In December 2003, legislation was introduced to prohibit direct discrimination, indirect discrimination, victimisation and harassment in the workplace on the grounds of religion or belief. The specific wording of the Employment Equality (Religion or Belief) Regulations 2003 was that employees were protected from discrimination by reason of any ‘religion, religious belief or similar philosophical belief’. However, the Regulations did not define these terms, so exactly what was meant – particularly by the words ‘similar philosophical belief’ – was open to doubt.
In a case brought under the Regulations in 2005 (Baggs v Fudge), Mr Baggs claimed that he had suffered direct discrimination because he was not considered for the job of practice manager at a medical practice because he was an active member of the British National Party (BNP). He argued that fascism was a ‘similar philosophical belief’. However, the Employment Tribunal (ET) dismissed his claim as it did not consider that membership of the BNP qualified as a belief for the purposes of the Regulations. Although the BNP restricts its membership on ethnic grounds, members are not required to hold particular religious or philosophical beliefs.
Following debates in Parliament during the progress of the Equality Act 2006, section 77 of the Act makes changes to the wording of the Employment Equality (Religion or Belief) Regulations. These came into effect on 30 April 2007. The word ‘similar’ has been removed so that the Regulations now cover ‘any religion, religious or philosophical belief’.
In addition, the revised Regulations make it clear that a lack of religion or belief is also covered and changes have been made to protect employees from discrimination that arises because of the religion or belief of someone with whom they associate, such as a spouse or partner.
Quite where this leaves us remains to be seen. However, removing the need for claimants to prove that a philosophical belief they hold is similar in nature to a religious belief would seem to extend protection under the Regulations to those who hold a wide range of beliefs. What evidence a claimant will have to provide of his or her adherence to a particular philosophical belief and whether the belief is ‘philosophical’ is clearly going to produce a great deal of argument and the courts will have to decide on the facts of individual cases as they arise.
Here are some further examples of cases brought under the legislation.
In the first case, Mohsin Mohmed, a former customer service assistant for Virgin Trains, claimed that he was sacked for refusing to shave off his beard. He had said that he could not wear his beard any shorter than about four inches on account of his Islamic faith but, in spite of this, his manager told him to shave his beard or lose his job. Mr Mohmed said that he was also told that he would not be able to wear a religious skull cap. Virgin Trains claimed that Mr Mohmed was sacked at the end of his probationary period on account of his poor performance.
Mr Mohmed lost his case at the ET, which noted that a Sikh man, whose religion forbade him from cutting his beard, had managed to keep his beard tidy in order to comply with the company’s uniform standards. The Employment Appeal Tribunal dismissed Mr Mohmed’s appeal, judging that the issue of his beard was one of tidiness only and had nothing to do with his religion. It was therefore unnecessary to require an explanation from the employer for the dismissal: no prima facie case of unlawful discrimination had been made out.
In the second case, a member of the Transport and General Workers’ Union was awarded £10,000 in compensation after he was sacked on his return to work, after taking extended leave to make a religious pilgrimage to Mecca.
Mohammed Sajwal Khan, who was a bus cleaner at NIC Hygiene in Bradford, was sacked for gross misconduct after his employer alleged that he had, without authorisation, used his holiday entitlement and a further week’s unpaid leave in order to make the once-in-a-lifetime pilgrimage required by his faith. Mr Khan claimed that he had sought permission from his employer but, when he did not receive a reply, his manager said that if he did not hear anything further, he should assume leave had been granted.
Mr Khan won his case, thought to be the first employee victory under the regulations.
The third case concerned a woman who was a practising Christian. Ms Williams-Drabble was employed as a residential social worker by Pathway Care Solutions Ltd. When she applied for the job she gave details of her faith and at her interview she expressly told her prospective employer that she would not be able to work on Sundays because she attended church. She was willing, however, to cover a Saturday night shift at the residential home as this ended at 10 a.m. on Sunday and enabled her to go to church.
A few months later, however, Pathway Care Solutions changed the shift rota so that Ms Williams-Drabble was required to work on a Sunday at times which prevented her from attending church. When she explained to her employer that she would not be able to work those shifts, as she had made clear at her interview, she was told that if the rota change was unacceptable to her she would have to resign. This she did and subsequently won a claim at the ET for indirect discrimination under the Regulations because her employer had applied a ‘provision, criterion or practice’ that put practising Christians at a particular disadvantage and could not justify the change. In addition, she also won a claim that her resignation amounted to constructive dismissal as the discrimination was a fundamental breach of her employer’s implied contractual obligation of trust and confidence.
It is important for employers to be aware of the requirements of an employee’s religion in order to ensure that employment policies and practices, even though they apply to all employees, do not put an individual member of staff at a particular disadvantage. In particular, failing to allow employees time off to observe religious holidays and festivals can result in indirect discrimination.