The Employment Equality (Religion or Belief) Regulations 2003 (RBRs) come into effect on 2 December 2003. Nicola Brown of Thomas Eggar offers legal and practical guidance on the new law that will apply throughout the employment relationship, from recruitment through to after the employment has ended.
At first glance, most employers probably feel they do not need to worry too much about the new provisions. Their organisations already have equal opportunities policies, and they feel confident that their current arrangements are sufficient to prevent claims of discrimination.
However, taking this attitude would be to underestimate the problem. The difference between the new provisions and existing discrimination laws is that they cover issues that until now most employers may not even have considered.
Many businesses keep statistics regarding their employees’ ethnic backgrounds, but very few will have information regarding religion. Religion is a personal matter, which until now has not usually had a significant impact on a person’s working life. All that may be set to change – and the first difficulty employers face is that they do not yet know which of their workforce it will apply to.
Religion or belief
The new RBRs make discrimination and harassment unlawful where it takes place on the grounds of “religion, religious belief, or other similar philosophical belief.”
Currently the Race Relations Act 1976 provides protection for certain faiths, but only where a person’s religion also constitutes their ethnic origin (such as Sikhs). The RBRs will extend protection to many other sections of the community.
One of the many issues that will cause difficulty for employers will be determining whether a particular belief is covered by the RBRs. The Government’s guidance on the RBRs sets out factors which can point one way or the other, including whether there is a “profound belief affecting way of life or view of the world,” but there is no definitive test.
The guidance also states that a philosophical belief will only be covered where it is ‘similar’ to a religious belief. What ‘similar’ means in this context remains to be seen – the aim appears to be to avoid political beliefs being covered, although there are inevitably some areas of overlap.
Some have expressed doubt as to whether non-believers or those who belong to unconventional faiths, such as Druidism and Scientology, will be covered by the RBRs. The Government has not made this clear, either in the RBRs themselves or the guidance. It is likely that this definition will be clarified by future case law, but in the meantime businesses should be wary of assuming that non-beliefs or unusual beliefs will not be covered.
As well as outlawing discrimination on the grounds of a religious or similar belief, the RBRs cover discrimination based on perceptions about belief, (whether or not those perceptions are correct). They also deal with discrimination based on association with those adhering to a particular religion and discrimination between different religions or between different sects or divisions of the same religion.
The RBRs are structured in a similar way to the Sex Discrimination and Race Relations Acts, and apply throughout the employment relationship, from recruitment through to after the employment has ended. They cover direct and indirect discrimination as well as victimisation and harassment. Like existing discrimination provisions, there is no limit on the compensation that can be awarded where an employee brings a successful discrimination claim.
Direct discrimination will occur where an employee is treated less favourably due to his religion or belief. Indirect discrimination is the area employers will need to watch out for most. This is where a condition or requirement is imposed which disadvantages people of a particular religion, and the condition cannot be justified as a proportionate means of achieving a legitimate aim. For example, if employers expect everyone to work a certain shift pattern which interferes with a particular religion’s prayer time, this could amount to discrimination.
This is a particular concern for employers and managers where they do not know the religious allegiances in their workforce, and are not fully aware of the requirements of the particular faiths concerned. It may also cause problems where the workforce is made up of a number of religious groups whose requirements may seem incompatible.
Particular issues organisations will need to watch out for include:
- Time off for prayer or other religious observance
- Dietary requirements
- Dress codes
- Religious events
- Working hours
- Alcohol – failing to provide non-alcoholic drinks at a business function could be seen to be discriminatory
- Application and recruitment practices – it has been suggested that to expect a job applicant to shake hands at interview may be discriminatory.
There is a defence in the RBRs for employers who can show that there is a “genuine occupational requirement” for a person to be of a particular religion in order to take up a particular post. However, this is likely to be narrowly interpreted.
It will also be interesting to see how the rules regarding discrimination on the grounds of religion or belief interact with both sex discrimination and sexual orientation discrimination provisions. For example those with certain religious beliefs may protest against being required to work with homosexual colleagues. Employers will need to find some kind of balance, but it could cause huge headaches for managers.
Practical advice
As a first step it may be worth conducting a survey (anonymous if necessary) of your workforce, in order to try and get an idea of the issues you will face. Employees will not be obliged to answer but it will show that you are taking the matter seriously and hopefully it will give you a starting point. For example, if you discover you have some employees who are Zoroastrians you can research their particular beliefs and requirements.
Your existing policies and procedures, and in particular your equal opportunities policy, should be audited to ensure that they deal with the rights under the new legislation and promote tolerance. It should be made clear who employees should speak to if they feel they are being discriminated against on grounds of their religion or belief.
Many employers are used to dealing with sensitive issues in terms of gender and race. However, religion can involve very strong feelings and issues which can be even more personal to the individual. This can lead to an increased risk of causing offence, which in turn can lead to expensive claims.
It is important that you are as informed as much as possible about the new rights so that you can deal with questions from employees as and when they arise.
Related items
Practical tips on the new discrimination regulations
Firms urged to review diversity policies
Asking the unaskable – requesting details on race, religion and disability
Equalities monitoring – is anyone asking a question about either religion and/or sexual orientation?
Employers “unprepared” for new religion, belief and sexual orientation legislation
2 Responses
New rights are born
The new laws not only prevent discrimination and harassment on the grounds of an employee’s sexual orientation, religion or belief, but they also prevent such treatment on the grounds of someone else’s sexual orientation, religion or belief (for example where someone is discriminated against or harassed due to the sexual orientation or religion of their friends) or perceived sexual orientation, religion or belief.
Under the new legislation,”sexual orientation” is clearly defined as either bi-sexual, homosexual or heterosexual. However, the definition of “religion or belief” is far less clear and as such is open to interpretation. The only guidance is that a religion or belief must have a collective system of worship, a clear belief system and a profound belief affecting an individual’s way of life and/or their view of the world. The Government’s intention is that the Courts will eventually clarify this but in the meantime employers will be left to decide the issue, if it is raised by an employee.
There is no limit on the amount of compensation that may be awarded by an employment tribunal if the discrimination and/or harassment is based on sex, race, disability, sexual orientation, religion or belief.
Paul Gaff, Thomas Eggar
paul.gaff@thomaseggar.com
Regulations on Religion and Belief: Raising awareness not alarm
The new Employment Equality (Religion or Belief) Regulations reaffirm many of the basic principles of good employment practice and should not be a cause for alarm for managers.
Discrimination cases usually reflect poor people management. If effective competency frameworks are used by organisations in their approach towards recruitment, selection, promotion, training and development, and redundancy issues: discrimination issues will be minimalised.
Religion or belief should not matter when making employment decisions: skills, abilities and potential are what count. The new regulations make it unlawful to discriminate against workers, but do not make unreasonable demands on employers.
In practical terms, employers will not be compelled to release staff for religious holidays or festivals or required to provide prayer rooms. However, employers will be required to consider sympathetically any such request where it is reasonable.
It should already be good practice to consider how to balance the needs of the business and those of staff. These regulations provide a good reason to consult with staff and to update equality policies. While an Equality Policy is not required, it is good practice, as it helps to raise the profile of diversity issues and to build employee confidence that equality is taken seriously.
Surveys undertaken by the Institute reflect members’ concerns that the introduction of the EU Directive on Equal Treatment at Work through separate regulations, has the potential to create more confusion than clarity. Much more could be done to integrate the “strands” of equality legislation and place it within the framework of the Human Rights Act.
A preferred option would be to codify legislation into a Single Equality Act, supported by codes of practice written in plain language. A single Commission could then be responsible for enforcement. We welcome the DTI’s intention to create a Commission for Equality and Human Rights, which could provide a more joined-up source of information, guidance and enforcement.
The Institute can see no compelling reason for delaying the implementation of a single Commission. It is already accepted that it would be in the interests of businesses and individuals, particularly those who are subject to multiple discrimination. It would help to ensure a coherent approach across the board.