The Equality Act 2017 (the “Act”) protects employees, prospective employees, workers and anyone contracted to perform work personally from discrimination, harassment and victimisation because of a protected characteristic.
“Religion or belief” is one of the nine specified protected characteristics covered by the Act. At its simplest, it is unlawful to treat an individual unfairly or subject them to a detriment because of their religion or their religious or philosophical beliefs.
As with any of the protected characteristics, the Act does not require any minimum length of continuous employment for a discrimination claim to be made.
What constitutes a religion?
Religion means “any religion” and any denomination or sect within a religion. The Act does not give a comprehensive list of religions, but in order to fall within the scope of the Act the religion must have a clear structure and belief system.
Examples of religion may include (but are not limited to) Buddhism, Christianity, Hinduism, Islam, Judaism and Sikhism. A denomination or sect within a religion includes, by way of example, methodists within Christianity or Sunnis within Islam.
The Act also offers protection for those who do not follow a particular religion or are atheist (i.e. a person who lacks belief in any god or gods).
What amounts to a religious or philosophical belief?
The Act defines belief as “any religious or philosophical belief”. In the same way that the Act offers protection for a lack of religion, there is protection where someone does not have a particular belief (religious or philosophical). Guidance suggests that a belief need not include faith or worship of a god or gods, but it must affect how a person lives their life or perceives the world.
A decision of the UK Employment Appeal Tribunal (EAT) in 2009 (Grainger plc v Nicholson) established criteria that are relevant when deciding whether a “belief” qualifies for protection (also known as the “Grainger criteria”). The EAT determined that a belief must:
- be genuinely held;
- not be just an opinion or viewpoint based on current information;
- relate to a weighty and substantial aspect of human life and behaviour;
- be clear, logical, convincing, serious and important; and
- be worthy of respect in a democratic society, compatible with human dignity, and not conflict with the fundamental rights of others.
Although the Grainger case itself concerned a philosophical belief (relating to climate change) rather than a religious belief, the guidance also has relevance to religious beliefs.
The Act does not prescribe a list of philosophical beliefs and so we can look to decided cases of employment tribunals as to what may amount to a philosophical belief. A recent controversial decision found that vegetarianism was not a philosophical belief because it was a “lifestyle choice” whereas ethical veganism was found to be a philosophical belief, which suggests there is a fine line between the types of belief that are capable of being protected.
Please also see our recent article – Equality Series: Case summary of Mincher v Manx Care – which is the first definitive decision of the Isle of Man Employment and Equality Tribunal on the interpretation and application of the protected characteristic of religion or belief.
Can protected characteristics conflict with each other?
All protected beliefs are equal – whether religious or philosophical – so one protected belief cannot override another. Interestingly, religion or belief is one of the most common protected characteristics where an employer may find there is a conflict or “clash” between employees with different viewpoints. For example, there is potential for conflict between “gender critical” beliefs (which essentially criticise the view that gender identity can differ from sex assigned at birth) and the rights of transgender and non-binary people not to be discriminated against.
Discrimination in relation to religion or belief
- Direct discrimination – occurs in three forms: (i) ordinary direct discrimination where an employee is treated less favourably “because of” their own religion or belief, or lack of religion or belief; (ii) direct discrimination by association where the less favourable treatment occurs because of the religion or belief, or lack of religion of belief, of someone with whom the complainant is associated (e.g. colleague, friend or family member); or (iii) direct discrimination by perception where the less favourable treatment occurs because a person is thought to have a particular religion or belief regardless of whether the perception is correct or not.
In limited circumstances, direct discrimination may be lawful where there is an occupational requirement i.e., the role requires someone of a particular religion or belief, such as the headteacher of a Catholic school.
- Indirect discrimination – occurs where a practice, policy or a rule is applied equally to all employees but puts a specific employee or group of employees at a disadvantage because of their religion or belief and the employer is unable to justify it. For example, an employer having a uniform policy which does not allow for any flexibility relating to religious dress.
Indirect discrimination may be “objectively justified” if the employer can show that the practice, policy or rule is necessary for the way the business operates and it is proportionate.
- Harassment – occurs where an employer or employee engages in “unwanted conduct” which relates to the protected characteristic, i.e. religion or belief, which has the purpose or effect of violating another person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. Harassment can occur whether it is intentional or not. It is also possible for an employee to assert a complaint of harassment even when they are not on the receiving end of the conduct, but witness it and it has a negative impact on their dignity at work or working environment.
- Victimisation – occurs when someone suffers a detriment as a result of having complained about discrimination or because they have helped someone else with a discrimination claim. For example, an employee is not considered for a promotion because she has recently acted as a witness at an employment tribunal relating to alleged religious discrimination.
When is discrimination most likely to occur in relation to religion or belief?
Areas of employment in which religion or belief discrimination may most frequently occur are:
- recruitment;
- dress code; and
- request for annual leave/time out of the office for religious reasons.
Implementing and reviewing internal policies, together with training for all staff to promote diversity and develop their understanding of each other, can help prevent discrimination occurring in the workplace. However, if, despite training and raising awareness, issues do arise, it is essential to address them early and clearly to ensure expectations around reasonable behaviour are set and respect for differences is observed.
The next article in our series will consider the protected characteristic of race.
If you have any questions about religion or belief discrimination (or any other equality topic), please do not hesitate to get in touch with our Employment Team.
How can we help?
Cains is able to provide clear, considered and tailored legal advice and administrative support necessary for ensuring that all of your needs are managed and executed in an efficient and timely manner.
The guidance in this note is for information purposes only and is not intended to be exhaustive. It is not intended to constitute legal or other professional advice, and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances. Cains only advises on the laws of the Isle of Man and accepts no responsibility for any errors, omissions or misleading statements or for any loss which may arise from reliance on the information in this note.
