Religion, belief or political opinion discrimination

Contents

1. Religion, belief or political opinion discrimination 2. What is the definition of ‘religion’, ‘belief’ and ‘political opinion’? 3. Types of discrimination 3.1. Direct discrimination 3.2. Indirect religious discrimination 3.3. Harassment 3.4. Victimisation 4. Employment practices and religion 4.1. Giving information to your employer 4.2. Time off and facilities 4.3. Religious holidays 4.4. Clothing 4.5. Food 4.6. Religion and sexual orientation in the workplace 5. Positive action 6. What to do next 7. Further information

It’s against the law for an employer to discriminate against you or anyone you associate with because of your (or their) actual or supposed religion, religious belief or similar philosophical beliefs. It is also unlawful to discriminate against you because you are not religious or you have an absence of religious or philosophical beliefs.

In Northern Ireland, employers have an additional obligation not to discriminate against their workers because of their actual, supposed or absence of political opinion.

The anti-discrimination regulations define ‘religion’ or ‘belief’ as any religion, religious belief or philosophical belief. There is no definitive list of recognised religions. To be recognised as a religion, there must be a clear structure and belief system, although if it is not recognised as a religion it may still be recognised as a philosophical belief.

In Northern Ireland, the definition of ‘political opinion’ specifically excludes an opinion which consists of or includes approval or acceptance of the use of violence for political ends connected with the affairs of Northern Ireland, including the use of violence for the purpose of putting the public in fear.

This happens where you are treated less favourably than another worker because of your own religion or beliefs (or political opinion, if you work in Northern Ireland), when compared with another worker of a different religion, belief, or (in Northern Ireland) political opinion, but who otherwise shares the same or similar (but not materially different), circumstances as you (known as a ‘comparator’).

The comparator’s circumstances do not need to be identical to yours (in terms of the type of job, job level, job experience and seniority, etc.) but they must not be wholly dissimilar. If you cannot find a suitable comparator, then a ‘hypothetical comparator’ can be used instead, who would be deemed to have the same employment as you (such as your title, role, level, etc.). An Employment Tribunal (or Industrial Tribunal in Northern Ireland), has the power to decide the particular circumstances of a hypothetical comparator (such as their personality).

The law also extends to protecting you if your employer treats you less favourably based on:

• Their perception of your religion, beliefs, or, for workers in Northern Ireland, your political opinions, regardless of whether or not the perception is correct. For example, you may have been subjected to religious discrimination if you are refused a promotion because your employer perceives you to belong to a particular religious group, but your colleague is promoted and their circumstances are similar to yours, except that your employer doesn’t have the same perception about their beliefs.
• The religion, beliefs, or, for workers in Northern Ireland, political opinions of another person (also known as discrimination by association). For example, if you are able to establish that you are being treated less favourably because you refused to comply with instructions that would require you to discriminate against someone because of their religion, beliefs or, for workers in Northern Ireland, their political opinion, then this may amount to direct discrimination

Your employer could be liable for a direct discrimination claim even if there was no intention to discriminate against you.

Your employer can’t defend a claim of direct religious discrimination by justifying it. There is, however, an exception whereby direct discrimination is allowed in circumstances where it is required in order to comply with another law, or a genuine occupational requirement or applicable qualification. For example, a Roman Catholic school may be able to restrict applications for a scripture teacher to baptized Catholics.

Usually, the only available defence to a direct discrimination claim is proving that there was no discrimination.

This is where formal or informal working practices, provisions or criteria that your employer applies equally to all workers, puts a group of workers who share the same particular religion, belief, or, for workers in Northern Ireland, political opinion, at a particular disadvantage when compared with other workers. It does not matter whether or not this has been done intentionally. For example, if your employer introduced a dress code which requires all workers to go bare headed, those who are Sikhs (and who have to wear turbans as part of their faith), would be discriminated against and would potentially have grounds for an indirect discrimination claim.

Your employer can defend against indirect discrimination claims by justifying the use of the unlawful practice, provisions or criteria, if it can show that its application is a proportionate means to achieving a legitimate aim.

Harassment on the grounds of religion, belief, or, for workers in Northern Ireland, political opinion, happens when another employee or your employer violates your dignity or creates an intimidating, hostile, humiliating, degrading or offensive environment through unwanted conduct relating to you actual, perceived or reputed religion, belief or political opinion or characteristics associated with them.

For example, if your employer makes remarks about your or someone else’s religion, which you or anyone else feels are hostile, your employer could be liable for harassment.

Furthermore the unwanted conduct will be harassment even where it was not intended to be harassing. If it is reasonable to regard the unwanted conduct as having a harassing effect, it will be unlawful. Note that you will not be protected by the regulations if you are over sensitive and unreasonably take offence to an innocent comment.

Employers can’t defend claims of harassment on the grounds that the actions were justified. Employers will be liable for any harassment suffered in the course of employment, regardless of whether they knew about it or not, if they fail to take reasonable steps to prevent it. ‘In the course of employment’ in this case means ‘done to you while at work’ or ‘done to you during work time’. Employers can’t defend a claim of harassment by showing that they did not authorise it.

An employer can, however, escape liability for harassment, if it took reasonably practicable steps to prevent it.

You have the right not to be bullied or made fun of at work or in a work-related setting because of your religion, belief, or, (if you work in Northern Ireland) political opinion. You may also be protected if you’re bullied in the mistaken belief that you’re a member of a particular religion or, if you work in Northern Ireland, a political party. For example, following the 9/11 terrorist attacks, some Sikhs have suffered abuse because they were mistakenly thought to be Muslims.

For more information, see our section ‘Bullying in the workplace’.

Victimisation happens when you are being treated less favourably than another employee because:

• You have asserted your rights under legislation relating to religion, belief or political opinion discrimination
• You have given, or intend to give, evidence or information in a complaint made by another worker regarding discrimination on grounds of religion, belief or political opinion
• You have taken any other action under legislation relating to religion, belief or political opinion discrimination
• You have alleged that your employer or another worker has contravened the legislation relating to religion, belief or political opinion discrimination

For example, you might have grounds for a victimisation claim if you are prevented from going on training courses; subjected to unfair disciplinary action; or excluded from company social events; while comparable employees who did not take the action you did are not subjected to such treatment.

• You don’t have to give information to your employer about your religious beliefs, but if you do, it will help them meet the needs of religious employees. Any information you give should be confidential (and anonymous, if possible).

• Employers don’t have to provide time off and facilities for religious observance (e.g. a prayer room), but they should try to do so where possible. For example, if there’s a suitable room you should be allowed to use it, provided it doesn’t disrupt others or your ability to do your job properly.
• Organisations should consider carefully whether they are inadvertently discriminating indirectly. For example, if team meetings always take place on a Friday afternoon, this may discriminate against Jewish and Muslim staff, for whom Friday afternoon may have a particular religious significance. Employers will not escape liability in an Employment Tribunal (or Industrial Tribunal in Northern Ireland), by showing that discrimination was inadvertent or accidental.

• If you want time off for religious holidays, ask well in advance. Your employer should consider your request sympathetically – but they can refuse if it will affect the business.

• If you wear clothing or jewellery for religious reasons, your employer should make sure any dress code doesn’t discriminate against you. A flexible dress code is usually possible, as long as health and safety isn’t at risk.

• Some religions don’t allow you to eat certain foods. If you don’t want to handle such food (for example, if you work in a supermarket and don’t want to handle pork), speak to your employer. They might be able to manage your request, provided it doesn’t affect the business.

• You may have particular views on sexual orientation because of your beliefs. However, people shouldn’t treat, for example, gay or lesbian colleagues differently. In the workplace, everyone has the right to be treated with respect, no matter what their sexual orientation.

Positive action occurs where an employer does something in favour of one group of employees and not the other. This will obviously result in discrimination against the other employees. Positive action is therefore only permitted under the anti-discrimination laws where certain exceptions apply. Positive action is lawful where employers provide the following to persons of a particular religion or belief, to prevent or compensate for disadvantages linked to that religion or belief, which such persons might suffer when doing the work:

• Access to facilities for training which would help fit them for the particular work;
• Encouragement to take advantage of access to opportunities for promotions or transfers.

This does not mean that employers can discriminate in favour of the members of the group when it comes to choosing people to do the work or fill the posts, as that could be unlawful discrimination.

If you think you’ve been discriminated against because of your religion or belief (or political opinion, if your work in Northern Ireland), or you have a religious requirement that isn’t being met, you can talk to:

• Your employer
• Your human resources department
• Your trade union representative (if you belong to a union)

Keep a written record of any bullying or harassment.

If possible, try to resolve the matter informally, but if not, you can follow your employer’s grievance procedure. If your employer doesn’t have a grievance procedure, you should set out your complaint in a letter and hand it to your line manager. If your line manager is the problem, then hand your letter to your HR manager or your line manager’s supervisor. Your employer should then arrange a grievance meeting with you. If the outcome of the meeting is unsatisfactory, you have the right to appeal to a manager who was not previously involved in your grievance. For more information, see our articles on grievance procedures in England, Wales and Scotland or in Northern Ireland.

As a last resort, you can apply to an Employment Tribunal (or Industrial Tribunal in Northern Ireland). You must take legal advice before doing so. Your application must be lodged within three months of the act of discrimination taking place. If the discrimination extends over a period, you must bring your claim within 3 months from the end of that period.

If you work in Scotland, then you may take your claim to the county or sheriff court. You will have six months from the date of the discriminatory action to apply.

For England, Wales and Scotland, see the Acas guide for employers and employees in respect of religion or belief and the workplace. Acas offers free, confidential and impartial advice on all employment rights issues. You can call their helpline (08457 47 47 47) from Monday to Friday (08:00 – 20:00) or on Saturdays (09:00 – 13:00).

For Northern Ireland, you can get more information from the Labour Relations Agency (LRA ), which offers free, confidential and impartial advice on all employment rights issues. You can call the LRA helpline on 028 9032 1442, from 09:00 to 17:00, Monday to Friday.