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27 January 2014
So how will the introduction of religious discrimination affect employers? For many years, the UK has had legislation in force that deals with race discrimination - the Race Relations Act 1976. This legislation does provide some protection against religious discrimination, but only if a person's religion also constitutes ethnic origin, for example in the case of Jews or Sikhs. Many other groups, for example Catholics, Rastafarians and Muslims, are excluded. The new regulations will extend the protection afforded to religious and racial groups from both direct and indirect discrimination and marks a dramatic step forward in protection of individual rights.
The introduction of this new protection is a result of an EC directive that requires the UK and other EU member states to ensure that regulations are introduced by the end of 2003 to prohibit discrimination on the grounds of disability, religion and sexual orientation. In November 2002, the Government published the format for the new Employment Equality (Religious or Belief) Regulations 2003, which gives a strong indication of what the new regulations are likely to be.
The test for religious discrimination has a familiar resonance. Discrimination will have taken place when an individual has either been treated "less favourably" than another on the grounds of their religious belief, or where "a provision, criterion or practice" is not applied "equally to persons not of the same religion or belief". Although the regulations are intended to protect against religious discrimination in a number of different circumstances, they specifically focus on protection against religious discrimination in the workplace.
The regulations also protect against religious harassment. Harassment is defined as unwanted conduct that violates an individual's dignity, or which creates "an intimidating, hostile, degrading, humiliating or offensive environment". The regulations go on to protect workers against less favourable treatment based on the harasser's perception of someone's religion, irrespective of whether that perception is correct.
A main area for concern is the failure of the regulations to adequately define belief or religion. There are explanatory notes, but these fall far short of creating clarity and certainty. They set out factors that would point to whether the test of religion or belief is met. The notes refer to collective worship, clear belief system, or a profound belief affecting the way of life or view of the end of the world as indicators that the test for belief or religion may be satisfied. The Government clearly intends to limit this definition so that it does not cover political or philosophical beliefs. It does so by expressly excluding these, unless that belief is similar to a religious belief. It is easy to see how the tribunals will have difficulty in drawing this distinction. It would seem that the Government is abdicating responsibility to the courts and tribunals to determine how religion or belief will be defined and, as occurred when the Disability Discrimination Legislation came in, employment lawyers may well have difficulty in giving clear advice.
So how far will the concept of religion go? As currently drafted, the regulations may cover druidism and Rastafarians. The rights of humanists and atheists may also have to be taken into account. Many employers already respect their employees' beliefs, for example by allowing time off for religious holidays or daily prayer. The question asked might well be whether this time should be paid or should be deducted from holiday entitlement/contractual working hours etc. Under the new legislation, employees will have greater scope to insist on these rights, but how far the tribunals will go in granting them remains to be seen.
The regulations do include a defence for an employer, where the employer can establish that there is "a genuine occupational requirement" that a person should be of a particular religion in order to take up a post. For example, it could be argued that there is a genuine occupational requirement for the head teacher and the religious studies teacher of a Roman Catholic school to be practising Catholics, but not for, say, the French teacher.
The flip side of this is whether an employer can refuse employment to a person who requires time off at either critical times, or generally. For example, if a Jewish nurse refuses to work after sundown on Friday, would the employer be required to accommodate this request?
While the regulations adopt similar language to that used in the other areas of discrimination, we expect the tribunals and employment lawyers to struggle in defining whether the test of religion or belief has been satisfied.