ACAS has published new guidance to assist employers in preventing workplace discrimination on the grounds of religion or belief. Many employers are unlikely to see the relevance, believing that they don’t discriminate and religion is not something that does or should arise at work.
The fact is that the guidance covers a substantially wide range of employment situations, or discusses policies and practices that might lead to discrimination, including recruitment, dress codes, religious holidays, working on holy days; prayer during the working day, food, fasting and drinking alcohol is significant. Other employers might say that they do not currently employ any Muslims, but that misses the point that most legal religious cases have been about Christians.
The guidance contains a helpful reminder of the different forms of unlawful discrimination, highlighting the need to ensure that apparently neutral policies do not inadvertently disadvantage those with a certain belief (indirect discrimination). It also reminds employers that discrimination can happen when someone wrongly assumes an employee has a particular faith (discrimination by perception), or when an employee is associated with someone else from a particular religion; for example, through marriage or friendship (discrimination by association).
The guidance makes clear that the Equality Act 2010 also protects those who do not practice a particular religion, or who have no religion, and provides some assistance with the kinds of philosophical beliefs which will be protected. Case law is still unclear about what kind of philosophical beliefs will and will not be protected under the Act. Protected beliefs are those which are genuinely held so are more than an opinion; relate to a weighty and substantial aspect of human life and behaviour; are clear; cogent; serious; important; worthy of respect in a democratic society; compatible with human dignity; and do not conflict with the fundamental rights of others. Humanism, atheism and agnosticism are broadly accepted to qualify as protected beliefs. It is likely that vegetarianism and veganism would also qualify.
The new guidance helps raise awareness of situations where discrimination can arise, (namely recruitment, requests for annual leave, dress codes, and training and development opportunities), regardless of intention, and is helpful in alerting employers to both potential pitfalls and good practice. According to the guidance:-
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Recruitment is a key area to avoid discrimination, particularly when advertising for the role an employer is/are trying to fill. The job advert should be published widely and it is advised not to mention religion in the posting.
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Requests for annual leave during religious festivals or for religious reasons should be considered carefully and sympathetically. There should also be an understanding that employee performance may be affected during fasting.
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Employers should take a flexible approach towards dress codes where possible.
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Finally, opportunities for promotions should remain equal; it would be discriminatory if an employer discouraged an employee from taking a promotion because of their religion. There should also be an understanding around training and development in order to gain a promotion, it should be organised so that an employee with religious commitments does not miss out.
We particularly like their Top Ten Myths, which are:
Myth: I can’t be accused of discriminating against someone with the same religion as me.
Fact: If you treat someone unfairly because of their religion it would be discrimination, whether or not you were the same faith.
Myth: A philosophical belief is simply what I believe in, so my beliefs are protected.
Fact: What qualifies as a philosophical belief is not always clear cut. There are guidelines, but they are only guidelines. And, the final decision whether someone’s beliefs amount to a ‘belief’ in their individual case will rest with an Employment Tribunal or Court.
Myth: Employees are only really protected against religion discrimination when they are devout in their faith, or work in religion.
Fact: No, they are protected against unfair treatment whether they are devout or not. And, for example, because their friend holds a particular religion, or they are thought to follow that religion, even when they don’t.
Myth: Away from work, I can say what I want regarding my religion or belief on social media – it’s my profile and my page.
Fact: An employer has a right to ensure an employee’s personal views are not mistaken for its own. It should have a policy on social media including use away from work.
Myth: As long as a Manager is canny in their questioning in the interview, they can still get away with finding out a job applicant’s religion if they want to.
Fact: Even a question such as ‘Which school did you attend?’ is likely to be seen as discriminatory if fishing for the candidate’s religion and the question is irrelevant.
Myth: A request for leave for a religious festival takes precedence over a request for a family holiday.
Fact: No, religious observance does not necessarily override any other good reason for leave.
Myth: An employer’s dress code must be strictly followed, otherwise there’s no point.
Fact: A strict dress code would have to be for very good business reasons to satisfy an Employment Tribunal. Better to take into consideration that some employees may wish to dress in a certain way because of their religion or belief.
Myth: An employee can refuse to do aspects of their job because of their religion or belief.
Fact: Not if there are good business reasons why they are part of the job, such as being essential duties, and the employer’s decision is proportionate.
Myth: An employee doesn’t have to follow a rule like having a photo ID pass, if having their photo taken is against their religion or belief.
Fact: Employees should understand that their employer has a right to expect certain things to happen for good business reasons, such as having a photo ID pass for security reasons.
Myth: A colleague can’t, in any circumstances, lecture me about their religion or belief.
Fact: They can’t force their views on you when you don’t want to hear them. However, if you bait them, you are less likely to be able to claim harassment.
ACAS encourage employers to make sure their workplaces are ‘inclusive’ so that employees feel:
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they belong;
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are not disadvantaged or under-valued because they hold a certain religious faith or philosophical belief; and
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their beliefs and/or religious observances are respected;
The guidance addresses the issue that Britain is “an integrated and cohesive society with a proud tradition of religious tolerance”. Flexibility in this regard is encouraged and dress codes restricting religious symbols should not be set if there is otherwise no interference with the employee’s work.
Dress Codes
The Government Equalities Office (GEO) has published new guidance on dress codes and sex discrimination for employers, employees and job applicants.
The new guidance Dress Codes and Sex Discrimination – what you need to know, was promised by the Government following a parliamentary inquiry into dress codes, which was conducted as a result of extensive media coverage in 2015 of a receptionist sent home for refusing to wear high heels; what has come to be known as “Heel-gate”. The guidance provides advice for employers on their legal responsibilities when introducing a workplace dress code policy, and advice for employees on what action they can take if they consider their employer’s policy to infringe their rights.
The guidance confirms that dress codes can be legitimately enforced by employers, but any less favourable treatment because of sex could amount to direct sex discrimination. It reminds employers that dress policies for men and women do not have to be identical, but standards imposed should be equivalent. It also warns that requiring any gender-specific items, such as high heels, make up or have manicured nails, is likely to be unlawful.
Employers are recommended to consult with staff prior to introducing or amending a dress code, and should take into account the health and safety implications of any dress requirements. Notably, the guidance advises against gender specific prescriptive requirements, such as a requirement to wear high heels, and prohibiting religious symbols that do not interfere with an employee’s work.
Listing examples, the guidance says that requiring female employees to wear high heels but not having footwear requirements for men is likely to constitute direct discrimination. It can also amount to indirect discrimination against disabled employees, as heels can exacerbate mobility difficulties, or increased risk of falling for those who are visually impaired. However, the code has a lot of common sense advice. Requiring receptionists to dress smartly to portray positive public face and image is quite lawful because it is not gender specific. Requiring all employees to wear smart shoes will also be lawful because it is not gender specific.
The guide does not intend to be specific, as it uses such phrases as “it is best to” or “likely to be”. The law is not clear on all of these issues, so guidance for employers is very important to avoid discrimination claims in the workplace, and can assist in creating a positive working environment for everybody.
The approach of the UK Government is to be commended, albeit the ACAS Guide four years ago, which we commented on in our Client Newsletter No. 85 back in 2014, is arguably more comprehensive. It is right that to require or encourage women to dress provocatively is likely to be unlawful, and the guidance specifically comments that dress codes must not make employees vulnerable to harassment by colleagues or customers.
It is, however, arguable that the more contentious issue is how dress codes impact on religious discrimination. The guidance states that employers should be flexible, and not set dress codes that prohibit religious symbols that do not interfere with an employee’s work. In cases of indirect discrimination, it is open to an employer to potentially justify an act of discrimination if it is a proportionate means of achieving a legitimate aim; for example, staff being asked to wear a uniform to project a polished image to clients. However, if the aim is to appear smart and professional, it is difficult to see how this cannot be achieved by wearing flat shoes, a short-sleeved shirt or a headscarf.
To avoid your dress code being discriminatory:
- The dress code should apply equivalent standards, but this does not mean exactly the same for both sexes, and minor deviations to accommodate religious beliefs are quite common, e.g. letting women wear trousers.
- Make decisions based on the effect on the business, and the impact on the employee’s ability to do their job.
- Consider the impact on any people in the employee’s care (or others).
- Look out for protected groups that might be adversely impacted more than others.
- Consider if exceptions can be applied, e.g. religious jewellery, reasonable adjustments for disabled employees.
- Consult with employees/unions on your dress code requirements.
- Would the employee have to leave their job? Consider whether there is a compromise both parties can accept – e.g., it might be wearing a symbol as a brooch rather than hanging on a chain.
- Consider health, safety and hygiene issues, e.g. will particular shoes make staff more prone to slips and trips, or injuries to the feet?
- Clearly communicate your policy, and make it clear that failure to comply will be a disciplinary matter.
- Be consistent in the application of the policy and any disciplinary action.
If the matter goes as far as an Employment Tribunal, employers should understand that Tribunal/Appeal Courts will consider if there is any direct discrimination, and balance the right to display a religion or belief against the employer’s business reasons in the particular case. A ruling will depend on the facts. While some employers will have explicit dress codes, in other situations such codes may be implied. It is important that there is clarity for employees and applicants regarding an employer’s workplace policies, and that decisions relating to employment matters are objective and justifiable.
You are welcome to raise any queries or questions with our Consultants who would be pleased to advise you on any element of the issues arising from this newsletter.
