Religion or belief discrimination


Religion or belief discrimination

Religion or belief discrimination cases are often not straightforward as it is rare for employers to openly treat people differently because of their religion. Therefore, it is the task of an employment tribunal to decide whether the real reason for different or unfair treatment was in fact, religion or belief. The governing legislation is under the Equality Act 2010 (the “Act”).

What is religion or belief discrimination?

Religious or belief discrimination is where you are treated unequally because of your religion or belief, your perceived religion/belief or the religion/belief of someone with whom you associate. The Act has deemed that religion and belief are ‘protected characteristics’ and, accordingly, religious or belief discrimination is unlawful. Therefore, the law is designed to protect employees and workers of any religion or belief during all aspects of employment.

Religion or belief discrimination can arise in any of four ways:

  • direct discrimination
  • indirect discrimination
  • harassment
  • victimisation

Such discrimination can apply at interview stage, in the terms upon which you are being offered employment (or indeed whether you are offered employment at all), in promotion and transfer opportunities, when being dismissed or subjected to any other detriment.

Direct discrimination

A person discriminates against another by treating that other less favourably than another person. Where such discrimination is on the grounds of religion or belief, it is unlawful.

You can be discriminated against because of your own religion/belief, your perceived religion/belief or the religion/belief of someone with whom you associate. For example, if your employer treats you unfavourably because it thinks you are a Muslim, when you are actually a Sikh.

This apparently straightforward position often, however, creates difficulty for tribunals. Employers will almost always deny that the alleged discrimination had anything to do with religion/belief. In this situation the tribunal has to find the true and effective reason for the employer’s action. The motive of an employer is irrelevant and the defence of justification is not available for direct discrimination.

Indirect discrimination

Indirect discrimination is where an employer operates a policy which, on the face of it, has nothing to do with religion/belief but in practice the effect is to disadvantage those who hold a particular religion/belief. An employer discriminates against an employee when it applies a policy which applies to all workers, but which:

  • puts or would put persons from one religious group (or group with a specific religious or philosophical belief) at a particular disadvantage when compared to other persons;
  • which cannot be shown to be a proportionate means of achieving a legitimate aim.

An example of indirect discrimination is that all male members of staff must be clean shaven, which puts members of certain religious sects at a disadvantage.

Indirect racial discrimination can under the legislation be “objectively justified”, however the onus is on the employer to prove that the discrimination is a “proportionate means of achieving a legitimate aim”.  The legislation provides for specific situations in which religious discrimination in the employment field is allowed, for example if someone from a specific religion is needed to promote the welfare of youngsters within that religion.

Harassment

Harassment occurs when, on the grounds of religion or belief, the harasser engages in unwanted conduct which has the purpose or effect of (a) violating the victim’s dignity or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim. Conduct shall be regarded as having the effect of violating someone’s dignity or creating an intimidating environment only if in all the circumstances, including the victim’s perception, it could reasonably be seen as having that effect.

Therefore, the definition of harassment is wide enough to include most types of harassment including abusive language, excessive monitoring of work, excessive criticism of someone’s work etc. However, the concept of the victim’s ‘reasonableness’ may in some cases make it difficult to win such cases.

It is possible to claim harassment even where it is not directed at the claimant personally. For example, a non-religious employee can claim under this heading if he has witnessed and been offended by the harassment of a Jewish colleague.

Additionally, the Equality Act has deemed that the employer is potentially liable for the religious/belief harassment of their staff by third parties, i.e. people they don’t employ, such as clients, customers, patients or suppliers. Therefore, if your employer knew or ought to have known that you have been harassed in the course of your employment on at least 2 previous occasions by a third party (not necessarily the same third party or the same form of harassment on each occasion) and has failed to take reasonable steps to prevent it happening again, he may be liable under the Equality Act.

Victimisation

This is where you are treated less favourably as a result of you having made, tried to make, helped someone else to make or assumed to have made, a complaint or grievance of religious or belief discrimination under the Act. There is no need to compare your treatment to an employee who has not done one of the above.

How is ‘religion or belief’ defined under the Act?

“Religion” means any religion (including a lack of religion). This includes (but is not limited to) the Baha’i faith, Buddhism, Christianity, Hinduism, Islam, Jainism, Judaism, Rastafarianism, Sikhism and Zoroastrianism.

“Belief” means any religious or philosophical belief (including lack of belief).

Religious belief

The term “religious belief” in the Act goes further than the term “religion”. It recognises that beliefs vary from person to person within the same religion – it is intended to protect those who are discriminated against because of specific religious beliefs, as opposed to their religion in general.

For example, an employee may practice Christianity in the same way as the majority of Christians in the UK, but may hold additional Christian beliefs that are not shared by many other Christians.

A religious belief must be all of the following:

  • genuinely held;
  • more than an opinion or viewpoint based on current information;
  • about a “weighty and substantial” aspect of human life and behaviour;
  • it must have a certain level of clarity, seriousness and importance; and
  • worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.

Philosophical belief

The test for a philosophical belief to be protected is similar, with certain additional requirements.

As with religious beliefs, a philosophical belief must be:

  • genuinely held;
  • more than an opinion or viewpoint based on current information;
  • about a “weighty and substantial” aspect of human life and behaviour;
  • it must have a certain level of clarity, seriousness and importance; and
  • worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others. For example, a belief that one race is superior to another would not be compatible with human dignity or considered worthy of respect in a democratic society.

In addition, to be protected, a philosophical belief must also:

  • have a similar status or cogency to a religious belief. For example, humanism, atheism and agnosticism would be ‘beliefs’, but supporting a football team or loyalty to your native country would not be; but
  • it need not be shared by others.

The courts have said that supporting a political party does amount to a philosophical belief. However, a belief in a political philosophy or doctrine, such as Socialism, Marxism or free-market capitalism, might qualify.

Cases where the court has found that there was a protected philosophical belief:

  • A belief in Darwinism
  • A climate change activist’s belief that mankind is heading towards catastrophic climate change and has a duty to avoid it.
  • An opponent of fox-hunting’s belief in the sanctity of life.
  • Ethical veganism (an ethical vegan is someone who goes further than following a vegan diet, by avoiding all forms of animal harm and exploitation, such as products tested on animals and woollen or leather clothing).
  • Belief in life after death and the ability of mediums to contact the dead.

It is important to remember that whether or not a belief qualifies as a protected philosophical belief is assessed on a case by case basis.

For example, an employee who is claiming they have been discriminated against because they are a vegan will not automatically have a protected belief. They would still need to show that they satisfy the test above (in terms of seriousness, cogency etc.). It may be that someone who follows a plant-based diet rather than taking steps to avoid all animal products does not meet the criteria.

Cases where the court has found that the test for a philosophical belief is not satisfied:

  • Vegetarianism.
  • A belief that individuals are entitled to own the copyright over their own creative works.
  • A belief that transgenderism does not exist.
  • A belief that a poppy should be worn early in November.

You should remember that even if you can establish that you hold a protected philosophical belief, you still need to prove that you were discriminated against because of that belief (as above). It can be difficult to link your employer’s behaviour to your protected belief, as your employer may be able to provide an alternative (non-discriminatory) justification for the treatment you have suffered.

Whether or not your particular philosophical belief is protected by the Act will depend on your individual circumstances, and you should seek early legal advice if you think that you may have been discriminated against because of your philosophical beliefs.

What if there is a conflict of beliefs?

There are sometimes conflicts between two sets of beliefs and protected characteristics of people holding different beliefs. One example is that certain Christians believe that the bible does not condone homosexuality (in which case the employee may argue that this is a religious belief) but sexual orientation is also a protected characteristic. If a Christian employee (for example) is disciplined for expressing such views, then a tribunal will need to decide whether that particular belief is protected in those circumstances.

Key factors the tribunal might consider are:

  • The offensiveness of the language used and the context in which it was used.
  • Whether it took place during working time.
  • Whether there was already a conversation about religious matters taking place.
  • Whether there was any ‘unwanted preaching’.
  • The seniority of the employee involved – the more senior the employee, the more likely it is that the employer is justified in taking disciplinary action.

Who is liable under the Act?

Liability for religious/belief discrimination usually lies with the employer and/or any other employee who is found to have discriminated.

Employers will be liable for the discriminatory acts of employees where those employees are acting in the course of their employment. This is known as vicarious liability. As mentioned above, the employer will also be liable for the acts of third parties in certain circumstances.

Where the acts complained of are done by another employee, it is usually wise to bring the employment tribunal application against both the employee as well as the employer.

Employers have a defence to a complaint of discrimination based on vicarious liability and third-party harassment if they can prove that they took all reasonably practicable steps to prevent the discrimination. It is rare for employers to be able to succeed with this defence, but if they do, in the case of vicarious liability, the claim can continue

Who is covered by the Act?

The Act applies to all employees (fixed and indefinite term), job applicants, trainees, contract workers, office holders (including company directors and partners), those who are on secondment and the self-employed. The Act covers all areas of employment including recruitment, selection and promotion, the provision of training, the provision of benefits, retirement and occupational pensions.

How do I prove discrimination?

It is for the person making the claim to establish that discrimination has occurred. The employee has to prove discrimination by the employer ‘on the balance of probabilities’.

This means that, although a tribunal might have doubts as to whether the employer discriminated, as long as the tribunal more than half believes that they have it must decide in favour of the employee.

Once an employee has established facts from which it may be presumed that discrimination has occurred, it is up to the employer to prove that no such discrimination has in fact occurred.

It is unusual to find direct evidence of religious or belief discrimination. Few employers are prepared to admit discrimination and those who are aware of the law may have taken steps to appear to be acting lawfully.

Whether or not discrimination can be proved will often depend on what inferences a tribunal can draw from the primary facts. Where, for example, an employee complains of failure to promote on religious grounds the evidence may point to the possibility of religious discrimination. In those circumstances the tribunal may look to the employer for an explanation that proves there was no discrimination.

If no such explanation is put forward or if the tribunal finds the supposed explanation inadequate or unsatisfactory it is open to the tribunal to infer that the discrimination was on religious grounds.

What steps can I take to resolve the issues I am facing?

Raising a grievance

If you are still in employment and you cannot resolve the matter informally with your line manager, then it is best to first lodge an internal grievanceYour employer will then be obliged to convene a meeting without unreasonable delay to discuss your grievance. You may, however, still be able to bring a claim in the Employment Tribunal whilst you are still employed.

If you have already been dismissed and you think you have been discriminated against, you can lodge a claim for unfair dismissal and/or discrimination in the Employment Tribunal.

Remedies at a tribunal

An employment tribunal can award one or more of three remedies if it finds that an individual has been a victim of religious or belief discrimination:

  • a declaration which is an order declaring what the rights of the parties are;
  • compensation;
  • a recommendation that the employer should take certain steps to remove or reduce the discrimination.

Compensation

Unlike in unfair dismissal, there is no ceiling on the amount of compensation a tribunal can award for religious or belief discrimination. Compensation normally includes an award for injury to feelings and an award to take into account any loss suffered, for example loss of wages or pension. The awards for injury to feelings can vary, however many thousands of pounds is not uncommon. The Court of Appeal have set out 3 bands of compensation guidelines for injury to feelings, depending on the seriousness of the case. These are commonly known as the ” Vento” guidelines, and from 6th April 2020, they are:

TOP BAND FOR THE MOST SERIOUS CASES: £27,000 – £45,000 (although it can exceed this in exceptional cases);

MIDDLE BAND:  £9,000 – £27,000

LOWER BAND FOR LESS SERIOUS CASES (e.g. a one-off or isolated incident of discrimination):  £900 – £9,000

The Act imposes strict time limits throughout the procedure for bringing a case for religious or belief discrimination. Good cases can be lost before they start through hesitation or delay.

The time limit for making a claim for racial discrimination to the employment tribunal is three months from the act of discrimination. It is now mandatory to go through ACAS’s early conciliation scheme before you can submit a claim to the tribunal.

A discriminatory act may extend over a period of time so that it may be a continuing act if it takes the form of some policy, rule or practice in accordance with which decisions are taken by the employer. In these circumstances the three month period runs from the end of the continuing act. Please click here for more information.

Tribunals do have discretion to allow late claims to proceed, but there must be exceptional reasons why a claim was not made in time.

 

We are a leading firm of employment law solicitors, acting for employees and senior executives in the City and throughout the UK. For more information on religion or belief discrimination and a free consultation, please get in contact on 020 7100 5256 and ask to speak to Philip Landau or any member of the employment team, or email us.

 

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