Avoid discriminating on a religious basis

Several cases have examined discrimination on the grounds of an employer’s religion or belief, as opposed to an employee’s. Claire McKee, of Dentons, looks at the challenges of these claims

by Claire McKee

Claire McKee is an associate in the People, Reward and Mobility team at Dentons.(claire.mckee@dentons.com)

What is discrimination based on religion or belief?

The Equality Act 2010 provides for nine protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, sex, sexual orientation, and religion or belief.

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“Religion or belief” under the 2010 Act is defined as:

  “Religion” means any religion, and a reference to religion includes a reference to a lack of religion.

• “Belief” means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.

Direct discrimination occurs in the employment sphere where an employer treats a particular employee less favourably than another employee (or group of employees) because of religion or belief.

Indirect discrimination occurs where an apparently neutral provision, criterion or practice (such as an employment policy or procedure) puts an employee at a disadvantage compared with other employees.

When it comes to indirect discrimination, an employer has an opportunity to defend the policy or procedure it has put in place as being intended to achieve a particular aim and that it is proportionate in doing so. There is no such defence for direct discrimination, which will always be unlawful.

What rights do employees have with regard to religion?

Employees have the right not to be discriminated against (either directly or indirectly), harassed or victimised (put to a detriment for alleging they have been discriminated against) on the grounds of religion or belief, or lack thereof.

It is unlawful not to offer a job, or a promotion, on the grounds that someone has a particular belief (or lack of belief).

It is also unlawful to dismiss someone because of their religion or belief.

What if the employer’s religion or belief is the basis of the discrimination? 

In a recent well-publicised Northern Irish case, a customer requested that a baker produce a cake with “Support Gay Marriage” written on it in icing. The owners of the bakery refused to make the cake as they objected to gay marriage for religious reasons.

The court held that this was not discriminatory, because discrimination only occurs when the discriminator would treat another person who did not have the protected characteristic differently. If the baker is the one with the protected characteristic, then arguably anyone who came into the shop and asked for a cake with “Support Gay Marriage” written on it would be refused.

So the baker could not be said to have treated the customer less favourably than they would treat others.

Another example from recent case law was a teacher at an ultra-orthodox Jewish nursery who was dismissed because of complaints from parents that she lived with her boyfriend outside of wedlock. The court found that, since she was dismissed on the basis of the managers’ religious beliefs rather than her own, that it was not discrimination on the grounds of religious belief.

These decisions are difficult to square with what we have come to understand as discrimination on the grounds of religion and belief.

What does this mean for employers?

This is a very tricky area. Discussions about religion or belief within the workplace between managers and employees will often lead to difficult conversations.

Employers are best advised to discourage these types of discussions, certainly within the realms of management decision-making.


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