling requirement was a proportionate means of achieving a legitimate aim. The mathematics teacher therefore lost his claim of religious discrimination concerning the timetabling of a class between 1.20 and 2.10pm on a Friday afternoon. The teacher claimed that this was discriminatory as it meant he could not attend Friday prayers in a mosque. The school successfully justified their timetabling requirement on the basis that the absence of the teacher on a weekly basis would be disruptive and damaging to the students’ interests.
In Cherfi v G4S Security Services Ltd (2011), which concerned taking time off to attend a mosque, the Employment Appeal Tribunal decided that the employer could justify its refusal to allow a Muslim security guard to leave the site to attend prayers. The guard left the site where he worked at Friday lunchtimes for about an hour, to attend the mosque. Eventually a new manager told him that the client required attendance all day, including during lunch breaks or they may lose the security contract. There was a prayer room on site available for the guard to use. The employer offered a new shift pattern so that he could work Monday to Thursday and then either Saturday or Sunday, but he refused this. After the discussions, the guard took every Friday as sick leave or paid or unpaid annual leave and when the employer disciplined him, he left, claiming direct and indirect religious discrimination.
He won one claim of direct discrimination owing to the way the disciplinary action was handled. However, the indirect discrimination claim failed. Although the employer had applied a provision, criterion or practice to the guard which placed him at a disadvantage as a practising Muslim, this was justified as a proportionate means of achieving a legitimate aim, namely the operational needs of the employer’s business.
For more information on justifying or defending discrimination claims see our Sex discrimination Q&As.
Is there scope for conflict between sexual orientation and religious and belief discrimination?
There is scope for potential conflict between the sexual orientation and religion or belief protected characteristics under the Equality Act 2010. For example, what happens if a person with strong religious views is sacked for objecting, in accordance with the religious convictions of a significant number of that religion's followers, to working alongside a gay man? There have been a number of tribunal cases stemming from difficulties arising between employers and employees with strongly held religious beliefs and other employees.
Although all employees have the right to freedom of expression in the workplace, employers must attempt to ensure that the working environment is not dominated by any particular view and that the atmosphere in the workplace is conducive to the aims of the employer’s business. The courts have often been required to decide whether the rights and beliefs of a religious group in a workplace should `trump` those of a particular sex orientation as outlined in the cases of Page, McFarlane and Ladele (see Religious discrimination case law)
Religious and belief discrimination claims can arise from matters related to sex and sexuality in ways that employers may not have considered. For example in Pendleton v Derbyshire County Council (2016) the Employment Appeal Tribunal held that it was potential indirect religious discrimination to dismiss a teacher for refusing to leave her husband.
The teacher had many years of good service. Her husband, a headteacher at another school, was convicted for sex offences, including making indecent images of children and voyeurism. The school dismissed the teacher for failing to end the marriage, as it felt her actions could be taken as condoning his behaviour. The teacher decided to stay with her husband provided he showed repentance, as her Christian faith meant that she regarded her marriage vows as sacred.
The teacher won an unfair dismissal claim as the school failed to show that the dismissal was for gross misconduct or some other substantial reason. Her claim for indirect religious discrimination was also upheld.
What can an employer do when an employee refuses to undertake certain work duties altogether for religious reasons?
If an employee refuses to carry out certain work duties for religious reasons, it is once again a question to be assessed on the facts and also is a question of degree. An employer should carefully consider every request from an employee to opt out of a part of their job requirements for religious reasons. If the employee is required to do something they believe will be discriminatory, they will be asserting that the requirement to do the job in a certain way amounts to indirect discrimination
The employer should consider:
- the reason for the refusal and why the employee believes it is linked to their religion or belief or a manifestation of their religion or belief
- how significant a part of the job the employee wishes to opt out of
- whether other employees can cover for the employee making the request so that it does not affect the effectiveness of the organisation
- the impact on the employee
- the impact on the employer and the service offered by the organisation
- whether there is any other work the employee can undertake instead.
Do different rules apply if an employer is a school with a religious character and wishes to employ a teacher with certain religious beliefs?
Yes, this situation is catered for under different regulations. The Independent Schools (Employment of Teachers in Schools with a Religious Character) Regulations 2003 (SI 2003/2037) enable independent schools with a religious character to give preference to teachers whose religious beliefs accord with the religious tenets on which the school is based.
The government decided in July 2018 not to go ahead with an option to add caste to the definition of race as a ‘protected characteristic’ under the Equality Act 2010 and, instead, to rely on case law on this point. The EAT decided, in the case Tirkey v Chandhok (2015), that the Act’s definition of race discrimination already covered caste where this relates to ethnic origin. The case is binding on tribunals.
For information on what Brexit could mean for employment law, visit our Brexit hub. This area of employment discrimination law is definitely one to watch out for post-Brexit as many established principles have arisen from human rights or European Convention rights and allied case law. It remains to be seen whether these rights will be preserved in the future.