Last month saw the fifth anniversary of the legislation that prohibits discrimination and harassment on the grounds of sexual orientation and religion or belief. Audrey Williams highlights some cases that show that these regulations have provided employers with many difficult challenges.

Accommodating beliefs

One question that has challenged many employers is whether they must adjust their usual practices to accommodate employees whose religious beliefs conflict with the requirements of their job.

From the moment the religion or belief and sexual orientation regulations came into being, it was inevitable they would lead to discord in some workplaces. Where the beliefs of one or more employees affect the interests of others, employers are in an unenviable position.

The recent case of Ladele v London Borough of Islington (2008) illustrates the point well. Ms Ladele, a Registrar of Births, Deaths and Marriages, refused to register same sex civil partnerships, believing that to do so was incompatible with her Christian faith. Two gay members of staff complained they felt victimised by her stance. Ms Ladele, in turn, claimed that these complaints and the council’s handling of them (including taking disciplinary action against her) amounted to religious discrimination and harassment.

Although an employment tribunal upheld Ms Ladele’s claim, that decision was comprehensively overturned by the Employment Appeal Tribunal in December. At the core of the EAT’s reasoning was its conclusion that Ms Ladele’s personal stance involved discrimination on grounds of sexual orientation. This, the EAT said, was inconsistent with the council’s clear commitment to non-discriminatory objectives; that commitment would be undermined if the council were to allow Ms Ladele to manifest her belief by refusing to undertake civil partnership duties.

Ms Ladele has applied for permission to take her case to the Court of Appeal, so this remains one to watch. In the meantime the case demonstrates that employers will not always be expected to accommodate an employee’s wishes, particularly if doing so would undermine the employer’s avowed commitment to the principles of non-discrimination and ensuring equality.

Nevertheless, a considerate approach by managers is essential, always bearing in mind that in such cases employers are often dealing with matters of conscience that, for some, go to the very core of their identity.

One area that has led to a number of disputes coming before the courts concerns dress codes. A uniform policy might limit some employees’ ability to express their religious beliefs. This could be discriminatory unless the employer can justify its policy and demonstrate that the need to insist on strict compliance outweighs any adverse impact on people of a particular faith.

To limit the potential for conflicts, HR practitioners need to have an understanding of and sensitivity towards the requirements and conventions of different cultures, religions and similar belief systems. This is no easy task. However, help is at hand in the shape of the ACAS publication, Guidance on Religion and Belief in the Workplace. The Guidance contains invaluable advice and should be on every HR and diversity professional’s reading list.

Another difficult issue for employers is whether employees must be allowed time off for religious observance. Again, a balance needs to be struck and sensitivity, pragmatism and a degree of flexibility are called for. Allowing shift swaps between colleagues, adjusting working hours and suggesting employees take annual leave could all be options to consider. But much will depend on the resources of the business – what may be achievable in a large organisation could be unrealistic for a small business.

Ultimately if the employee’s needs cannot reasonably be accommodated, an employer will not be obliged to satisfy the request. But in any case it is important that workers’ concerns are not dismissed out of hand: clear procedures for handling requests for leave, good communication and consistent decision making are all key.

Harassment

The sexual orientation and religion or belief regulations may sometimes seem to pull in different directions. Nevertheless, at their core they both stand for the same ideals: dignity and respect.

Homophobia and religious intolerance can find their way into the workplace just as in other walks of life and the cost of not doing enough to stamp out harassment can be high. In the case of Ditton v CP Publishing Ltd (2007), for example, an employee was awarded compensation of £103,028 (including £10,000 for injured feelings) after he was subjected to sexual orientation harassment culminating in his dismissal. As well as leading to claims for compensation, allegations of harassment can damage reputations and employee relations.

The scope for harassment claims was widened last month when the Court of Appeal ruled that the sexual orientation regulations protect workers against homophobic abuse even where the victim is known by their harassers to be heterosexual (English v Thomas Sanderson Blinds Ltd, 19 December 2008).

That judgment followed a ruling in a different case in which the EAT made it clear that there will be religious discrimination not only where an employee is harassed because of their own beliefs but also where they are harassed because of someone else’s beliefs (Saini v All Saints Haque Centre and others, 24 September 2008).

Given the breadth of the legislation, employers need to take pre-emptive action to protect staff against harassment. A top-down approach is crucial, with senior managers sending out a clear message that bullying and harassment will not be tolerated. That message should be reinforced by robust policies spelling out what sort of behaviour is unacceptable, and with suitable training for all. Complaints should be taken seriously and investigated carefully. And where harassment has occurred, managers should not shy away from taking firm action against the perpetrators.

Audrey Williams is head of discrimination law at law firm Eversheds LLP