What is religious discrimination?

Religious discrimination employment law cases have been in the news for several years and with four important UK cases going to the European Court of Human Rights in September 2012, we thought we’d have a look at this in more detail. Religion or belief is a ‘protected characteristic’ that shouldn’t be discriminated against, as outlined in the Equality Act 2010:

• Religion includes any religion. It also includes a lack of religion, in other words employees or jobseekers are protected if they don’t follow a certain religion or have no religion at all
• Under the Act, a religion must have a clear structure and belief system. To be protected, a belief must satisfy various criteria, including that it’s a weighty and substantial aspect of human life and behaviour
• Discrimination because of religion or belief can occur even where both the discriminator and recipient are of the same religion or belief.

The cases going to Strasbourg in 2012 were about practising Christians who believed they were discriminated against in the workplace – and relate to the freedom for Christians to wear crosses at work and for a Christian to refuse to support same-sex relationships. All the cases have been through the extensive English Court system and all four applicants invoke article nine (freedom of religion) and article 14 (prohibition of discrimination) of the European convention on human rights in their claims. The test cases may define the limits of religious liberty in the UK.

What’s been happening ?

In 2012

Following several rulings by Judges against Christians who had claimed their faith bought them into conflict with the law or their employer, a report from a cross-party Christian parliamentary group found that Britain was failing to protect the rights of Christians to follow their faith. The Group analysed 32 recent cases where Christians claimed they received unfair treatment under the law. Cases in their investigation included:

• Celestina Mba, a Christian who claimed she was forced from her job as a carer for disabled children with Merton Council because she refused to work on Sunday. This was a complicated case, which appears to have involved misunderstanding on both sides of what was expected/required. Ms Mba eventually resigned and claimed indirect discrimination on the grounds of religion or belief and constructive dismissal. The Employment Tribunal held that the employer’s business requirements outweighed Ms Mba’s desire not to work on a day she believes is a day of worship and rest. The Tribunal also found that Ms Mba’s belief about Sunday working wasn’t a ‘core component’ of the Christian faith and rejected her claims. (Update: In 2013 an Employment Appeals Tribunal found that her Employer was justified in not accommodating her Christian observance of Sunday’s)
• Gary McFarlane, a Christian relationship counsellor was sacked by Relate, the counselling service, for refusing to give sex therapy to gay couples. Mr McFarlane claims his dismissal was religious discrimination, but lost his case in Strasbourg in mid 2013
• Lillian Ladele, a registrar of births, deaths and marriages from London who declined to officiate at same-sex civil partnership ceremonies, claimed her dismissal constituted religious discrimination, but also lost her case in Strasbourg
• Nadia Eweida, who was sent home from her job as a British Airways check-in clerk for wearing a silver cross. Wearing visible jewellery was in breach of the Company’s dress code, unless it was a religious requirement. Miss Eweida claimed religious discrimination and harassment, even though she accepted that wearing the cross was a personal preference and not a requirement of her religion, but was unsuccessful at an Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal. Miss Eweida’s won her case at the European Court of Human Rights
• Shirley Chaplin, a nurse from Exeter, who was barred from her job in a hospital for wearing a cross. Ms Chaplin’s case was also heard in Strasbourg, but lost in 2013
• Peter and Hazelmary Bull who owned a Guest House in Cornwall, who refused to allow a gay couple to stay in a double room, so there religious discrimination case defeated at the Court of Appeal in 2012

The group’s report found the Equality Act 2010 had set the rights of different groups in competition with each other, with those of Christians relegated below those of the others.

The group called on the government to consider requiring Judges “to weigh up whether employers have taken ‘reasonable’ steps to accommodate the religious beliefs of workers,” to help balance ‘competing’ rights, and ensure that “religious liberty and identity is preserved by accommodating those who by their deeply held beliefs would prefer not to provide them certain goods and services”.

Summer 2012:

A London-based retailer was found to have forced a Muslim employee to resign after she wore a headscarf to work. Ms Farrah bought a claim for unfair discrimination and direct religious discrimination against her former employer, Global Luggage Company, after the Company moved Ms Farrah to a different store to maintain it’s “trendy” image and later forced her to resign.

Ms Farrah worked in both the Oxford Street and Piccadilly branches of the shop, however the day after she work a headscarf to work one of the Company directors moved her to the Oxford Street store and changed her rota so that she no longer worked at the Piccadilly store.

Ms Farrah asked whether the reason for the move was because she had worn a headscarf and she was told that the company was “trying to maintain an image at Piccadilly” and that it was “trying to be trendy”. A couple of months later Ms Farrah was forced to resign after she took an extended lunch break. The Tribunal ruled that the Company had ‘seized on the claimant’s admitted misconduct as a pretext for dismissing her’ and that the real reason for her forced resignation was that she had worn a headscarf.

Ms Farrah won her claim for unfair dismissal but lost her claim for direct religious discrimination. However, the Judge said that had she brought a claim for indirect discrimination instead they would’ve likely been ruled in her favour! In 2016 the Employment Appeal Tribunal confirmed this was unfair dismissal.

This case followed David Cameron’s announcement in July 2012 that he’d ‘change the law’ to allow people to wear religious symbols at work, when commenting on Nada Eweida’s case at Prime Minister’s Questions in Parliament.

His words were criticised by some as the government is opposing the application to the European Court of Human Rights of this and the other cases. Employment law experts have commented that “specifically changing the law to allow religious symbols to be worn seems an unnecessary step – there is no rule banning religious symbols at work… any new law would cause more problems than it solved.”

Other examples about Dress codes:

• In May 2013 a row broke out about Virgin Trains new ‘flimsy’ red shirts, when female employees complained the garment was inappropriate because dark underwear could be seen through it (male colleagues were required to wear a different shirt). Virgin Trains gave each female employee a £20 voucher to buy suitable underwear to wear under the shirt
• In 2013 also, a muslim woman employed as a waitress at a Mayfair bar, bought a successful claim for sex discrimination when she was asked to wear a tight fitting red dress during the summer, which she claimed made her ‘feel like a prostitute’. Male colleagues were required to wear a loose-fitting black shirt
• In Azmi v Kirklees Metropolitan Borough Council, 2007, the Employment Appeals Tribunal found the Employer had not unlawfully discriminated against Mrs Azmi, a teaching support worker, by refusing to allow her to wear a veil in the classroom. The Employer had evidence that children did not engage as well with Mrs Azmi when she was wearing her veil as when she was not, and therefore it impacted on her effectiveness in the role. The EAT found that this was indirect discrimination but it was justified
• In March 2016 a French case will go to the European Court of Justice – in Bougnaoui v Micropole Univers – about wearing of an Islamic headscarf. The employee was told by her employer to remove the scarf while visiting a client, after a customer complained about her appearance; the employee refused to do this and was dismissed. The ECJ will consider whether the need to adopt a ‘neutral appearance’ with a client is a genuine occupational requirement of a job. In July 2016 the Advocate General gave her opinion in a preliminary opinion that Bougnauoi had been discriminated on the grounds of religion or belief
• Another case will go the ECJ on the same day, a Belgian case Achbita – to consider whether prohibition on Muslim women wearing a hijab at work constitutes direct discrimination where the employer’s rules prohibits all employees from wearing any outward signs of religious, political or philosophical beliefs. At the end of May 2016, the Advocate General gave her opinion, in advance of the full binding ECJ decision, which was that an Employer can prevent a Muslim employee from wearing an Islamic headscarf if the ban is based on a general rule prohibiting political or religious symbols at work
• In March 2017 the ECJ gave judgement on the Achbita and Bougnaoui cases and said that a dress code which has the principle of showing neutrality to the company’s clients or customers, is NOT direct discrimination against any religion. It may however be indirect discrimination unless the employer can justify the dress code; so the employer must show a legitimate aim (in theses cases neutrality to clients and customers) and show that their way of achieving this aim is appropriate and proportionate. Both cases have been referred back to the local (e.g. French and Belgian) courts to have the final decision on whether discrimination occurred.

So, Employers who have/want dress codes need to consider:

How they can justify why it’s necessary so it doesn’t discriminate on religious or sex grounds. It’ll be easier to justify a dress code if it’s on Health and Safety grounds or because it has a positive impact on the employees performance, or where it’s only applied to employees who come into direct contact with the general public or clients. It’ll be harder to justify if it’s for ‘corporate image’ grounds only.

There has been much debate at the end of summer 2013 about whether Niqãbs should be banned for front-line NHS workers. The question that needs to be asked is – is it a proportionate means of achieving the legitimate aim of communicating effectively with patients.

You can read our Guide to Grooming and Dress Code Policies here.

Asking about religious dress in job interviews:

Is it possible to ask about religious dress during a job interview? An Employment Tribunal ruling in August 2013 said yes.

In Begum v Pedagogy Auras Ltd t/a Barley Lane Montessori Day Nursery, Ms Begum claims that the company with whom she had applied for a job as a nursery assistant had discriminated against her because of her religion by refusing to allow her to wear a jilbab at work.

The Employers position was that during the interview they discussed policies and procedures and the discussion turned to uniform. One of the interviewers said she thought Begum’s jilbab was particularly long and thought this could be a potential trip hazard; Begum was asked if she could wear a shorter jilbab to work.

The Tribunal found that the employer did not at any time tell Begum she that could not wear a jilbab while working at the nursery; and that the nursery employed a number of other Muslim women who changed from a long jilbab into a shorter one when they arrived at work.

In 2015, the Employment Appeal Tribunal agreed with this decision. The Tribunal didn’t believe the claimant had been offended by this proposal at the time, she was expected by the Employer to start work. However, she claimed she had suffered a detriment by reason of the manifestation of her religious belief, as she was unable to accept the job if she could not wear a jilbab of an appropriate length. The Tribunal found there had not been any discrimination, as the employer would allow her to wear a jilbab if it didn’t constitute a trip hazard. This practice was applied by the Employer to all staff equally. The Tribunal found that if there had been any indirect discrimination on grounds of religion it was justified as it protected the health and safety of the staff and children.

So, interviewers who have genuine concerns about items of clothing or jewellery posing health and safety risks are entitled to discuss their concerns with a potential employee, provided they do so in a sensitive manner and alternative options are discussed with the employee.

Religious Discrimination cases since 2014:

In Grace v Places for Children Ms Grace was dismissed and bought a discrimination claim which was not upheld. The Employment Appeal Tribunal examined the line between the innocent expression of an employees’ religious beliefs at work and the inappropriate manifestation of religious beliefs in the workplace that justified a misconduct charge.

Ms Grace was a nursery manager who was dismissed after nine months. The Employer’s reason for dismissal was that she acted inappropriately by holding bible training sessions at work where she was considered to have harassed other members of staff with her Christian views. She had been told it was unsuitable to have discussions about God in the workplace. The EAT found that she had been treated as she had not because she had manifested her religious beliefs but because of the way in which she manifested those beliefs.

2015/16 update:

At the end of March 2015, the Deregulation Bill came into force allowing Sikhs not to wear safety helmets in all work environments – this came into effect on1st October 2015 (Sikhs were already exempt from wearing safety helmets in the construction sector, but were required to wear helmets in lower risk workplaces, such as factories, warehouses and transport). There will remain a few exceptions such as the armed forces and emergency response situations where turbans won’t be allowed.

In Fhima v Traveljigsaw Ltd in 2015, a Jewish applicant who was turned down for a job because she couldn’t work on Saturday’s, won her discrimination claim. A Tribunal found this was indirect discrimination. The claimant applied for a job in a car hire company’s call centre and said at the interview that she could not work on Saturday’s. The Company told her it couldn’t offer her the job because call centre employees were required to work on Saturday. The claimant brought a claim for religious discrimination on the basis that the employer’s Saturday working requirement put her at a disadvantage because of her religious beliefs. The Employer was order to pay £17,291 in compensation and to review its policies to comply with the Equality Act.

In 2016 in Gareddu v London Underground, an employment tribunal found that London Underground hadn’t committed religious discrimination when they turned down an employee’s request for five consecutive week’s holiday to attend religious festivals. Mr Gareddu, is a Roman Catholic from Sardinian who goes back to Sardinia in August every year to attend a series of religious festivals with his family. Previously, London Underground had allowed him to take five weeks leave in the summer, but after a change of management he was told that he could not continue doing this from 2014, as this was unfair to other staff in the small team he worked in. He was allowed to take the same leave in 2014 but was told this could not be agreed again, he could only take 15 days holiday in future. Mr Gareddu raised a grievance which was rejected as the Employer believed his wish to attend a large number of religious festivals was a personal choice that didn’t amount to a protected characteristic. The employment tribunal agreed and rejected his religious discrimination claim, finding that his time in Sardinia for five weeks related more to his family arrangements rather than any underlying religious beliefs. In February 2017, the Employment Appeal Tribunal agreed with the Tribunal and rejected his appeal; they accepted that his attendance at festivals in Sardinia each year was a manifestation of his religious belief, but the attendance at the festivals wasn’t the genuine reason for his holiday request, time with his family was.

In Wasteney v East London NHS Foundation Trust, 2016, Ms Wasteney’s claim for religious discrimination because of her treatment by her Employer was not upheld. Ms Wasteney was a supervisor of several staff including a Pakistani Muslim woman referred to as EN. In June 2013, EN lodged a complaint with her employer that Ms Wasteney had tried to impose her evangelical Christian views upon her, knowing that she was a Muslim. This included inviting her to Christian services, sending her tickets to Christian events, seeking to pray with her and laying hands on her and encouraging her to “ask Jesus to come into you” along with other ‘healing’ utterances and giving EN a book about a Pakistani Muslim woman who had converted to Christianity. Because of this complaint, Ms Wasteney was suspended and given a final written warning, which was reduced on appeal to a first written warning; she then claimed discrimination on the grounds of her faith and that the Trust was in breach of Article 9 of the European Convention on Human Rights to manifest her religious beliefs in the workplace. The original Tribunal and the Employment Appeal Tribunal saw the facts as more than “entering a conversation” and dismissed her claim, partly because she had been spoken to informally about her actions a year earlier, about the need for more distinct boundaries between her spiritual and professional life.

In Pendelton v Derbyshire County Council, May 2016, which was an unusual case where Mrs Pendleton was forced by her Employer to either divorce her husband or lose her job! Mrs Pendleton was a teacher at Glebe Junior School and her husband was a teacher at another school who was arrested on suspicion of downloading indecent images of children and voyeurism. He was later convicted of those offences and sentenced to a 10 month term of imprisonment for which he served half of the sentence. Mrs Pendleton was initially reassured by the school that her job would remain open. It was accepted that there was no evidence that she had any knowledge or involvement in the matters for which her husband had been arrested. Mrs Pendleton didn’t condone her husband’s actions, but she decided that she would stay with her husband as long as he was repentant as she was a practising Christian. Glebe School, because she wouldn’t divorce her husband, eventually summarily dismissed her and she won her claims of wrongful and unfair dismissal. She also claimed indirect religious discrimination as the instruction to divorce her husband caused her ‘particular disadvantage’ because of her faith. This claim failed at Employment Tribunal but was upheld at the EAT. There has been criticism of this decision.