Stuart Markless answers your questions on the law relating to religious discrimination.
Q. I have a job application from someone wanting time off to observe religious festivals. Do I have to accommodate this? We normally shut down for two weeks in the summer and require two weeks’ notice for other holiday.
SM: Since 2003 the law has prohibited discrimination on the grounds of religion and belief. If you reject this application purely on the grounds of the applicant’s religion you would be directly discriminating against them. Direct discrimination is where someone is treated less favourably because they follow, or do not follow, a particular (or any) religion or belief.
You could also be found guilty of indirect discrimination if it can be proved that your policies, employment rules or other practices have the effect of disadvantaging people of a particular religion or belief – even where they are applied to all employees. Indirect discrimination is unlawful whether it is intentional or not.
In this case you should be aware that the dates of some religious festivals change and in some cases the dates do not become clear until they are quite close. It would seem that your holiday rules disadvantage people wishing to observe these festivals. However, your rules could be permissible if you can demonstrate a legitimate aim and the practice is proportionate to that aim. For instance, if the business needs to retain a certain level of staffing at all times. In any case, it would be wise to review your practices for other ways to meet your objectives without disadvantageous rules.
Q: I have read about religious discrimination cases involving the behaviour of employees. What should I watch out for and am I liable?
SM: Of the two other types of discrimination to be aware of the first is harassment. This includes not only overt aggressive or offensive behaviour, but also acts which may not be intended to be malicious but are nevertheless upsetting. In one recent case a claimant used as evidence a ‘joke’ birthday card that had offended him.
Victimisation is where an individual is treated detrimentally because they have made a complaint or intend to make a complaint about discrimination or harassment or have given evidence or intend to give evidence relating to a complaint about discrimination or harassment.
Organisations may be held responsible for the actions of their staff as well as the staff being individually responsible. The penalties are the same as in any other form of discrimination so it is vital to ensure your equal opportunities and harassment policies are up-to-date.
Q: Is it just some religions that are protected?
SM: No, the definition is wide and covers ‘any religion, religious belief, or philosophical belief’. This could encompass:
- Political beliefs
- Minor religions
- Discrimination owing to a lack of religion or belief
- Discrimination targeted at an individual due to their relationship with another person, such as a spouse or friend
- Behaviour relating to someone’s perceived religion or belief.
See also: our Religion or Belief Discrimination page.
This article was published in The Argus in October 2008
The information in this article is provided as general guidance only. The law in this area is regularly subject to change, challenge and update. You should always check the up-to-date position and if appropriate seek further specialist advice.
