Legal advice: Belief management

New regulations to protect workers against discrimination based on religious grounds

by Philip Henson of thePublican.com's legal team of experts from London solicitor Joelson Wilson.​

I have written previously on the rapidly expanding area of discrimination law. This article explains the new regulations, designed to tackle discrimination in the workplace under the Employment Equality (Religion or Belief) Regulations which come into force on December 2, 2003.

The aim of this far-reaching new law is to protect "workers" by outlawing discrimination based upon their religion or similar beliefs. The regulations apply to all employers and businesses (regardless of their size). The regulation prohibits direct discrimination, indirect discrimination, harassment and victimisation.

Direct discrimination means treating other people less favourably than others, on the grounds of their religion or belief. An example of direct discrimination would be denying a bartender promotion on the basis that they are a Muslim.

Indirect discrimination means applying a provision or practice which disadvantages people of a specific religion or belief, and cannot be justified to meet a business requirement. An example of indirect discrimination would be to have a specific dress code which prohibits a Sikh man from wearing a turban.

Harassment is unwanted conduct that violates dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. This will extend to name calling and the use of offensive nicknames. It can be assumed that the courts will view racial harassment at work in the same way that they view sexual harassment at work.

Victimisation means treating people less favourably because of something that they have done under or in connection with the regulations, for example making a formal complaint to an employment tribunal or giving evidence against a work colleague.

Companies may have to pay compensation if harassment takes place in the work place, unless they can show that they took "reasonable steps" to prevent it. The regulations not only cover an employee's religious beliefs but also extends to their "perceived" beliefs if, for example, they are being discriminated against on the basis that someone mistakenly believes them to be of that religion.

The new law also extends to prevent an employee being discriminated against on the basis of the religion or beliefs of the people with whom they associate. So, for example, if an employee was harassed at work because he or she had a large selection of Hindu friends then this could give rise to a claim for discrimination.

The word "belief" is not defined in the new law. However guidance issued by the Department for Trade and Industry states that the definition does not protect against discrimination on grounds of belief "not akin to a religion or similar philosophical belief".

In very limited circumstances employers may be exempt from the regulations if there is a "genuine occupational qualification". This is viewed in relation to the context in which the job is carried out and the nature of the work. This exemption is very narrow in scope and is generally reserved for positions within the church.

There is a three-month time limit within which an employee has to make a complaint to an employment tribunal, although it is foreseeable that this will be interpreted liberally if there is an ongoing period of discrimination.

The Advisory, Conciliatory and Arbitration Service (ACAS) recommends that employers should adopt good working practices to eradicate discrimination within the workplace.

Thought has to be given to the new laws at every stage from advertising a position and the recruitment process through to supplying references for staff who have left.

The Advisory, Conciliatory and Arbitration Service (ACAS) has published draft guidance for employers on employment equality which can be read at www.acas.gov.uk. The guide also provides a list of the beliefs of the main religions and all religious holidays.

Another very helpful website is www.dti.gov.uk.

A brief guide to good practice​

• Do not ask intrusive personal questions at interviews
• Invite applicants to make their special needs known
• Promotions should be fair and equal with no reference to religion or similar beliefs
• Develop an effective complaints procedure
• Consider dietary requirements of staff when preparing food
• Have a trained designated person to deal with equality matters
• Consult staff regularly
• Communicate to staff that it is unlawful and unacceptable to discriminate on the grounds of religion or other belief.