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Jonathan Bruck

IBB Solicitors

Senior Solicitor

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Legal Insight: The religious discrimination issue

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The Church of England recently attempted to re-open the long-running debate over the issue of religion (and religious expression) in the workplace.

But the legal position is far from straightforward. How far employers should go in accommodating the religious needs and requirements of staff is an issue that typically polarises opinion.

The Church believes that some employers do not go far enough. A senior Church figure urged the Government to tackle those employers that consider expressions of faith as automatically “offensive”, expressing “great concern” over what he believed were overreactions to expressions of faith in the workplace.
 
But there are others who believe that some employers are simply too accommodating to the detriment of other staff and the business.
 
Striking a balance
 
Striking the right balance on the issue has been one of the greatest challenges for employers over the last few years. But it has ultimately been up to employment tribunals and the courts to decide where the line should be drawn between protecting the rights/needs of religious employees and those of the business and other personnel. As the law stands, this is a fine and difficult line to draw.
 
The Government has attempted to do so through legislation to prevent religious discrimination in the workplace. The Equality Act 2010 makes it unlawful to directly or indirectly discriminate, harass and/or victimise another worker with respect to religion, religious belief and/or philosophical belief. This legislation is designed to protect not just people with religious convictions, but also those with other beliefs such as atheism.
 
The vast majority of high profile religious discrimination cases have involved allegations of indirect discrimination. This situation typically occurs when an employer introduces specific provisions, policies or practices that have the effect of disadvantaging employees of a particular religion or belief. 
 
It is not a discrimination issue if the employer can show that applying such a provision or practice is ‘objectively justified’, however. The key question that tribunals and courts have to consider is what kind of practices or policies can be objectively justified. 
 
As the following example cases illustrate, what is objectively justifiable, turns on the facts of each case:
 
Job Responsibilities: In Ahmed vs Tesco Stores Ltd, a Muslim warehouseman claimed that requiring him to handle alcohol was indirect discrimination as it was against his faith. His claim was dismissed on the grounds that supplying alcohol was a legitimate aim and that requiring the claimant to handle it was a proportionate means of achieving that aim (ie it was justified).
 
Dress Codes: In the case of Eweida vs British Airways, an employee brought a claim for indirect discrimination, after her employer’s policy did not permit her to wear a two-inch high cross on a necklace as a symbol of her Christian faith.
 
The policy forbade all uniformed employees to wear visible jewellery. It also stated that any accessory or clothing item that the employee was required to have for mandatory religious reasons should at all times be covered up by the uniform.
 
The tribunal dismissed the claim on the grounds that the policy did not put Christians at a particular disadvantage. It decided that the wearing of a visible cross was not a mandatory religious requirement and, although motivated by her faith, was more personal than anything else.
 
In another case (Chaplin vs Royal Devon & Exeter NHS Foundation Trust), a tribunal found that a nurse who was not allowed to wear a crucifix on a necklace at work was likewise not discriminated against. It ruled that the trust’s uniform policy did not put Christians at a particular disadvantage and that, for health and safety reasons, the policy was objectively justified.
 
Time Off For Religious Commitments: In Williams–Drabble vs Pathway Care Solutions Ltd, the claimant succeeded in her indirect discrimination claim after her employer introduced a new rota requiring staff to be available for work on Sundays.
 
As a Christian, the new shift meant that she would miss the only service at her usual church. The tribunal found that the new rota put practising Christians at a disadvantage and that the employer was not objectively justified in introducing it.
 
In another case with similar facts, a Roman Catholic employee was also successful in an indirect discrimination claim, after he was dismissed for refusing to work on Sundays. Other cases have found in favour of the employer, however.
 
Despite the Government’s best efforts to legislate in this field, it is likely that striking the right balance over religion in the workplace will continue to be a contentious issue amongst employers, employees, religious organisations and tribunals for some time to come.
 
 
Jonathan Bruck is a senior solicitor, specialising in employment law, at IBB Solicitors.
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Jonathan Bruck

Senior Solicitor

Read more from Jonathan Bruck
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