How can employers avoid religious discrimination claims?

2 Mar 2018 By Enrique Garcia

Enrique Garcia outlines recent cases and where the biggest pitfalls lie

Religious discrimination laws protect those with a religious or philosophical belief, or those with no religion or belief (ie atheism). Employees are protected at all stages from direct discrimination, indirect discrimination, harassment and victimisation.

Indirect discrimination is likely to be the main area of law where an employer would trip up as this is where the employer has a practice, criterion or provision that may not be discriminatory on face value but has a discriminatory effect towards those who have a particular protected characteristic. For example, where an employer has a uniform policy stating that only the uniform must be worn, this may have a discriminatory effect on those who wear particular items of clothing as part of their religious beliefs – for example, Muslim women wearing headscarves or Sikh men wearing turbans. While the policy does not specifically target Sikh men or Muslim women, it does not allow them to wear anything but the uniform and therefore has a discriminatory effect towards those with a particular characteristic – in this case, religion.

There can be a defence to indirect discrimination if the policy, criterion or practice is a proportionate means of achieving a legitimate aim. This means it is necessary for business reasons and goes no further than necessary to safeguard and advance those business reasons; for example, the uniform policy may be in place to ensure a neutral dress code, or for health and safety reasons.

In that case the employer would have to demonstrate that risk assessments show that wearing religious items such as jewellery and headscarves constitutes a health and safety hazard and there are no other reasonable steps to take except to ban them. 

Recent case law

In the European Court of Justice (ECJ) case of Achbita v G4S, Ms Achbita had worked for G4S for three years before she started wearing a headscarf to work. She was dismissed because the company bans the wearing of any visible religious, political or philosophical symbols. She had claimed that she was being discriminated against on the grounds of her religion but the court disagreed. 

Juliane Kokott, advocate general at the ECJ, said: “While an employee cannot ‘leave’ their sex, skin colour, ethnicity, sexual orientation, age or disability at the door upon entering their employer’s premises, they may be expected to moderate the exercise of their religion in the workplace. Such a ban may be justified if it enables the employer to pursue the legitimate policy of ensuring religious and ideological neutrality.”

However, it’s important to note that this was a unique case from Belgium, so extreme caution should be exercised when looking at it.

Examples of indirect discrimination will vary on a case-by-case basis, and specific advice should be taken. In some cases, a rule may be justified in one specific department or role but not in another.

While not an employment law case, there is one example where religious discrimination rules were demonstrated not to apply. A cake shop in Northern Ireland refused to sell to a gay man who wanted to buy a decorated cake supporting gay marriage on the grounds that it conflicted with the owners’ Christian beliefs. The refusal to sell the cake amounted to discrimination of the customer. The shop could not rely on religious discrimination, nor could its employees. Why not? Under discrimination laws, a commercial entity should provide their service to anyone, not only to those who agree with the religion of its owners and/or employees.

This translates into employment law in many ways. For example, there have been instances of footballers citing religious reasons for not wishing to wear branding on their football kits that promotes betting. In this case, the advice is that they are not protected under religious discrimination laws.

This principle was followed again in Trayhom v Secretary of State for Justice. An employee of the prison service was a Pentecostal Christian and took part in a prison church service.  During the service he condemned homosexuality and spoke of repentance. He was not able to rely on religious discrimination protection as he did not rely on a manifestation of his religion during the service, going over and above merely scripture. Furthermore, the employer would have had a proportionate means of achieving a legitimate aim – preventing inflammatory remarks to maintain order and national security in the prison service. 

Whatever the circumstances, detailed advice should be sought in each individual case, as the risks are huge: compensation for discrimination is uncapped and the record award in the UK is £4.5m.

Enrique Garcia is an employment law consultant and advocate at ELAS

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