The Equality and Human Rights Commission has published a guide for employers on religious rights in the workplace following the recent European Court of Human Rights judgment in Eweida and Chaplin v the United Kingdom and Ladele and McFarlane v the United Kingdom.
Highlights of some good advice from the guide are set out below.
Q1: Are all religions or beliefs protected in the workplace?
A1: As an employer, you are not expected to be an expert in religion or belief issues. However, you should be aware that all generally recognised religions or beliefs are protected unless it is very obscure, not genuine or is objectively unreasonable. A belief must be worthy of respect in a democratic society, compatible with human dignity and not conflict with the fundamental rights of others. For example, druidism, paganism, vegetarianism are all protectable beliefs as is a belief in environmental or ecological issues.
Q2: Are employees who do not have any religion or belief protected?
A2: Yes, humanists and atheists are also protected from discrimination at work.
Q3: What kind of religion or belief requests do I need to be aware of?
A3: The most likely requests are likely to cover a manifestation of belief at work such as wearing certain symbols of faith or forms of dress, time off work for religion or belief reasons, and changes to work duties.
Q4: What if an employee’s request is not shared by others of the same religion or belief or it is not a doctrinal requirement?
A4: Remember that not every person manifests their beliefs in the same way. Also, the request does not need to emanate from any doctrinal requirement as long as the manifestation of the employee’s belief is genuinely held. A good example would be the wearing of the crucifix or the avoidance of Sunday working.
Q5: We have a strict uniform policy to promote our corporate brand. Must we change our policy because some of our staff members have certain religious requirements or observances?
A5: You may have employees who may wish to wear head scarves, turbans, kippahs (skull caps), kara (a Sikh steel bracelet), Star of David, a crucifix or have a beard as part of their religious observance. Such requests should be accommodated where possible unless you can demonstrate that entertaining the request could impact negatively on your corporate image.
Q6: Can employees refuse to work on certain days in the week due to religious observance?
A6: Employees of the Muslim faith may ask for time off work to pray in the mosque on Fridays or during Ramadan or to take annual leave for pilgrimages. Some Christians may want to avoid working on Sundays due to the Sabbath. Such requests should be carefully considered and weighed against your operational requirements.
Q7: Can employees refuse to perform certain types of duties because they conflict with their religion or beliefs?
A7: In some cases, employees may ask to adapt their duties so that they can avoid contact with alcohol or meat for religion or belief reasons. Where possible, their duties should be modified if this is operationally possible for your business. It would, of course, be difficult for a Muslim employee working as bar staff to request that he does not have contact with any alcohol or for a chef, who is vegetarian, to request that they do not have any contact with meat where this is integral to their job description.
Furthermore, it would be very difficult for employees to refuse to perform their contractual duties because of their religion or belief if doing so would be discriminatory towards customers or service users. So, if you have a Christian employee working in sales who refuses to talk with a gay or lesbian couple, that would be unlawful. The law is clear that, when someone is providing a public service, they cannot discriminate unlawfully against customers or service users because of their own religion or belief.
However, the request should be considered if it is possible to allow employees to opt out of part of their jobs for a religion or belief reason because other employees can cover for them without negatively affecting the effectiveness of your business or service to the public or compromising the integrity of your diversity policy.
Q8: So when can an employer say 'no' to an employee’s request for change?
A8: As an employer, you will need to balance the religion or belief needs of an employee with your legitimate business needs and the interest of others. Factors that you can take into account include:
- the cost, disruption and impact to your business if the request is accommodated;
whether there are any health and safety risks to your business having regard to the employee’s job
eg the wearing of certain faith symbols or jewellery;
- the disadvantage to the employee requesting the change;
- the impact of any change on other employees, customers or service users; or
- whether your work policies and practices to ensure uniformity and consistency are justifiable.
Q9: Can employees promote their religion or belief at work?
A9: Proselytising will not be allowed if in doing so they are harassing other employees, customers or service users. For example, if an employee makes it clear to another colleague that she is not comfortable carrying on with a discussion about Christianity’s perspective on abortion or same sex marriage and the other colleague does not stop the unwanted conduct, this may amount to harassment under the Equality Act 2010.
Q10: What about employee discussions about religion and sexuality on social media like Facebook?
Q10: In Smith v Trafford Housing Trust , the High Court had to consider whether a Christian employee who had made comments about gay marriage on Facebook had committed misconduct. The employee posted a link on his Facebook wall to a BBC news article, 'Gay church 'marriages' set to get the go-ahead', adding the following comment of his own: 'an equality too far.' A colleague posted a comment on his Facebook wall, 'Does this mean you don't approve?'.
The employee replied saying 'marriage is for men and women if the state wants to offer civil marriage to same sex then that is up to the state but the state shouldn't impose its rules on places of faith and conscience.' The comments about gay marriage in church appeared among miscellaneous entries about sport, food, motorcycles and cars.
The court held that the employee was entitled to express his views about gay marriage on Facebook and that doing so did not constitute misconduct. It was clear from the employee's Facebook page that he was not using the medium for work-related purposes, despite the fact that many of his Facebook friends were colleagues. The court acknowledged that 'diversity' is a concept which, by its very nature, may involve differences of opinion which cannot be reconciled and, in some cases, cause upset and offence.
Although the High Court held that the Facebook page was considered a personal page and not related to work, there have been tribunal cases where it was held that employees should not have any expectation of privacy with their Facebook profile. As an employer, you are entitled to take disciplinary action if an employee posts genuinely judgmental, disrespectful and offensive Facebook comments which identifies them as working for your business. However, beware that an over-zealous reaction to a moderate expression of opinion made on a personal Facebook page may lead to legal action by the employee.
For further information about religion or belief in the workplace visit the Equality and Human Right Commission website.