Employment laws generate a lot comment. Hardly a day goes by without the media reporting scare stories about the employment rights of UK employees, which are depicted as being anti competitive, unduly restrictive and in many cases overly generous.
Each month, we are exposing some of the most common employment law myths and explaining the reality behind them. We are not pretending that employment law is easy – it isn’t, but generally it should not be difficult to get the basics right.
So far we have tackled the following myths:
1. In order to dismiss an employee, you must follow a particular procedure and if you do so, you can safely dismiss.
2. It’s not possible to retire employees anymore.
3. You can’t make a woman on maternity leave redundant.
4. Parents have the right to work part time.
5. An employer has to accept an employee’s resignation before it will take effect.
6. Employers must provide exiting staff with a reference.
7. Employers do not need to do pre-employment immigration checks on British or EU recruits.
8. You can vary an employment contract by giving notice.
9. An employee’s entitlement to notice is based on how often they are paid.
This month we look at whether employers have to accommodate all religious sensibilities and beliefs.
Myth
Employers have to accommodate all religious sensibilities and beliefs.
Busted
It is unlawful for an employer to discriminate against a member of staff because of their religion or belief (or on any other protected ground). Protection is also afforded to non-believers who have the same rights as believers.
An employee is protected from direct discrimination, indirect discrimination, harassment and victimisation. There is no minimum period of service required and protection is also available to applicants who apply to you for a job.
Employees will only be able to succeed with a direct discrimination claim if they can establish that they have been treated unfavourably because of their religion or belief when compared with someone who does not share that belief or beliefs. There is no need for the employee to identify a real person to compare themselves with. If there is no such person, the Tribunal will consider how a ‘hypothetical’ comparator would have been treated.
The following examples provide some guidance:
- A Muslim teacher who was dismissed for not removing her veil when teaching was not directly discriminated against because ‘face to face’ contact was necessary and a non-Muslim teacher who covered their face would have been treated in the same way.
- A Christian registrar who was disciplined because she refused to carry out civil partnership duties on behalf of her employer because same-sex relationships were against her religious beliefs was not directly discriminated against. This formed part of her duties and another registrar who also refused would have also been disciplined.
Employers can therefore discipline (and in serious cases dismiss) staff who are not willing to subordinate their beliefs temporarily in order to fully perform their role provided they can establish that another person, not sharing their particular beliefs would have been treated in the same way.
It is more common for difficulties to arise where employers have a “provision, criterion or practice” (such as a policy) that applies to the whole workforce, but which adversely affects a protected group. This is known as indirect discrimination and employers must make changes to the offending provision, criterion or practice unless the business can demonstrate a genuine business need for the policy and can justify retaining it, without change.
Particular difficulties can arise in relation to:
- Religious workers who wish to take time off (or to permanently adjust their working patterns) to observe religious prayer or festivals.
- Non-discriminatory working practices which directly conflict with the protected characteristics of religion or belief and those of another protected group (for example, some religious groups have strong views on homosexuality).
- Dress codes.
Ordinarily, if there is another, non-discriminatory way of achieving the same objective or accommodating the employee’s request, you will be expected to do so. However, if you cannot do so (and have evidence to prove this) you do not have to make any changes.
Employers are not required to prioritise certain protected characteristics against others, or make value judgments about competing views. If you do so, the scope for discrimination claims is obvious.
One belief does not necessary ‘trump’ another and rights in relation to religion and belief are not absolutes.
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