Big Lesson – Religion and belief at work

Modern workplaces should be diverse, inclusive, tolerant, and productive. But this doesn’t happen by chance; it’s the result of a concerted effort by employers to engender the right sort of ethos, and to put in place the practical tools that enable workers of all backgrounds, nationalities, beliefs, and leanings to do their jobs well.

So I thought I’d run through some of the more common types of religion/belief-related issues that can challenge employers:

1. Deciding when a religion is a ‘religion’ and a belief a ‘belief’

A person’s assertion that they are of a particular religious persuasion, or that they hold a particular belief doesn’t automatically lead to Equality Act protection.

Religion

‘Religion’ can be quite widely interpreted, but it won’t qualify unless it has a clear structure and belief system. It doesn’t have to be mainstream or well known; less common religions such as Druidism, Divine Light Zentrum, and the Church of Scientology count. 

Remember that protection extends to those who experience certain detrimental treatment because they don’t follow a particular religion.

Belief

This is any religious belief, or the lack of such a belief, provided that the belief:

• is genuinely held;
• is a ‘belief’, and not an opinion or viewpoint based on the present state of information available;
• is about a weighty and substantial aspect of human life and behaviour;
• attains a certain level of cogency, seriousness, cohesion and importance;
• is worthy of respect in a democratic society;
• is not incompatible with human dignity;
• does not conflict with the fundamental rights of others.

Philosophical beliefs can fall within this definition. While the belief must be similar in status or cogency to a religious belief, it doesn’t have to be a ‘fully-fledged system of thought’, and it needn’t be shared by others. A serious concern about the effects of climate change could qualify, as could opposition to fox hunting (belief in the sanctity of life). It has been held that a belief that telling lies is always wrong can be a ‘belief’. Also, a belief in spiritualism, life after death, and the ability of mediums to get in touch with dead people have been held to be beliefs capable of protection.

As to political beliefs, supporting the Labour party, for example, is unlikely to afford someone Equality Act protection. But if the belief goes deeper – if it enters the realms of a philosophical belief such as Socialism – then it could well do. 

2. Dress codes

Many employers do not know the full range of requirements that various religions impose (and there are lots), so it’s well worth putting a reference document in place. 

Particular hotspots include rules about:

• jewellery, tattoos and other religious markings;
• hair-length. Hindu men who wear a shikha could be disadvantaged by a rule requiring men to have a short back and sides;
• the way in which clothes should be worn – for example, anything that could conflict with certain religions’ requirements for women to dress modestly;
• headgear (to wear certain headgear, or to not wear headgear at all) potentially indirectly discriminates against Sikh workers who wear turbans, Muslim women who wear headscarves, and Jewish men who wear a skullcap. The policy would need to be objectively justified. Note that, in almost all workplaces, Sikh workers are not now required by law to wear a safety helmet but an employer would still need to carry out a risk assessment and, if necessary, provide protective equipment.

The key is to accommodate, wherever possible, the needs and wishes of staff who follow particular religions. This doesn’t mean that legitimate business concerns must play second fiddle. You have to strike the balance between an individual’s right to manifest their religious belief, and the business reason for not allowing them do that.

The wording and application of your policies is likely to be crucial. In Achbita v G4S Secure Solutions, a Muslim employee who was dismissed after insisting on wearing her headscarf to work (in breach of the employer’s neutrality policy) was found not to have been directly discriminated against. She hadn’t been treated differently from others; no employee was allowed to wear a visible sign of religious, philosophical or political, belief at work. Note that these types of situations can give rise to indirect discrimination, however, in which case objective justification would be needed.

Health and safety can be a legitimate business reason for imposing a particular rule, but it will always depend on the specifics of the situation. In Begum v Pedagogy Auras UK, a nursery’s rule that employees could not wear anything that posed a tripping hazard was found not to discriminate against Muslim women. Even if the employer’s provision, criterion or practice put Muslim women at a disadvantage, it could be justified as a proportionate means of achieving a legitimate aim: protecting the health and safety of staff and children.

Health and safety has also been held to be a valid reason for not allowing an employee to wear a crucifix on a necklace at work (Chaplin v Royal Devon & Exeter NHS Foundation Trust). But in Eweida v British Airways the European Court of Human Rights held that BA could not objectively justify its refusal to allow its employee to wear visible jewellery – in her case, a crucifix that she wanted to wear as a visible symbol of her faith. The cross didn’t really affect the employee’s professional appearance or the interests of others. And although BA’s wish to project a corporate image was a legitimate one, items of religious clothing that its employees were allowed to wear (turbans, for example) had not had a detrimental effect on the BA brand.

3. Time off for religion-related reasons

If an employee asks to take time off work, whether for a religious reason or not, you should try to accommodate that.

Decisive factors can be whether or not the employee has enough annual leave left to take, and whether you will be able to cope in their absence (does it coincide with a particularly busy spell, or major project, for example?). Of course it’s always open to an employer to allow an employee extra time off to attend a religious occasion, but that must be carefully balanced with the effect that that could have on business and on other employees who might feel disadvantaged by not being of the same religion as that employee.

Another point to be aware of when it comes to leave is that if you close down over Christmas, that will usually leave non-Christian employees with less holiday to take for their religious festivals at other times during the year. Is your Christmas closure a proportionate means of achieving your legitimate business aim, given the impact this would have on all workers?

What about time off during the working day to pray? A refusal could be indirectly discriminatory and you would need a good business reason for refusing. In Cherfi v G4S Security Services, the potential financial penalties and risk of losing a client contract if the employer didn’t have enough security guards on site justified not allowing a Muslim worker time out to attend his mosque on Friday lunchtimes.

Make sure to avoid direct discrimination, too. The Equality and Human Rights Commission Code gives this example:

An observant Muslim requests two additional 10-minute breaks every day to allow him to pray at work. The employer allows other workers to take additional smoking breaks of similar length. Refusing this request could amount to direct discrimination because of religion or belief. On the other hand, if the employer took a consistently strict approach to rest breaks, they could allow the prayer breaks on the understanding that the Muslim worker arrives at work 20 minutes earlier or makes up the time at the end of the day.

One particular issue that crops up from time to time is the effect that Ramadan can have on workers. While it wouldn’t be appropriate to suggest that those observing Ramadan (and whose performance might be hampered in some way because of it) take time off during that religious period, it’s certainly worth exploring with them the possibility of building some flexibility into their working arrangements over that time. Go about this carefully to avoid any criticism of an employee’s fasting-related performance amounting to direct discrimination and harassment.

4. When religious beliefs conflict with sexual orientation

It’s possible that employers will at some point face a situation in which someone with strongly held religious views about homosexuality, and who believes they are entitled to express those views, behave offensively towards someone based on sexual orientation.

Religious belief cannot absolve someone of responsibility for breaching their employer’s equality policy. Employers have a duty to protect employees from harassment in all its forms, wherever it comes from. Your policy should reflect that, and it should be applied proportionately and reasonably across the board. It’s also worth being clear on whether the views being expressed stem from a valid religious or other belief (and may fall within freedom of expression), or whether the perpetrator is simply being homophobic.

It can be okay to discipline someone who refuses to carry out some part of their job because they say it would conflict with their religious beliefs. A typical example would be an employee who refuses to provide services to a person on grounds of that person’s sexual orientation. It seems that where an employer has a legitimate and fundamental aim of providing a service to everyone, whatever their sexual orientation, an employee who refuses to do so does not hold the upper hand. It may be proportionate to discipline them – even to dismiss them.

One of the essential points in all of this is that any disciplinary steps taken against an offending employee must be based on that person’s actions and not on their beliefs.

Top tips:

• Keep a close eye on the presence of religion and belief at work.
• Appoint a senior person within your organisation to oversee religious matters, including any issues that arise.
• Get to grips with the requirements of as full a range of religions as you can, and consider preparing a briefing pack (covering everything from clothing and appearance, to dietary requirements, to general customs and practices) for managers and other key employees.
• Make all reasonable attempts to accommodate employees’ religions and beliefs. It’s always best to try to come to some sort of arrangement with staff who have particular needs, but make sure to afford a similar level of flexibility to other employees.
• Carefully manage employees who are forcing unwelcome religious views/information onto others. And be prepared to justify a policy that seeks to prevent employees from promoting their religion at work.
• Be as accommodating as you can be when it comes to religious dress and appearance, and be ready to objectively justify policies and rules that indirectly discriminate.
• Have a clear policy about the circumstances in which you will, won’t, may and may not allow time off. 
• If you’re able to provide a quiet place at work for use by people to pray, great – provided that doesn’t conflict with the needs of other employees or of the business.
• Be mindful of the challenges employees face when they are fasting. Also be aware of the knock-on effects that can be felt by colleagues who may have to pick up any slack during that period.
• Be thoughtful when planning social events, and even where you offer alcohol as a reward for a performance; have you catered for employees of particular religions?