Religious Issues in the Workplace
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A Muslim catering assistant who was required to handle sausages and bacon is suing his employer for religious discrimination.
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A nurse suspended for offering to pray for a patient was, after a petition organised by a national newspaper, allowed back to work.
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A school secretary is facing disciplinary action after seeking prayers from friends after her daughter was reprimanded for speaking about Jesus in the classroom. This matter is ongoing.
In cases such as these, individuals may allege indirect religious discrimination against their employer as well as direct discrimination.
What is indirect religious discrimination?
Indirect discrimination occurs where a provision, criterion or practice is applied to all employees equally but which has the effect of putting people who have a particular religious belief (or indeed lack of belief) at a disadvantage, which cannot be justified. Indirect discrimination is unlawful whether or not it is intentional.
What does case law tell us?
Indirect discrimination is dealt with in Northern Ireland under the Fair Employment and Treatment (Northern Ireland) Order 1998. Whilst fair employment case law has mainly related to the two traditional religious backgrounds in Northern Ireland, in an increasingly diverse society, local employers must be aware of the potential for religious discrimination in a wider context.
Case law decided under the equivalent UK Regulations (the Employment Equality (Religion and Belief) Regulations 2003) can have persuasive impact in this jurisdiction. Whilst claims brought under these regulations often receive high media coverage, they are often not successful at Tribunal. This may be because individuals often interpret and manifest their religious beliefs in a unique way and at Tribunal such individuals are required, in effect, to prove that their faith requires them to interpret their religious beliefs in a particular way.
We previously reported on the decision of London Borough of Islington v Ladele ET 2203694/2007, in which the English Employment Tribunal found that Ms. Ladele, a Registrar of Births, Deaths and Marriages, had been discriminated against on the grounds of her religion when she was subjected to disciplinary proceedings for refusing to carry out civil partnerships, which she claimed were contrary to her religious beliefs. At first instance, the Tribunal upheld her claim of indirect discrimination. However, this decision was reversed on appeal by the Employment Appeals Tribunal (EAT).
The EAT found that Ms. Ladele had suffered a disadvantage due to the provision, criterion or practice (PCP) imposed by the Council (i.e., that all registrars carry out civil partnerships), but found that the Council had shown that the requirement was objectively justified. The EAT held that once it was accepted that the aim of providing the civil partnership service on a non-discriminatory basis was legitimate, it was proportionate to require Ms. Ladele to carry out the service. It said that, “requiring staff to act in a non-discriminatory way was entirely rationally connected with the legitimate objective”. Ms. Ladele intends to appeal this decision to the Court of Appeal.
Another case concerning the objective justification of indirect discrimination is that of Azmi v Kirklees Metropolitan Borough Council [2007] IRLR 484. In that case, the employer’s PCP was that teachers and teaching assistants should not cover their faces when teaching or assisting. The EAT held that refusing the claimant permission to wear a veil, which she wore for religious reasons, was a proportionate means of achieving a legitimate aim given that:
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It was based on the need for facial expression and contact when teaching younger children;
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It had been decided only after considerable thought, consultation and advice from the relevant education authority and after observing a teaching session during which the teacher wore a veil; and
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The claimant was allowed to wear a veil in any open part of the school.
In the case of Eweida v British Airways plc EAT 0123/08, Mrs. Eweida, a devout practicing Christian, was employed by BA plc as a member of the check in staff. BA’s uniform policy prohibited customer-facing members of staff from wearing any visible item of adornment, unless it was worn because of a mandatory religious requirement and could not be concealed under the uniform.
On a number of occasions, Mrs. Eweida visibly wore a silver cross on a chain around her neck. On two occasions she complied with management requests to conceal the necklace. However on one occasion she refused to conceal the necklace and as a result was sent home without pay.
Her claims of religious discrimination were rejected by both the Tribunal and, on appeal, by the EAT. The EAT held that the purpose of indirect discrimination is to counter group disadvantage and that Mrs. Eweida had not shown that the prohibition on the wearing of jewellery had acted as a barrier to anyone other than herself. In effect, Ms. Eweida had not shown that the wearing of the cross was a mandatory requirement of her religion.
What should employers do?
Given that the majority of these cases are unsuccessful, do employers need to take action or review their practices?
Whilst these cases have largely been unsuccessful, they have resulted in:
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Workplace disruption;
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Use of management time in dealing with issues;
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Media publicity; and
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Legal expenses
Therefore, it is recommended that employers, who are considering imposing measures, should consider whether the measures could result in indirect discrimination against particular employees. If so, employers should look at whether there are other ways of achieving a similar result without imposing an indirectly discriminatory measure. If this is not possible, they should then ensure that they are able to justify the measure irrespective of religious beliefs.
One further practical step is to take positive steps to learn about the beliefs and requirements of other religions. With an increasingly diverse workforce employed in Northern Ireland, there is more likely to be employees practising religions other than the two main religions traditionally practiced in Northern Ireland. How can an employer know if a policy indirectly discriminates against some of its employees on the grounds of their religious beliefs if it does not know about the requirements of those beliefs? For example, did you know that observant Muslims are required to pray five times a day?
Recent research by the Chartered Management Institute found that two thirds of employers admit to uncertainty about the faith days celebrated by staff and only 1 in three employers have an explicit policy on religion and belief issues. The Institute recommends that employers:
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Update Company polices and procedures to avoid discrimination against staff with particular beliefs, taking into account matters such as prayer time, food and fasting, holy days and festivals and religious dress and symbols.
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Consider the impacts of policy alterations on employees who hold different or no beliefs
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Make sure that managers know the law.
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Communicate new and established polices to all employees through effective channels and create feedback channels.
The freedom to express one’s religion or belief in the workplace is not an absolute right. In determining whether specific practices are to be allowed, there should be an examination of whether such practices may be unreasonable, disruptive or not in the best interest of the organisation in terms of its smooth and effective way of operating. Requests should always be assessed on an individual basis. Factors to be taken in to account include cost, impact on business operations, inconvenience to other employees and tension with other employees (whether of different religious belief groups of no religion).
For further information, please contact Sharon McArdle, Associate Solicitor, Employment Department on Belfast 028 9055 3300 or email, sharon.mcardle@tughans.com.
The content of this article is provided for information purposes only and does not constitute legal or other advice.