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The
Employment Equality (Religion or Belief) Regulations 2003 prohibit
discrimination and harassment on grounds of religion or belief in
employment, vocational training and the provision of goods, facilities
and services.
Who do the regulations protect?
The
regulations give protection to all workers, office holders, the police,
barristers and members of the armed forces. There is no service
requirement under the regulations, so workers are protected from the
moment they apply for a job with you.
The
regulations also apply after employment has come to an end, if the
discrimination is closely connected with the employment relationship
(for instance, if you refuse to provide a reference).
What do the regulations cover?
They
cover believers of organised religions, as well as anyone who holds any
religious or "philosophical belief" such as paganism or humanism. The
regulations also protect non-believers, but not people with political
beliefs although that may be open to debate, following a recent
amendment.
DISCRIMINATION
What is direct religious or belief discrimination?
As
an employer, you will be deemed to have directly discriminated against
an existing worker or job applicant if you treat them less favourably
than others because they follow (or even just seem to follow), or do
not follow a religion or belief.
So you cannot:
- decide not to employ someone
- dismiss them
- refuse to provide them with training
- deny them promotion
- give them adverse terms and conditions
You
can justify direct discrimination, but only if you can show that a
genuine occupational requirement applies (see below).
INDIRECT DISCRIMINATION
What is indirect religious or belief discrimination?
You
indirectly discriminate against workers if you operate a provision,
criterion or practice which, although applied to everyone in the
workplace, disadvantages people of a particular religion or belief (or
none), unless you can justify it. To do that, you have to show that you
have a legitimate aim (such as a real business need), that it is
necessary and there is no other way to achieve your aim.
The
well publicised case of Azmi v Kirklees Metropolitan Borough Council
(see Veiled Beliefs below) is a case in point . Mrs Azmi claimed
indirect discrimination when she was not allowed to wear a veil in
class but the Employment Appeal Tribunal (EAT) said the school was
justified.
HARASSMENT
What is harassment?
This
is defined as unwanted conduct that violates someone’s dignity at work
or creates an intimidating, hostile, degrading, humiliating or
offensive environment. It does not have to be intentional.
The
regulations state that conduct will amount to unlawful harassment where
all the circumstances are taken into account, including the perception
of the person being harassed, if it is reasonable to conclude that it
could have had that effect. Although the test is essentially an
objective one, tribunals must also take account of the views of the
victim.
VICTIMISATION
What is victimisation?
You
are not allowed to victimise staff by treating them less favourably
because they made (or intend to make) a complaint, or because they have
given (or intend to give) evidence under the regulations.
THE EXCEPTIONS
What are the exceptions?
There are three main exceptions:
- The general genuine occupational requirement (GOR)
- The religious organisations’ GOR
- Positive action
What is the general GOR?
You
are allowed to discriminate on the grounds of religion or belief when
recruiting staff and when promoting, transferring, training or
dismissing them, as long as you satisfy a three-stage test:
- that subscribing to a particular religion or belief is a genuine and decisive requirement for the job
- that it is proportionate to apply that requirement in this particular case
- that
the person either does not meet the requirement for the job, or you are
not satisfied that they do and it is reasonable in all the
circumstances for you to reach that conclusion
You
do not, however, have to show that your business is based on a
particular religion or belief, just that being of a particular religion
or belief is a genuine requirement for the job.
What is the religious organisations’ GOR?
Some
organisations - like faith schools - are founded on an ethos based on a
religion or belief. If you can show that is the case (and the onus is
on you), the test is very similar to the general GOR, except that
subscribing to a particular religion or belief has to be a genuine (but
not decisive) requirement for the job.
The
recent EAT case of Glasgow City Council v McNab (see Religious Fervour
below) is a useful indicator of what courts will, and will not accept,
as a GOR.
Can you take positive action?
The
law allows you to give special encouragement to, or provide specific
training for, people from religions or with beliefs who are in a
minority in the workplace.
That
means you can offer training to existing employees for work which has
historically been done by individuals from a different religion or
belief. You can also place advertisements which encourage applications
from a minority religion (while making clear that selection will be on
merit).
Do the regulations affect your dress code?
There
are no rules in the regulations about dress codes, but if you have one
which impacts on a particular religious group, that might amount to
indirect discrimination requiring justification.
Take
the case of Mohmed v West Coast Trains. Mr Mohmed argued he had been
treated less favourably when asked to trim his beard which he kept at a
certain length for religious reasons. The company was able to show that
he had been given a copy of the uniforms policy when he started work,
stating that beards should be kept neat and tidy. The EAT decided that
the company had not discriminated against him and just wanted him to
conform with the policy.
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In Glasgow City Council v McNab,
the Employment Appeal Tribunal (EAT) said that the Council could not
rely on the genuine occupational requirement (GOR) exception in the
religion or belief regulations to discriminate against an atheist
teacher.
Mr McNab, a mathematics and computer teacher at St Paul’s (a Roman Catholic High School maintained by the Council) applied for the post of acting head of pastoral care.
The
Church did not offer him an interview, relying on a 1991 agreement with
the Council that only Catholic teachers would be appointed to certain
senior positions in the school. The Council said this was one of the
"reserved" posts set out in that agreement.
Mr
McNab claimed discrimination under the religion or belief regulations.
The council argued that being a Roman Catholic was a GOR for the post.
The
tribunal decided that the Council had not established a GOR. It said
that the job did not require postholders to be Roman Catholics since
they could be held by non-Catholics in non-denominational schools, and
much of the teaching had no relevance to the doctrines of the Church.
On
the odd occasion that they were relevant, the tribunal said that a non
Catholic pastoral care teacher could easily arrange for those
particular lessons to be given by a teacher approved by the Church.
The
Council could not, therefore, argue that subscribing to the faith of
Roman Catholicism was a GOR for the post, nor was it proportionate to
apply that requirement to pastoral care teachers.
The
EAT agreed with the tribunal, saying that "just because the 1991
agreement specified that a teacher had to be a Roman Catholic for
certain posts, that did not mean that that requirement had to be
regarded as a genuine occupational requirement" for the purposes of the
general GOR.
It
also agreed with the tribunal that the education authority could not
show that they were an employer which had "an ethos based on religion
or belief". The fact that it operated a statutory system which allowed
various religious denominations to advance their ethos through schools
that it maintained "did not mean that they espouse the same ethos at
all."
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In Azmi v Kirklees Metropolitan Borough Council
the EAT said that, although Mrs Azmi had been subject to indirect
discrimination under the religion or belief regulations when asked to
remove her veil in the classroom, the school had been justified in
doing so.
Mrs Azmi started work as a bi-lingual support worker at a junior school in Leeds
in September 2005. She attended her interview and an initial training
day wearing a tunic and headscarf, but with her face uncovered.
During
the first week of term, she asked if she could wear the veil when
working with male teachers. The headteacher asked the education
authority for advice. In the meantime, he and another teacher did some
classroom observations, and decided that the children needed to see her
facial expressions in order to develop their language skills. She was
therefore asked to remove it when working directly with children.
Following
the guidance from the education authority, the headteacher asked her to
be unveiled at school from 16 November. She said she could not follow
that instruction and went off sick. On her return in February, she
indicated that she wished to remain veiled and was suspended. She
claimed discrimination on the basis of her religion, and victimisation.
The
tribunal decided that Mrs Azmi was not treated less favourably than a
non-Muslim who covered their face. Given the importance of non-verbal
communication, it said that anyone whose face and mouth were obscured
would have been suspended. The EAT agreed, saying that the comparator
had to be someone with a face covering, not a Muslim woman who covered
her head (as Mrs Azmi had argued).
The
tribunal then considered whether Kirklees MBC had applied a "provision,
criterion or practice" (PCP) which, although applied to everyone in the
workplace, disadvantaged Mrs Azmi. It accepted that the "apparently
neutral" PCP (that Mrs Azmi should not cover her face or mouth) put her
at a disadvantage in comparison to others.
However,
because she was only asked to remove her veil when teaching children
(and this was because of the impact on her communication levels), the
tribunal said the school had adopted a "proportionate means" to achieve
its aim of raising the children’s educational achievements. And again
the EAT agreed.
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Smoking at work
Acas has published a guide on drawing up a policy on smoking at work before the ban in England comes into effect on 1 July 2007. A similar ban became effective on 2 April in Wales, 30 April in Northern Ireland, and Scotland has been non-smoking since 2006.
To download the guide, go to:
www.acas.org.uk/index.aspx?articleid=696
Redundancy payments
Acas
has also put together a booklet on drawing up redundancy agreements. It
emphasises the importance of planning labour requirements to avoid or
to minimise the need for redundancies; the benefits of establishing an
agreed procedure for handling redundancies; and the need for fairness
and objectivity when selecting members of the workforce for redundancy
To download a copy of the guide, go to:
www.acas.org.uk/index.aspx?articleid=773&submit=Previous
Conflict at work
Acas has also produced a guide to Managing Conflict at Work. It looks at six questions:
What are the signs of conflict?
Who is in conflict?
What is causing conflict?
How do you manage conflict?
Do you need help?
How can you prevent future conflict?
To download the guide, go to:
www.acas.org.uk/media/pdf/5/0/B19_1.pdf
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