Discrimination on grounds of religion or belief

The Employment Equality (Religion or Belief) Regulations 2003 are coming into force on 2nd December 2003.

The Regulations will make it unlawful to discriminate on grounds of religion or belief in employment and vocational training. They will prohibit direct discrimination, indirect discrimination, victimisation and harassment.

Detailed Guidance

The Employment Equality (Religion or Belief) Regulations 2003 are coming into force on 2nd December 2003
The legislation is required to comply with the EC Equal Treatment Framework Directive. This requires the UK to introduce legislation prohibiting discrimination on grounds of age, religion or belief, and sexual orientation within the fields of employment and training. The Regulations will make it unlawful to discriminate on grounds of religion or belief in employment and vocational training and similar regulations will be introduced to deal with sexual orientation discrimination (December 2003) and age discrimination (2006).

"Religion or belief" is defined as "any religion, religious belief or similar philosophical belief". It does not, however, include philosophical or political beliefs unless they are similar to a religious belief. This means, for example, that single-issue campaigners such as anti abortion campaigners will not be covered. As there is no other definition of what religion or belief is covered the courts will have to decide on a case-by-case basis – at the expense of employers who are being sued.

To assist in deciding whether a particular belief is covered by the regulations the government has, however, issued guidance. The guidance suggests that tribunals may consider a number of factors when deciding what is a religion or belief or similar philosophical belief. Those factors include whether there is collective worship, a clear belief system, or a profound belief affecting a way of life or view of the world.

What is covered?

It will become unlawful for an employer to discriminate in a number of ways. These will include all stages of the employment relationship including in recruitment, promotion, the terms and conditions of employment and in dismissing.

The Regulations cover direct discrimination, which is ‘less favourable treatment’ on the grounds of religion or belief. They will also provide protection from harassment and victimisation on grounds of religion or belief. In addition, they prohibit indirect discrimination, which means imposing or requiring any practice that, although of general application, puts members of one religion or belief at a particular disadvantage. For example, a requirement that all employees must work on a particular day which could or should not be adhered to by a religious group would put members of the group at a disadvantage and could amount to unlawful religious discrimination. The defence available to employers in such circumstances is to be able to show that the requirement or condition was justified as a proportionate means of achieving a legitimate aim.

Other issues

Are there any exceptions to the Employment Equality (Religion or Belief) Regulations 2003.

Yes: the main exception is discrimination where there is a genuine occupational requirement that the holder of the job is of a particular religious belief. For example, the job of teacher in a religious school would most probably be considered a post where discrimination should be allowed.

Another exception is where an employer has an ethos based on religion or belief, which means that being of that particular religion, or belief genuinely is a requirement for the person holding the job. Examples are likely to include religious teachers such as priests, members of churches and other similar organisations, and those involved in other religious activities such as retreats, etc. This is a form of permitted discrimination, which, of course, does not lie easily with other forms of discrimination, which are unlawful such as racial discrimination. For example, if most of the members of a particular faith are of one ethnic origin then will relying on this exception be a defence to a charge of racial discrimination based on the same set of facts? In fact, in such a debate reliance will be made on the underlying EU Directive ‘EC Equal Treatment Framework Directive’ which states that the concession regarding genuine and determining occupational requirements for religious groups should not justify discrimination on another ground. Again, this is an issue that will have to be resolved in time by the courts.

The Regulations provide that, in addition to claiming in a tribunal, an employee can serve a questionnaire (similar to those available for claims under the Sex Discrimination, Race Relations and Equal Pay Acts) on their employer. The questionnaire will be admissible as evidence in any subsequent tribunal proceedings and, in deciding whether alleged discrimination took place, the tribunal may take into account any failure to reply, or any equivocal reply, to a questionnaire.

The Employment Equality (Religion or Belief) Regulations 2003 have a similar structure to the Sex Discrimination Act 1975 and the Race Relations Act 1976 and so, amongst other things, apply to any contract "personally to do any work" and will, therefore, include contract workers.

The regulations allow ‘positive action’; which covers providing special assistance and training or organising recruitment in such a way that compensates for disadvantages linked to religion or belief being suffered by employees or potential employees. Such action would include targeting recruitment advertising at a particular religious group who because of their belief are not able to access a normal source of recruitment information.

Action

Policies and procedures will need to be reviewed and amended if necessary to ensure that they are neutral as to religion or belief. Training may have to be given to those involved in recruitment to ensure that they are aware of the new law and can recognise and deal with discrimination issues. Harassment policies will also have to be reviewed and amended if necessary to ensure religious or belief discrimination is prohibited and that staff know both how to report such behaviour and that it will be dealt with very seriously. Benefits packages will have to be reviewed so that they comply with the new law.

These changes, together with the proposed introduction of regulations prohibiting Sexual Orientation Discrimination also in December 2003, Age Discrimination in 2006, and the modifications being made to existing legislation covering Race, Sex, Disability and Equal Pay, mean that it is becoming more important than ever before for employers to ensure that their equal opportunities and anti harassment policies are properly drafted, policed and enforced.

For further information or assistance on the Employment Equality (Religion or Belief) Regulations 2003 please contact Steen & Co Employment Solicitors