Following the judgment in the cases of Eweida and Chaplin v. the United Kingdom and Ladele and McFarlane v. the United Kingdom by the European Court of Human Rights (the Court) in January 2013, the Equality and Human Rights Commission has published guidance to assist employers. I have summarised the guidance below. If you wish to read the guidance Click here.
Although the cases were brought by members of the Christian faith, the decision by the Court applies to all religions and beliefs. What came out the judgment, and what employers are going to have to consider is as follows:
Whether a religion of belief is genuine
To be afforded protection, according to the guidance, a religion or belief “should be more than an opinion or a viewpoint, and it should be serious, genuinely and sincerely held, and worthy of respect in a democratic society.” The major religions and belief systems are all covered by this definition, as is paganism, druidism, atheism, and humanism. In addition, it has been decided by case law that a belief in climate change is a protect belief.
In most cases it should be relatively easy to determine whether the religion or belief is genuine. In those cases where the employer doubts the sincerity of the religion or belief claimed by the employee, I recommend taking legal advice.
Requests by employees
Employees are likely to make requests falling into three broad categories: manifestation of belief including the wearing of clothing and jewellery or an employees appearance; time off work for reasons relating to religion or belief which may include avoiding working or leaving early; and adapting work duties which may include, for example, avoiding working with alcohol. Employers will not always be obliged to grant requests, but should always consider them seriously and where they have concerns, should seek legal advice.
Dealing with requests
It is crucial that employer’s workplace policies are up to scratch including their commitment to equality and diversity usually contained within a Equality and Diversity Policy.
On a practical level, all requests by employees should be taken seriously and confidentially and where appropriate, employers should hold a meeting with the employee to discuss what they require. Best practice is that employers first look at how they can accommodate the request and only if it is unfeasible to do so, look at the alternatives. Employers are entitled to take into account the impact on the employee, other employees, and the business generally when considering a request. The guidance contains a non exhaustive list of factors that employers should consider such as the financial impact on the business, whether there are any health and safety implications, and the impact on other employees and customers.
One contentious aspect of employees’ rights is how far they are entitled to promote their religious views or beliefs within the workplace. It is difficult to balance the rights of an employee to discuss their beliefs against those of other employees not to be subjected to that discussion. The guidance states that employers can intervene where actions which could amount to harassment by one employee of another have or are taking place. Harassment is defined as “unwanted conduct that is reasonably viewed as violating dignity, intimidating, hostile, degrading, humiliating or offensive to other people”. This would clearly be inappropriate in a workplace, but employers may feel that discussions and behaviour falling of harassment should also be considered and, once again, the Diversity and Equal Opportunities Policy should attempt to set out the parameters of employees’ rights in this regard.
Another potentially contentious aspect of this area of law is where employees notify their employer that they do not wish to carry out certain tasks which fall within their job specification, for example a doctor refusing to perform abortions. Employers should consider each request carefully and apply similar criteria to that set out above.
The guidance contains useful examples of situations involving employees either promoting their religious views or beliefs or making requests to accommodate their religious views or beliefs. Although employers should be consistent where possible in responding to requests, they should respond to each situation based on the unique facts of that employee and their request.
This is difficult area of the law and employers are welcome to contact Harry Dronfield in our Employment Law Team on 020 7228 0017 or by emailing us at firstname.lastname@example.org should they have any queries.