UK: Religious Belief Regulations

Originally published December 2005

The regulations define religion or belief as "any religion, religious belief or similar philosophical belief". It will be for the Employment Tribunal and the Courts to decide what particular circumstances are covered by the Regulations.

The Regulations apply to all employment and vocational training and include recruitment, terms, conditions of employment, promotions, transfers and dismissal. They make it unlawful for an employer on the grounds of religion or beliefs to:

• apply a criterion, provision or practice which disadvantages individuals of a particular religion or religious belief unless it can be objectively justified;
• subject someone to harassment, victimise them because have made or intend to make a complaint or allegation or intend to give evidence in relation to a complaint of discrimination;
• discriminate against someone, in certain circumstances, after the working relationship has ended.

There is also now a statutory definition of harassment, which amounts to unwanted conduct that violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for them having regard to all the circumstances including the perception of the victim.

In addition there is a genuine occupational requirement defence available to employers. To be able to rely on this position an employer will need to consider the nature of the work and the context in which it is carried out. One example could be certain religious schools which require teachers of that religion.

As is clear from the summary above, many of the concepts in these Regulations are identical to those in the sex discrimination, race discrimination and disability regulations.

It was hoped that there would by now have been number of cases to shed light on how these regulations would impact on employers and employees in the workplace. However, the reported cases have been limited to say the least. There have been two cases in Employment Tribunals.

This was the first case to be brought under the new regulations. Mr Khan was a bus cleaner employed by the Respondent, G & J Spencer Group Plc. He wished to make a pilgrimage to Mecca. The Muslim faith requires that all Muslims make a pilgrimage to Mecca at least once during their lifetime if they are able to do so. He requested six weeks’ leave made up of five weeks’ annual leave and one week of unpaid leave. He received no answer from his employer and so, on the advice of his union, submitted a further, written request. He still received no reply but his manager told him that he should assume that he could go.

On his return Mr Khan was suspended without pay pending an investigation into unauthorised absence and subsequently was sacked for gross misconduct.

Mr Khan was successful in his claims for unfair dismissal and indirect discrimination on the basis of religion. The Respondent did not defend the claim and no evidence was put forward either that the company had tried to accommodate Mr Khan’s request nor that it had any cogent reasons for refusing it.

The Tribunal found that Mr Khan’s manager had, at least informally, sanctioned the leave. Mr Khan was awarded £1,590.00 for unfair dismissal and £8,224.00 as compensation for unlawful discrimination.

This case illustrates the care that needs to be taken when religious belief is involved. If Mr Khan had, on the same basis, taken an extra week at the seaside or for a non-religious reason, would he have received such an award? One can only speculate. It is (from our point of view) a pity that the claim was undefended.

Before the introduction of the new regulations it was accepted law that an employee’s freedom to manifest his religious beliefs was not infringed by dismissal for refusing to agree to Sunday working. That was recently confirmed in the case of Copsey v WWB Devon Clays which went to the Court of Appeal and was decided under the Human Rights Act. The theory is that if you wish to go to church on Sunday, your human rights are not infringed even if you have to resign and look for another job.

Disputes relating to individuals’ right to practise their religion are not new (remember Chariots of Fire?). On the basis of Copsey, the Human Rights Act does not protect individuals from the adverse consequences of exercising that right.

Copsey was decided before the religious discrimination regulations came into force. It would now be open to the Claimant to argue indirect discrimination on the grounds that a greater number of Christians then non-Christians are disadvantaged by having to work Sundays.

That is what happened in the case of Williams- Drabble v Pathway Care Solutions Limited.

The Respondent, Pathway Care Solutions Limited, ran a residential care home at which the Claimant, Ms Williams-Drabble, worked. At her interview for the job, the Claimant informed her employer that she could not work on a Sunday because she attended the local Church’s Sunday service. This wish was initially accommodated. However the Respondent subsequently imposed a change in the work rota so that she would have to work on Sundays and told her that if the new rota was not acceptable to her then she would have to resign. She did so and claimed constructive dismissal along with direct and indirect discrimination.

The Nottingham Employment Tribunal found that the Claimant had been discriminated against on the grounds of her religious belief and that she had suffered a disadvantage by being prevented from attending her regular church service. The Employment Tribunal found that the Respondent had applied a requirement that put practising Christians at a disadvantage and that the Respondent could not justify the change.

Although the number of reported cases is low, they illustrate that employers should be mindful of the potential impact that the new regulations have on employees’ rights to religion and worship.

In particular, employers need to take extreme care in refusing holidays and varying contracts of employment without due consideration of the legislation.

© RadcliffesLeBrasseur

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.