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The Employment Equality (Religion or Belief) Regulations 2003 prohibit discrimination and harassment on grounds of religion or philosophical belief in employment, vocational training and the provision of goods, facilities and services.
This booklet is solely concerned with the employment aspect of the Employment Equality (Religion or Belief) Regulations 2003.
The Regulations cover not just believers of organised religions, but anyone who holds any religious or “philosophical belief” such as paganism or humanism. The Regulations also protect non-believers.
They cover people who are “associated with” someone who holds certain religious or philosophical beliefs, or people who are perceived as having certain beliefs when, in fact, they don’t.
Religious hate crimes are a criminal matter and are dealt with by the police.
They apply to people working wholly or partly in Great Britain, as well as those who work outside it as long as their employer’s place of business is in Britain and the work they do is for the purpose of that business.
Workers must ordinarily be resident in Britain when they apply for the job or at any time during their employment.
The Regulations apply in England, Scotland and Wales, but not Northern Ireland which has its own fair employment legislation.
The legislation protects all workers, including contract and agency workers, office holders, the police, barristers and members of the armed forces.
They take effect at the recruitment stage and apply to terms and conditions of employment (including benefits such as pensions), pay, promotions, transfers, opportunities for training and dismissal and post-termination discrimination such as the conduct of appeals or letters of reference.
They also apply after the employment relationship has ended if the discrimination arises out of and is closely connected with the employment relationship.
Employers are liable for the acts of their employees, whether or not they knew or approved of them. They are also liable for acts done by anyone else acting on their behalf or with their authority.
This includes partnerships, trade organisations (including trade unions), qualifications bodies, providers of vocational training, employment agencies and institutes of further and higher education.
Employers have a defence to a complaint that an employee discriminated against another employee if they can show that they took all ‘reasonable steps’ to prevent the behaviour from happening.
For instance, by showing they have a policy that deals with discrimination on the grounds of religion or belief, that the policy is actively implemented, that staff receive regular training and possibly even that workers have been disciplined in the past for unacceptable behaviour.
The Regulations outlaw:
• Direct discrimination – which means treating people less favourably than others on the grounds of religion or belief (or instructing someone else to behave in this way). There is no defence available to an employer to a claim of direct discrimination, unless the employer can show a genuine occupational requirement (see below).
• Indirect discrimination – which means applying a provision, criterion or practice (whether intentionally or not) which disadvantages people of a particular religion or belief, unless it can be justified. To be able to justify it, employers have to show there is a real business need for the practice and that there is no alternative to it.
• Harassment – which is defined as subjecting someone to unwanted conduct that violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. The harassment does not have to be intentional to be caught by the Regulations - for instance it can be jokes or banter that someone finds offensive.
• Victimisation – which means treating someone less favourably because they made or intend to make an allegation about discrimination on the grounds of religion or belief, or because they have given or intend to give evidence under the Regulations. It does not matter if the allegations turn out not to be true, providing the person made them in good faith.
There are four basic exceptions to the principle that people should not be discriminated against because of their religion or belief:
• Genuine occupational requirement (GOR)
• The religious organisations' genuine occupational requirement
• Positive action
• Protection of Sikhs on construction sites
Employers can rely on the general GOR as a defence to claims of direct and indirect discrimination, as long as they satisfy the following test:
• That subscribing to a particular religion or belief is a genuine and decisive requirement for the job
• That it is proportionate to apply that requirement in this particular case
• That the person either does not meet the requirement to be of a particular religion or belief, or the employer is not satisfied that they do and it is reasonable in all the circumstances for them to reach that conclusion.
This exception does not require employers to show that their business is based on a particular religion or belief. They just have to show that being of a particular religion or belief is a genuine requirement for the job - for instance a hospital wishing to recruit a chaplain to minister to patients of a particular faith.
The GOR exemption is only likely to apply to a very few jobs and has been narrowly construed by the courts and Tribunals.
Some organisations - like faith schools - are founded on an ethos based on a religion or belief. The test in that situation is very similar to the general GOR except that subscribing to the religion need not be a decisive requirement for the job.
Take the example of a faith based care home that requires its carers to have a particular faith because they have to look after both the physical and spiritual needs of their patients. This argument might well succeed, but they are unlikely to be able to justify a similar requirement for their maintenance or reception staff.
Employers are allowed to take positive action in favour of members of a particular religion or belief, where it seems a reasonable thing to do to compensate for past disadvantages that they may have faced.
They can provide training that would fit them for particular work, or encourage them to take advantage of opportunities for doing particular work.
The legislation states that if an employer requires a Sikh to wear a safety helmet while on a construction site, that would amount to indirect discrimination which can never be justified. But the clause only applies to construction sites - if a Sikh wearing a turban were to try to enforce this provision in other circumstances, he would be unlikely to succeed.
Under the Regulations, it may also be indirectly discriminatory to impose, say, a safety helmet requirement on people who practise other religions which required special head wear. However, employers might well be able to justify it on health and safety grounds.
In general they can, although they have to be careful that a dress code does not give rise to claims of unlawful indirect discrimination.
Employers cannot, however, impose a code if it seems to discriminate against someone on the grounds of their religion or belief, unless they can justify the requirement. The well publicised case of Azmi v Kirklees Metropolitan Borough Council is a case in point.
Mrs Azmi claimed indirect discrimination when she was not allowed to wear a veil in class but the Employment Appeal Tribunal said the school was justified in its refusal because the children needed to see her facial expressions as part of the learning process.
If the employer can show that the refusal is reasonably necessary for the business on health and safety grounds, then the refusal will also be justifiable. But note the exception about Sikhs on construction sites.
In general, it is good practice for employers to allow staff to wear clothing that reflects their religious convictions.
If a worker wants to take a day off in observance of a religious holiday or festival, employers should try to accommodate this as long as the request does not interfere with the smooth running of the business. Otherwise, a refusal may amount to unjustified indirect discrimination.
All organisations (big and small) should have clear procedures for handling leave requests, which should be applied equally to all staff. For their part, staff should give as much notice as possible of a holiday request and be aware that the employer may not always be able to accommodate it.
There is no explicit requirement under the Regulations to provide facilities, such as a prayer room, for workers who want to practise their religion.
However, if employees ask for a quiet place in which to pray and the premises can accommodate the request without adversely impacting on the business or other staff, then it is hard to see how a refusal could be justified.
There may also be issues about the time that workers take in order to practise their religion. However, if the time off to practice the religion is restricted to the normal tea, coffee and smoking breaks taken by others, then the workers are not being treated any more favourably than anyone else in the workplace.
Although most issues should be resolved in the workplace, there are times when this is not possible.
If a worker believes their employer has discriminated against them, they must complain to an employment Tribunal within three months of the act complained of. This time limit is extended by three months, however, to allow the statutory grievance procedure to take place.
Unless there are special circumstances (such as threats or continuing harassment by the employer), where the action complained of started before 6 April 2009, the employee must write to the employer raising a grievance and wait for 28 days before bringing a discrimination claim to a Tribunal. This applies even if the complaint relates to disciplinary action short of dismissal or another grievance. If they do not do that, the Tribunal will not be able to hear the claim.
If the discrimination is in a form which continues, for example, a continuing exclusion from a benefit or a continuing course of harassment, then the three month time limit does not start to run until that discrimination finishes.
A Tribunal may allow an application to proceed even after the three month time limit if, in the circumstances of the case, it considers it just and equitable to do so. Where the action complained of started on or after 6 April 2009, the employee should still raise a grievance but even if they do, the time limit is not extended.
*REFERS TO LEGAL CHANGES EFFECTIVE FROM 6 APRIL 2009.
There are three remedies available to a Tribunal:
• Declaration
• Compensation
• Recommendations
A declaration states the rights of the claimant and sets out how the employer and/or any employee involved has acted unlawfully.
Compensation can be awarded for injury to feelings and financial losses, if there are any. There is no limit on the amount of compensation, which can include loss of earnings (past and future), loss of pension, interest and any other outlays associated with the discrimination.
The amount of compensation for injury to feelings can vary enormously. The person’s age and vulnerability may be considered, and also the severity of the discrimination.
Claimants can also ask for compensation for personal injury if they have been seriously affected by the discrimination, particularly in harassment cases which can lead to illness and depression. If so, claimants need to produce a medical report to support their claim.
Compensation may be reduced if the claimant failed to raise a grievance.
The Tribunal’s powers to make recommendations are limited to actions that will benefit the individual employee and lessen the effect of the discrimination on them. They must be practical, have a time limit and avoid or reduce the effect of the discrimination that the worker complained about.
For instance, they might include a requirement for all members of management to be trained in equal opportunities, or for the employee who has been discriminated against to be provided with additional training or mentoring, or to be invited to interview in relation to future job applications.
If the employer fails to comply with a recommendation, then the Tribunal may order the compensation to be increased.
Thompsons provides updates to trade union activists on the law, the series of updates includes:
Thompsons’ website includes regular legal updates in the e-training section of the website.
The information contained in this booklet is not a substitute for legal advice. You should talk to a lawyer or adviser before making a decision about what to do. Thompsons Solicitors is regulated by the Solicitors Regulation Authority.
Published February 2009
