Religious discrimination in employment
Chapter 4
Religious discrimination in employment
This chapter deals with the Employment Equality (Religion or Belief) Regulations 2003, except for reg 5 (Harassment), which is dealt with in Chapter 6 and regs 20 and 39, which involve educational establishments and are dealt with in Chapter 5.
Legislation prohibiting racial and sexual discrimination in employment has existed since 1976 but until the passage of the Employment Equality (Religion or Belief) Regulations 2003 there was no specific British legislation prohibiting discrimination on the grounds of religion or belief. There has, however, been such legislation in Northern Ireland for many years because of the unique political situation there.
Prior to the 2003 regulations, only members of the Sikh and Jewish religions were protected from discrimination in employment, since Sikhs and Jews are classified as races as well as being members of a religion: Mandla v Dowell Lee [1983] ICR 385 and Seid v Gillette Industries Ltd [1980] IRLR 427. In addition, it was possible, in some cases, to use the Race Relations Act 1976 to protect aspects of religion if it could be shown that a particular employment practice, albeit principally hitting at religion, would nevertheless have a disproportionate influence on people of particular racial background. For example, in Hussain v Midland Cosmetic Sales EAT/915/00 the Employment Appeal Tribunal decided that refusing to allow a Pakistani woman to wear an Islamic hijab constituted indirect racial discrimination. However, in the cases of Ahmad v United Kingdom [1981] 4 EHRR and Copsey v Devon Clays [2005] EWCA Civ 932, attempts to use Art 9 of the European Convention on Human Rights (Chapter 2) so as to force employers to give time off on Friday for Muslim prayers (Ahmad) or to protect a Christian employee (Copsey) who refused to work on a Sunday were unsuccessful.
On 27 November 2000 in Directive 2000/78/EC, the European Union adopted a directive on equal treatment in employment and occupation which, amongst other things, prohibited discrimination ‘on grounds of religion or belief’. Following this, the government introduced the 2003 regulations to outlaw religious discrimination in the workplace. The outline of the regulations is broadly similar to existing legislation outlawing discrimination on the grounds of race and sex; however, the regulations apply solely to the workplace. Further provisions outlawing religious discrimination in goods and services were introduced in Pt 2 of the Equality Act 2006 and those provisions are considered separately in Chapter 3.
General principles
In principle, the regulations are simple and follow existing well-accepted legislation banning discrimination on the basis of race or sex. Therefore, if someone applies for, or has, a job they should not be discriminated against just because they are a Muslim, a Christian or a member of any other religion. There are, however, exemptions for specifically religious posts, such as priests, or for employers who can claim that for a particular post there is a ‘genuine occupational requirement’ (GOR) which justifies restricting employment to members of a particular religion.
The basis of the regulations is protection of persons who hold a particular ‘religion or belief’ which is defined in reg 2 as meaning ‘any religion, religious belief, or similar philosophical belief’. This definition will be altered by s 77 of the Equality Act 2006, which will introduce the following definition of religion and belief into reg 2:
(a) ‘religion’ means any religion,
(b) ‘belief’ means any religious or philosophical belief,
(c) a reference to religion includes a reference to lack of religion, and
(d) a reference to belief includes a reference to lack of belief.
Whether this new definition introduces any significant change is considered in Chapter 3. The old definition was considered by an employment tribunal in the case of Baggs v Fudge ET case No 1400114/05, where a member of the British National Party (BNP), who had been sacked because of his involvement with the BNP, claimed that this constituted discrimination on grounds of belief and was therefore contrary to the 2003 regulations. His claim was rejected by the tribunal chairman, who stated in para 8 of his judgment: ‘The BNP is not a religion, or a set of religious beliefs, or a set of similar (which I take to be similar to religious) beliefs.’ It is perhaps worth noting that s 3 of the Fair Employment and Treatment (Northern Ireland) Order 1998 provides explicit protection for political as well as religious views:
3.—(1) In this Order ‘discrimination’ means—
(a) discrimination on the ground of religious belief or political opinion;
subject to the following caveat:
2(4) In this Order any reference to a person’s political opinion does not include an opinion which consists of or includes approval or acceptance of the use of violence for political ends connected with the affairs of Northern Ireland, including the use of violence for the purpose of putting the public or any section of the public in fear.
It can therefore be argued that the fact that the 2003 regulations do not include a similar specific reference to political opinion indicates that Parliament did not intend political beliefs to be protected.
Regulation 3 of the regulations defines discrimination as follows:
3(1) For the purposes of these Regulations, a person (‘A’) discriminates against another person (‘B’) if—
(a) on grounds of religion or belief, A treats B less favourably than he treats or would treat other persons; or
(b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same religion or belief as B, but—
(i) which puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons,
(ii) which puts B at that disadvantage, and
(iii) which A cannot show to be a proportionate means of achieving a legitimate aim.
This covers less favourable treatment on the grounds of a person’s actual religion or belief and also treatment based on the discriminator’s perception of a person’s religion (which may be mistaken). For example, let us say an employer A receives an application form from B in the name Joseph Smith and A jumps to the assumption that B is a Mormon and rejects the application because he does not want to employ a Mormon; as it happens, B is a Roman Catholic and not a Mormon, but he has still been discriminated against on the basis of religion even though the discrimination is based on a mistaken assumption.
The anti-discrimination provisions also apply to a person’s associations with people of a particular religion or belief, since that will involve discrimination based on ‘grounds of religion or belief’. This is made explicit by s 77(2) of the Equality Act 2006, which will change the wording of reg 3(1)(a) to state the following:
3(1) For the purposes of these Regulations, a person (‘A’) discriminates against another person (‘B’) if—
(a) on the grounds of the religion or belief of B or of any other person except A (whether or not it is also A’s religion or belief) A treats B less favourably than he treats or would treat other persons …
Therefore, if a Muslim employer was to sack a Muslim employee because her son had converted to Christianity, that would constitute unlawful discrimination contrary to the 2003 regulations even though the motivation is the religion of the employee’s son and not the religion of the employee herself. This follows existing principles which are already established in race discrimination law.
It is also possible to be guilty of discrimination against members of the same religion as oneself. For example, if a Hindu employer (A) refused to employ a fellow Hindu (B) of a lower caste and instead offered the job to C, who was a Hindu of a higher caste, then that would be unlawful discrimination against B even though A, B and C were all members of the same religion.
It is fair to say direct discrimination is relatively easy to recognise and deal with and for that reason is the least common form of discrimination. There are no examples of advertisements which say ‘no blacks or Irish need apply’ these days, and quite rightly too, but there are still many claims of racial discrimination. The vast majority of such claims are brought on the grounds of indirect discrimination and it is likely that the majority of claims of religious discrimination will also be brought on the grounds of indirect discrimination as set out in reg 3(1)(b). An example of such a possible indirect discrimination is given in the ACAS guidance on the regulations, para 1.3:
Example: An organisation has a dress code which states that men may not wear ponytails. This may indirectly disadvantage Hindu men, some of whom wear a shika (a small knotted tuft of hair worn at the back of the head, as a symbol of their belief). Such a policy could be discriminatory if it cannot be justified.
Another example is given in the guidance on the regulations issued by the Muslim Council of Britain in 2005, para 3.4:
A company introduces a uniform which does not permit head coverings of any type and requires all female employees to wear knee-length skirts. This applies to all employees equally but disadvantages female Muslim employees who choose to wear the hijab or long skirts.
However, whilst direct discrimination in employment is illegal, unless a general occupational requirement applies, indirect discrimination is legal provided that the employer can show that it is a ‘proportionate means of achieving a legitimate end’, i.e. the employer has a real business requirement and the action is within the limits of what is necessary to achieve that business need. For example, if a mosque was to employ a cleaner or caretaker, it might want to insist that the person appointed did not own a dog; this would be because Islam regards dogs as unclean and the mosque authorities would want to ensure that no dog hairs were brought into the mosque. Such a requirement could be regarded as indirectly discriminatory but can be defended as necessary to ‘achieve a legitimate end’, namely to ensure that the purity of the mosque was not contaminated.
The ACAS guidance, para 1.4, gives a good example of a requirement which could constitute indirect discrimination but which could be justified:
A small finance company needs its staff to work late on a Friday afternoon to analyse stock prices in the American finance market. The figures arrive late on Friday because of the global time differences. During the winter months some staff would like to be released early on Friday afternoon in order to be home before nightfall – a requirement of their religion. They propose to make the time up later during the remainder of the week. The company is not able to agree to this request because the American figures are necessary to the business, they need to be worked on immediately and the company is too small to have anyone else able to do the work. The requirement to work on Friday afternoon is not unlawful discrimination as it meets a legitimate business aim and there is no alternative means available.
And the MCB guidance, para 3.5, gives another example:
A small toy shop employs four staff. Two Muslim employees request time off for Eid-ul-Fitr in the busy pre-Christmas period. However, the toy shop requires all four staff to work during that period. It would be justifiable to refuse such a request if the shop could not cope without them.
The MCB example pinpoints the issue of ‘proportionate means’, what may be an acceptable requirement in a small business may be unacceptable in a large business. To take the toy shop example again, if this was the toy department in a large department store and there was only one Muslim employee asking for time off to celebrate Eid then a refusal to allow him any time off in the pre-Christmas period might be diffcult to justify.
Another likely ground of claims of unfair discrimination is how a vacancy is advertised. Where a vacancy is filled by word of mouth or by advertising on a church noticeboard there is always the risk of discrimination being alleged. If an employer advertised only by noticeboard in a pub, he would be indirectly discriminating against Muslims and Mormons, who do not drink alcohol. Similarly, an Indian restaurant that advertised for staff only in the Muslim Weekly could be alleged to be discriminating against Indian chefs who are Hindu or Sikh; however, it would be acceptable to advertise in both the Muslim Weekly and a more general Asian community newspaper. Interview questions on mosque, or church attendance, or whether an applicant’s children attend a particular faith school could similarly be regarded as evidence of discrimination.
Rules that a person cannot have a beard or cannot cover his head could be said to be indirectly discriminatory against those who are required to have a beard or cover their head as part of their religious beliefs; however, cases decided under the Race Relations Act 1976 in relation to beards already demonstrate the type of approach tribunals should take. In Panesar v Nestlé Co Ltd [1980] IRLR 64, a Sikh was refused a job in a chocolate factory because he would not shave off his beard. In that case the employer’s justification for its policy was based on expert evidence about hygiene and succeeded and a similar claim and defence under the religion or belief regulations would be likely to have the same result. However, an employer would have to demonstrate that there is no proportionate means of dealing with the hygiene issue other than to ban beards; for example, had the employer considered if a beard could be covered during working hours.
Time off work in order to attend religious requirements is a contentious and complex area. When the Court of Appeal case of Copsey v Devon Clays [2005] EWCA Civ 932 was decided, it was widely interpreted as having decided that Christian employees had absolutely no right to have Sunday as a day of rest. However, the case was not brought under the 2003 regulations but under Art 9 of the European Convention on Human Rights (Chapter 2) and the court merely decided that Art 9 did not apply to private contracts of employment. In para 8(3) of the judgment Lord Justice Mummery pointed this out and made it clear that the question could have been decided differently had it been possible to bring it under the 2003 regulations:
Although discrimination points occasionally surfaced in the course of argument, this is not a case of direct or indirect discrimination on religious grounds. The Originating Application does not mention discrimination of any kind. The claims set out are for unfair dismissal, breach of Convention rights Articles 8 and 9 and failure to make ‘reasonable accommodation’ for his religious beliefs regarding Sunday as ‘a day of rest in remembrance of the Lord Jesus’. No claim for discrimination on the ground of religion or belief could have been brought by Mr Copsey under the Employment Equality (Religion or Belief) Regulations 2003, which only came into force on 2 December 2003 after the relevant events in this case had occurred.
In the case Mr Copsey had refused to accept changes to his working arrangements which would have required him to work on a Sunday and he had also refused to accept alternative work arrangements which would have given him Sunday off but which would have reduced his wages. Though the case did not involve a claim of discrimination, the following extracts from the judgment are worth noting and may provide guidance to tribunals considering claims of religious discrimination relating to holy days. Lord Justice Rix said (paras 68, 69, 71):
68. Nevertheless, the concept of reasonable accommodation is not foreign to either Convention jurisprudence or English law: see Ahmad v. ILEA and Ahmad v. United Kingdom. And, irrespective of article 9, the concept of unfairness in the law of unfair dismissal is inherent in English employment law, now covered by the Employment Rights Act 1996.
69. I would therefore prefer to say, limiting myself to the facts of this case, that, where an employer seeks to change the working hours and terms of his contract of employment with his employee in such a way as to interfere materially with the employee’s right to manifest his religion, then article 9(1) of the Convention is potentially engaged. One solution is to find a reasonable accommodation with the employee. If this is found, then there will in the event be no material interference. If a reasonable solution is offered to the employee, but not accepted by him, then I think it remains possible to say that there is no material interference
71. It seems to me that it is possible and necessary to contemplate that an employer who seeks to change an employee’s working hours so as to prevent that employee from practising his sincere adherence to the requirements of his religion in the way of Sabbath observance may be acting unfairly if he makes no attempt to accommodate his employee’s needs. I cannot conceive that a decent employer would not attempt to do so.
Whilst Lord Justice Neuberger said (paras 87, 88, 95, 96):
87. At one extreme, might be a case where an employee is engaged specifically on the basis that he will work on a Sunday, and he subsequently comes to believe in a religion that prevents him working on a Sunday, and where the employer has always reasonably required an employee with his particular skills to work on a Sunday, and where there are no other appropriately skilled employees who could work in his place on a Sunday. It might be unfair for the employer to dismiss the employee, even in such a case, without taking any steps to see if the employee’s newly acquired religious beliefs could be accommodated. However, I would have thought that it would require pretty exceptional additional facts before the employer could be held to have unfairly dismissed the employee in such a case.
88. At the other extreme, might be a case where an employee starts his employment on the specific basis that he will not have to work on a Sunday because of his religious beliefs, where the employer subsequently requires him to work on a Sunday, and where the employee is able to identify another worker, with his particular skills, who would be prepared to work in his place on a Sunday. In such a case, it would be hard, at least in my view, to see, at least in the absence of further facts, how the employer could challenge his dismissal of the employee as unfair if it was on the basis that he would not work on a Sunday, even if the terms of his contract permitted a variation on the part of the employer so that there was no breach of contract in his requiring the employee to work on a Sunday.
95. In summary, the essential findings of the Employment Tribunal were as follows. Devon Clays were reasonable in initially requiring Mr Copsey to work on some (but by no means all) Sundays, owing to changes in demands for their products. They then did their best to accommodate his requirement not to work on any Sundays. This was initially successful, but it then led to diffculties, not least because of dissatisfaction among other employees. Devon Clays then offered Mr Copsey an arrangement which would have minimised his Sunday working, and, subsequently, a new (admittedly less well-paid) post which would have avoided any Sunday working.
96. The view of the Tribunal was that Devon Clays had done everything they reasonably could have done or could have been expected to do, in the particular circumstances of the case, to accommodate Mr Copsey’s desire not to work on Sundays. I do not think that it is inaccurate to say that, if the Employment Tribunal thought anyone had acted unreasonably in this case, it was Mr Copsey. These were, as I have said, clear findings which were open to the Tribunal to make, and which justified their conclusion.
Therefore, under the regulations an employer must consider properly any application to take time off for religious festivals or not to work on specific days. Requests can be refused but any refusal must be on reasonable grounds and based on the needs of the business. If the employee’s request can be accommodated within the reasonable requirements of the business then the request should be granted. However, an employee must also be prepared to compromise to meet the legitimate needs of the business and should bear in mind the comments of Lord Hoffmann in Begum v Denbigh High School [2006] UKHL 15, para 50:
Article 9 does not require that one should be allowed to manifest one’s religion at any time and place of one’s own choosing … people sometimes have to suffer some inconvenience for their beliefs.
Even though that comment related to a claim under Art 9 and not to a claim under the 2003 regulations, it nevertheless sets out a principle which should be borne in mind by a tribunal considering a claim under the regulations.
As was pointed out by Lord Justice Neuberger in Copsey v Devon Clays [2005] EWCA Civ 932, decisions on discrimination may vary depending on the nature of the job and whether the religious problem arises because of a change in religion by the employee or because of a job change introduced by the employer. For example, if a Muslim or a Mormon applicant (A) goes for a job interview in a small shop which sells alcohol then A cannot claim religious discrimination if he is turned down for the job because he refuses to have anything to do with alcohol. However, if A is an employee in a shop which has not formerly sold alcohol but which obtains a licence to do so, then the employer must have regard to any religious objections A may have and see whether these objections can be accommodated. If, however, the shop has always sold alcohol and A is a long-term employee who refuses to serve alcohol following a religious conversion, then A is in a much weaker position; as Lord Justice Neuberger said in para 87 of Copsey v Devon Clays [2005] EWCA Civ 932:
It might be unfair for the employer to dismiss the employee, even in such a case, without taking any steps to see if the employee’s newly acquired religious beliefs could be accommodated. However, I would have thought that it would require pretty exceptional additional facts before the employer could be held to have unfairly dismissed the employee in such a case.
A particular problem with the wording of the regulations is that they do not appear to require the employer to have any knowledge of the particular requirements of a religion before a practice can be held to be discriminatory. This problem is demonstrated by an example given in para 4.2 of the MCB guidance:
Be aware that certain routine conduct at interviews may conflict with acceptable practice according to the applicant’s religion or belief, such as shaking hands with the opposite sex.
Example: An employer at an interview puts his hand out to shake the interviewee’s hand who is a Muslim lady. She refuses to do so. The employer does not understand why and considers her to be extremely rude, which affects her application. Employers could instead wait for the employee to initiate the handshake if they are unsure.
The diffculty with this example is that it assumes that an employer should be expected to be a mind reader and fails to accept that actually the woman in question is in fact being rude, because she is refusing to acknowledge a greeting without giving any explanation for her behaviour. If an employer (A) knows that the religious beliefs of a potential employee (B) prohibit her from shaking hands with males, then it would indeed constitute discrimination for A to insist that B shake hands; similarly, it would be discrimination for A to hold it against B because she does not shake hands or for him to describe her in a reference as ‘unfriendly’. However, if A does not know, and B does not tell him that her religious beliefs prohibit her from shaking hands, then A would not be discriminating against B by considering that she was rude in refusing, without explanation, to shake hands. In that case the problem would not arise because of prejudice against the religion or beliefs of B but because of her failure to explain that her actions arise from her religious beliefs.
It is important for employers, employees and tribunals to recognise that allegations of discrimination cannot be looked at solely from the point of view of the person who alleges that they have been discriminated against. It is virtually impossible to organise any workplace or any workplace event in a way that is completely satisfactory to every conceivable religious belief. To take one example, it could be said that to have an offce event in which alcohol is served would be discriminatory against Muslims who do not drink alcohol, and the MCB do indeed give such an example, in para 4.2 of their guidance. However, serving alcohol is not specifically discriminatory only to Muslims, many Evangelical Protestants abstain from alcohol, as do Mormons, Roman Catholic ‘Pioneers’ and teetotal atheists. To have an event in which alcohol is not served but tea or coffee are served instead would be acceptable to Muslims but would still discriminate against Mormons, who refrain from drinking tea and coffee as well as alcohol. Similarly, to suggest that works canteens must serve halal meat in order to avoid discrimination against Muslims ignores the fact that serving only halal meat would itself be discriminatory to Sikhs (who are forbidden to eat halal meat), to Evangelical Christians (because halal slaughter involves a prayer to Allah) and also to persons of any religion, or none, who consider that halal slaughter is unnecessarily cruel; to serve halal beef is discriminatory to Hindus, and to serve meat of any sort is discriminatory to Jains, Khalsa Sikhs and Buddhists.
Therefore, though an employer does have to provide religiously acceptable options in food either at a works event or in a works canteen, it is not necessary for an employer to provide for every conceivable variation of belief and taste because it would not be realistic to do so. Provided that non-alcoholic beverages are available as well as alcohol, and that a vegetarian alternative is being served when meat is non-halal, there should be no basis for a claim of religious discrimination. However, it would be important for an employer to ensure that employees are not mocked because they are not drinking alcohol or choose the vegetarian option because such behaviour could constitute discrimination and harassment.
The type of practice which would probably be regarded as indirectly discriminatory and not accepted as being proportionate could be where an employer insisted that all job interviews take place on a Friday afternoon. Such a requirement would discriminate against Muslims who attend mosque on Friday afternoon and who would therefore be unable to attend the interview and, unless there was an extremely good reason why the interviews had to be on Friday afternoon, it would be reasonable and proportionate for an employer to offer a choice of dates.
In essence, proportionality means a balance between what is the alleged discriminatory effect and the importance of the aim pursued. The more important the reason is for any alleged discriminatory practice, the more likely it is to be proportionate. Let us say, for example, that an employer requires all female staff to wear a particular uniform and an employee alleges that the uniform is indirectly discriminatory to Muslim women who wish to wear a hijab. For many types of employment a uniform is simply created in order to establish a core identity and to ensure common standards of dress and in those circumstances it would be reasonable to require that any hijab worn by a Muslim employee was in the uniform colours but it would not be proportionate to prevent Muslim employees wearing a hijab altogether. However, if the employment is in a uniformed public sector organisation such as the police then different factors may have to be considered.