The fundamental principle of discrimination law is simple: ensure that all employees are treated equally, fairly and with dignity at work. However, the reality for employers can be far from straightforward. Whilst there are clear benefits for businesses in recruiting a diverse and culturally varied workforce, this can lead to disputes when attempting to reconcile the potentially conflicting rights of all employees.
This clash of rights arises when employers are faced with the difficult balancing act of allowing individuals to manifest their religious beliefs whilst protecting employees from sexual orientation discrimination. Although the vast majority of religious employees have no issues in working with and providing services to lesbian, gay, bisexual and transgender people, there have been a number of cases in recent times which highlight the potential for conflict between the two groups. Last year there was extensive media coverage of the Christian guest house owners who were ordered to pay damages after turning away a gay couple for requesting a double room. More recently, a bakery in Northern Ireland could face legal action after its Christian owners refused to fulfil an order from a customer requesting a cake iced with a slogan in support of gay marriage.
When such issues arise in the workplace, how can employers ensure that they are respecting religious beliefs and personal conscience whilst ensuring that others are not discriminated against?
Scope of Discrimination Law
Discrimination can occur at any stage of the employment relationship. From advertising and interviewing during the recruitment process, to managing the day to day intricacies of employees’ working lives, through to dismissal and post-termination issues associated with providing references and enforcing restrictive covenants, employers must always be mindful of the pervasive nature of discrimination law. Not only must they be aware of their own treatment of the workforce, but they also risk being held liable for the discriminatory actions of their employees, even if carried out without the employer’s knowledge or consent, and any third parties who are acting with their authority, such as recruitment agencies. In addition, employers could potentially face discrimination claims from a wide range of individuals for whom they may not usually consider they owe a duty to protect, including agency workers, consultants and directors.
The Equality Act 2010 sets out the scope of the protection against discriminatory treatment on the grounds of a number of “protected characteristics”: religion or belief, sex, gender reassignment, marriage or civil partnership, pregnancy or maternity, race (including ethnic or national origin, nationality and colour), disability, sexual orientation, and age.
Discrimination law is constantly evolving as the courts and government attempt to ensure that adequate protection is available for the increasingly diverse society which makes up today’s modern workplace. Recently a tribunal found that an employee could be discriminated against on the grounds of her caste, despite the fact that caste is not expressly a protected characteristic under the Equality Act 2010 (Tirkey v Chandok and another (2013)). Conversely, the Court of Appeal has confirmed that an individual cannot be directly discriminated against on the grounds of immigration status because it does not fall within the definition of nationality (Onu v Akwiwu and another; Taiwo v Olaigbe and another (2014)). Most recently, a study conducted by linguist Dr Alex Baratta has called for “accentism” to be addressed in the same way as racism and sexism after it was found that people with strong regional accents feel pressurised to “posh up” when talking in the workplace.
Employers must therefore attempt to get to grips with the ever changing landscape of discrimination law. Recently a number of cases have highlighted the increasing difficulty employers face when attempting to respect the religious beliefs of their employeeswhen such beliefs may conflict with the needs of their business or the rights of other employees or customers.
As a starting point, the legislation is clear that employees cannot be treated less favourably than others because of religion or belief without risking a claim for direct discrimination. Nor can employers indirectly discriminate against such employees by operating a provision, criterion or practice which disadvantages employees of a particular religion unless it can be objectively justified. Employees cannot be harassed by treatment relating to religion or belief, nor can they be victimised for making or intending to make a complaint that they have been discriminated against because of their religion or belief.
When is a Belief not a Belief?
The protection of the Equality Act 2010 extends to any religion, religious belief or philosophical belief. In today’s age of information sharing and countless forums for personal expression, there is a huge divergence of beliefs being circulated and discussed. When these opinions make it into the workplace and cause conflict with an employee’s duties or their relationship with their colleagues, employers must identify whether the views expressed by employees amount to a “belief” and are therefore protected by discrimination law.
The significant amount of case law in this area has confirmed that, in order to amount to a “belief”, it must be genuinely held, amount to more than a mere opinion and be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others. In this way, tribunals have concluded that individuals are protected where they have a belief in climate change, demonstrate a lifestyle choice to preserve the sanctity of life extending to an anti-fox hunting belief, and show a commitment to the higher purpose of public service broadcasting.
With the national elections looming, employers may find themselves having to deal with employees expressing their political opinions in the workplace. As beliefs must be “worthy of protection in a democratic society”, this raises questions about whether employees are protected from unfavourable treatment if they express political views which are extreme or repugnant to others. The case of Redfearn v United Kingdom (2012) involved a bus driver who was dismissed by his employer because of his membership of the BNP. The European Court of Human Rights confirmed that employees should be protected from being dismissed on the grounds of their political opinion or affiliation, regardless of whether that opinion is offensive or disturbing.
Whilst there is highly likely to be further case law in this area, it is clear that employers must tread carefully when considering taking action to address controversial opinions expressed by employees, as there is the potential for a wide range of beliefs to be caught by the current discrimination legislation.
Religion, Business Needs and Sexual Orientation
There are times when an individual’s religion can conflict with the duties they are required to carry out as part of their role. The case of Eweida and others v United Kingdom (2013) is a high profile example of the considerations employers must take into account when faced with an employee who refuses to comply with its policies on religious grounds. The facts of this case are well-documented but provide useful guidance as to where employers should draw the line between acceptable expression of faith, competing business interests and unacceptable discrimination in employment.
Four Christian employees argued before the European Court of Human Rights that they had been subjected to unjustifiable detriment by their respective employer’s policies on the grounds of their religious beliefs. Of all the employees, Ms Eweida was the only one who successfully argued that her right to freedom of thought, conscience and religion had been violated by her employer. She worked for British Airways as a member of their check-in staff and wished to wear a plain silver cross on a necklace over her uniform as an expression of her faith. BA refused because it was contrary to its uniform policy.
The Court found that BA’s refusal to allow Ms Eweida to visibly wear a cross did interfere with her right to manifest her religion. However it recognised that such interference was potentially justifiable because the manifestation of her belief might have an impact on others. It therefore considered whether a fair balance had been struck between the competing rights of the individual and of the community as a whole.
The Court found that BA had not managed to strike a fair balance. Its motivation for not allowing Ms Eweida to wear the cross was to project a certain corporate image to its customers. However Ms Eweida’s cross was discrete and would not have detracted from her professional appearance. There was no evidence that wearing authorised religious clothing such as turbans or hijabs had a negative impact on BA’s brand. Whilst the claim was progressing BA had even amended its uniform policy to allow employees to wear symbolic religious jewellery. Clearly the policy was not of crucial importance to the business and could not justify infringing Ms Eweida’s right to manifest her religious belief.
In contrast, the Court found that the respective employers had acted fairly in relation to the other three employees. In similar facts to Ms Eweida, Mrs Chaplin was a clinical nurse who wished to wear a crucifix on a necklace at work because she believed that displaying it to others was an essential part of her faith. Again, her employer refused to allow her to wear the cross because it was contrary to its uniform policy. However, its reason for doing so was to protect the health and safety of nurses and patients, which was of inherently greater importance than the justification put forward by BA in Ms Eweida’s case. Mrs Chaplin’s employer had also attempted to resolve the situation amicably by suggesting reasonable alternatives, such as wearing a cross as a brooch or under a high necked top, but the employee did not feel this would be sufficient to comply with her religious convictions. As a result her employer had acted proportionately and her case was dismissed.
Next, Ms Ladele was a registrar of births, deaths and marriages who believed that same-sex partnerships were “contrary to God’s law”. After the introduction of the Civil Partnership Act 2004, the London Borough of Islington Council required all of its registrars to deal with civil partnership arrangements. After she objected, it proposed that Ms Ladele could be excused from officiating at civil partnership ceremonies but that she would be required to undertake other work relating to civil partnerships. Ms Ladele refused to do so because of her religious beliefs. The Court accepted that there was a difficult balancing act in this case due to the extremely serious consequences for Ms Ladele, who lost her job as a result of the strength of her religious convictions, and the fact that the Civil Partnership Act had not been in force when she joined the Council. However it ultimately found that the Council had acted fairly in dismissing Ms Ladele because its decision was motivated by the need to protect the rights of others and ensure that the public was not treated differently by its employees due to sexual orientation.
Finally, Mr McFarlane was a sex counsellor who refused to counsel same-sex couples. Similarly to Ms Ladele, he was dismissed by his employer but had known when he joined the organisation that it operated an equal opportunities policy and that it was committed to providing a counselling service without discrimination. As a result, his employer’s need to protect the rights of others justified his dismissal for manifesting his religious belief.
Overall employers can take comfort from the findings of this case. The key is to determine the extent to which respect for religious belief can be preserved and, if it is necessary to limit its manifestation in the workplace due to business needs or to protect the rights of others, ensure that there are strong and convincing justifications for doing so.
Practical Tips for Employers
The importance of taking steps to prevent and recognise potential complaints of discrimination cannot be understated. Dealing with discrimination arising in the workplace can take up considerable management time and, because such complaints intrinsically involve personal and emotional subject matter, they can have a highly detrimental effect on staff morale. If matters cannot be resolved at any early stage, employers face the onerous task of defending a discrimination claim in an employment tribunal, involving a considerable investment in terms of management time and legal costs, which are highly unlikely to be recoverable even if the claim is ultimately dismissed. If the worst happens and the employee’s claim is successful, there is no limit to the amount of financial compensation an individual can be awarded by the tribunal.
It is therefore essential that employers implement robust policies on equal opportunities and anti-discrimination, harassment and bullying. Having express written policies makes it clear to the workforce what will be considered unacceptable behaviour and demonstrates that the business takes discrimination extremely seriously. Ensure that the policies are brought to the attention of the workforce at the beginning of employment and provide regular equal opportunities and diversity training to prevent issues from arising in the first place and, failing that, to enable them to be recognised and addressed at an early stage.
Employers should also set up a clear grievance procedure for dealing with any complaints. Any issues should be thoroughly investigated and resolved to the satisfaction of the employee, which may include taking appropriate disciplinary action against the perpetrators of discriminatory conduct. Employees are much less likely to bring a tribunal claim if they feel that their employer has taken their concerns seriously and shown that discrimination will not be tolerated.
Finally, employers should be sensitive towards the religious beliefs of its individual employees. Where possible, try to accommodate any requests for flexibility in working arrangements, such as allowing time off to pray for Muslim employees, not scheduling a Christian employee to work on Sundays and permitting religious dress where it does not adversely impact health and safety. Treating employees with fairness and respect will pay dividends for employers who subsequently have to change working practices so that employees’ may be hindered from manifesting their religious beliefs. By maintaining open lines of communication with staff and explaining the business reasons for any changes, employees are more likely to be understanding of the situation.
If, despite its best efforts, an employer does find itself facing a discrimination claim, the above steps will demonstrate to a tribunal that it has behaved proactively to ensure that respect for religious belief has been observed wherever possible.
Employers must make every effort to ensure that employees are not discriminated against because they hold certain religious beliefs. However this does not necessarily mean that those employees are entitled to manifest those beliefs regardless of the impact on others or the requirements of the business. Whilst employers can face a difficult balancing act between respecting the individual beliefs of its workforce and ensuring that employees carry out their contractual duties, it is possible to avoid liability for discrimination claims by taking practical steps to promote equality and fairness in working practices.
Syma Spanjers, Associate, Charles Russell LLP