- Paul is an employee of a large company which produces stationery. He works on the production line, which involves standing at printing presses for most of the working day. He has been off work for 6 months with chronic back pain, which makes it painful to stand for long periods of time. He has just received a letter informing him that he is being dismissed due to his incapacity.
Rita works at the same company, but at the reception desk. She is a devout Catholic and wears a large golden crucifix on a chain around her neck. Her line manager has asked her to stop wearing it to work because he is concerned that it may cause offence to customers with different religious beliefs. Rita does not want to have to remove the crucifix as she believes it is her religious duty to manifest her beliefs.
Advise Paul and Rita whether anti-discrimination legislation can be of any assistance to them. In answering this question, you should not discuss any separate claims that Paul might have under wrongful or unfair dismissal.
In order to answer this question one must assess and consider the law relating to employment issues. This will require an in-depth analysis of direct discrimination in the form of disability and religious issues. Accordingly both Paul and Rita will require advice for these issues. According to the scenario, Paul is an employee of a large stationary company. His job entails working on a production line, which involves standing up for considerable periods of time. He has been off work for a period of 6 months with chronic back pain which makes the performance of his job very difficult. Consequently, Paul has received a letter which states that he is being dismissed due to this incapacity. It is clear from the scenario that Paul will require advice over a possible claim for disability discrimination. This area of law is governed by two sets of statutory provisions. These are the Disability Discrimination Act of 1995 and 2005. The 1995 Act makes it unlawful for a person to discriminate against people who are disabled. This includes positions in employment, interviews, buying or renting properties, and in education. The 1995 Act defines a disabled person as someone who has ‘a physical or mental impairment which has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities’. This is stated to be a wide definition and therefore the words need to be defined further. Thus, ‘physical impairment’ is defined to include a weakness or an adverse change to a part of a body. This can be meant to include things such as blindness, deafness, or lose usage of a limb. The term ‘substantial’ is cited as being a disability that is more than minor but less than severe. Equally, the term ‘long-term adverse effect’ is included in the Act to mean that it is a disability that has lasted or is likely to last more than one year. Further, the term ‘normal day-to-day activity’ means an individual’s mobility; manual dexterity; physical co-ordination; continence; ability to lift, carry, or otherwise move everyday objects; speech, hearing or eyesight; memory or ability to concentrate, learn or understand; or perceive risk of physical harm. It is clear from this definition that Paul will need to show that he has a physical impairment that has a substantial effect, which has to be adverse on the individual’s ability to carry out normal day-to-day activities. It is clear from the scenario that Paul does have a physical impairment that has resulted from an adverse change to his body. Equally, the fact that Paul is suffering from chronic back problems could and probably would be seen as being a substantial injury. Further, it is unclear from the scenario what the exact diagnosis in terms of the length of time that the injury will take to recover. However, it is clear from the scenario that Paul has been off work for a period of 6 months. Equally, the term ‘normal day-to-day activities’ is not meant to include work, as it is not a day-to-day activity. However, the injury itself does effect Paul’s ability to stand for periods of time. It is worth noting though that the Disability Discrimination Act of 2005 states that disability has the same meaning under the previous law. Equally, it is worth noting that in proving discrimination Paul would need to show that the employer ‘treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and he cannot show that the treatment in question is justified. The Act also provides that ‘a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person’. If Paul can show this then his employer’s are guilty of unlawful discrimination then he is entitled to bring an action in the Employment Tribunal. However, it is up to the employer to show that their actions are justifiable.
In terms of Rita, the scenario provides that she works for the same company, but at the reception desk. She is a devout Catholic and wears a large golden crucifix on a chain around her neck. Her line manager has asked her to stop wearing it to work because he is concerned that it may cause offence to customers with different religious beliefs. Rita does not want to have to remove the crucifix as she believes it is her religious duty to manifest her beliefs. It is clear from this scenario that Rita will require advice over a possible claim for discrimination on the grounds of religious beliefs. According to the Employment Equality (Religion or Belief) Regulations of 2003, it is illegal to discriminate against people in employment or vocational training on the basis of their religion or beliefs. The Equality Act 2006 widened the scope to include the provision of goods, facilities and services, education, the use and disposal of premises, and the exercise of public functions. This is also based upon the requirements of Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. This Article provides that everyone within the jurisdiction of the High Contracting Party, has the right to freemdom of thought, conscience and religion. These rights are subject to restrictions, which are ‘in accordance with the law’ and ‘necessary for a democratic society’. It is clear from the regulations that any employer who demonstrates less favourable treatment towards an individual on the basis of their religious beliefs or the perception of those beliefs is guilty of unlawful direct discrimination. The regulations also provide that an employee is guilty of indirect discrimination if they apply a‘provision, criterion or practice’ which disadvantages people or a particular religion or belief without a good reason. Thus, the stance of Rita’s employer to request her to remove the large golden crucifix on a chain around her neck, due to his fears that it will offend people of other religious beliefs is direct discrimination as the stance is placing Rita in a less favourably position than the customers. It is arguable further that no one individual has the right to dictate to another over what they believe. Thus, why do Rita’s employers think that it is correct and appropriate to say to her that she is not entitled to wear a religious symbol? It is both arbitrary and in clear breach of the regulations. However, Rita’s employers have an overriding duty of care to provide a safe and practicable working environment. This is in accordance with health and safety. As such, if Rita’s employers can show a genuine belief that the wearing of a crucifix goes against the overriding duty to provide a safe and secure working environment then she maybe compelled to remove it. However, according to the scenario, Rita works behind the reception desk. As such it is arguable that no such duty would exist. Therefore, it would appear that Rita’s employers have acted in a discriminatory way towards her due to the less favourable treatment. It is worth noting though that the Directgov website provides certain advise over discrimination on the grounds of religious beliefs. Accordingly, ‘There are exemptions from the regulations for ‘genuine occupational requirements’ (GOR) in very limited circumstances where it is necessary to be from a particular religion to do a certain job. Unlike other anti-discrimination legislation, there is also an exemption for “employers with an ethos based on a religion or belief “, which means that they can specify a religion as a job requirement even if it isn’t a ‘determining’ (decisive) occupational requirement.
For example, an employer who requires a Jewish chaplain will be able to appoint a Jewish person to that role, as that would be a genuine occupational requirement.
Fighting religious discrimination is primarily a negotiating issue. UNISON believes it is more effective to prevent discrimination by negotiating collective agreements for all staff rather than taking individual grievances. Unlike race, disability and sex discrimination there is currently no official body to promote or enforce the law banning discrimination on the grounds of religion or belief. Therefore union support is vital.
There are two main situations where the law applies. Firstly where someone with a certain religion or belief is employed and faces discrimination, and secondly where an organisation with a certain religious orientation is employing workers.
Advice on opposing religious discrimination is also good equal opportunities practice. Your employer should ensure that all their polices have been checked to remove any discriminatory practices, and religious discrimination should be included in harassment, equality or similar policies. All staff need to understand the reasons for and implications of any changes, and there should be support for anyone who feels discriminated against.
Employers should consider if their procedures or facilities indirectly discriminate against workers of a certain religion or belief. Workers of different religions should be consulted to discuss any requirements and how these can be accommodated. Most specific requirements should be easily accommodated. For example, allowing Muslims to take an extended lunch break of an extra hour on Fridays to attend the nearest mosque for the Jumu‘a prayer may be quite straightforward, as long as the time is made up. So could ensuring they can take the two Eid festivals off as part of annual leave.
Raising awareness of the issue is often needed and giving staff diversity training and consulting them is important. Small things can sometimes help a lot. When Bradford Hospitals NHS Trust analyses their ‘missed appointments’ statistics they found that many patients were missing appointments on religious holidays, and so distributed a multifaith calendar to staff enabling them to plan patients’ treatment better (see ‘Further resources’ at the end of this factsheet).
Jobs should be advertised to a wide audience including minority media. Only essential job requirements should be used as selection criteria, as a needless condition of socialising with alcohol or working unnecessarily inflexible hours which prevent praying etc) may be discriminatory. It should be clear what the job involves so people are aware of any potential conflicts with their beliefs.
Some religions have special dietary requirements such as vegetarianism, not eating certain meats or storing food separately. A canteen should serve vegetarian food or there should be a fridge where food can be stored.
Most religions have special ceremonies or festivals, which can normally be accommodated using annual leave. Some religions place a great importance on attending certain events, for example Muslims are expected to go on the Hajj once in their lifetime. People of a certain religion shouldn’t have better terms Religious Discrimination – April 2006 Bargaining Support Group e-mail: firstname.lastname@example.org 4 and conditions than anyone else, but a provision for unpaid leave could be included.
Some religions require their followers to pray at specific times, and even if a prayer room is not available there may be a quiet room that can be used for that purpose at certain times.
Some religions have certain dress requirements such as items of jewellery, or skull caps for Jewish men for example. As long as these do not contravene health and safety requirements your employer should try to accommodate them. If there is a dress code then some flexibility should be built into it, unless the employer can show there is a genuine occupational requirement for not doing so.
Equality monitoring is good practice and monitoring of religious beliefs can tell an organisation about it’s staff and their potential needs. However it is important that this is done in a sensitive and collaborative way. The UNISON branch should be involved and should ensure that their membership understands why the monitoring is taking place. The monitoring should be confidential, and the branch should get reports from the employer.
This is not just a matter of UNISON protecting its members. Campaigning for equality can help recruit more members and turn members into activists. Religion plays an important part in the lives of many people, and making links with religious organisations can give union campaigns strength from outside the workplace. Branches should promote the new rights in workplaces, and consider creating a union working party to come up with specific proposals.
In a recent pay dispute with NHS contractors in East London, the UNISON branch worked closely with local community and religious organisations to get broad support for a low pay campaign. It increased membership from 60 to 280 out of 360 staff at Whipps Cross hospital during the successful dispute.
IF DISCRIMINATION OCCURS
Although the best way of tackling discrimination is to prevent it by having collective agreements with an employer, sometimes an individual remedy must be sought. Discrimination may be unintentional or through thoughtlessness, so it is best addressed at an informal level initially, or via a line manager. The next stage is the grievance procedure of the organisation where there should be trade union representation.
A complaint can ultimately be taken to an Employment Tribunal under the Employment Equality (Religion or Belief) Regulations 2003. This must be done within 3 months of the discriminatory act’.
In conclusion, Paul will need to show that his employers have acted towards him in a less favourable way than other employees on the grounds of his disability. If he can show this direct discrimination then it is up to the employers to show that they were justified in doing this. If they cannot do this then they are guilty of unlawful discrimination. In terms of Rita, the fact that her employer has requested her to remove a large golden crucifix on a chain around her neck is a direct example of discrimination. Thus, Rita would have grounds to apply to the Employment Tribunal for unlawful discrimination. This, however can be justified by the employers if they can show that it is necessary for her to remove the religious symbol on the grounds of health and safety.
Textbook on Labour Law, 7th Edition by Simon Honeyball & John Bowers, published by Oxford University Press in 2002.
Employment Law, 5th Edition by Gwyneth Pitt, published by Thomson Sweet & Maxwell in 2004.
Bowers on Employment Law, 6th Edition by John Bowers, published by Oxford University Press in 2002.
Selwyn’s Law of Employment, 11th Edition by N. M Selwyn, published by Butterworths in 2000.
 As amended by the Special Educational Needs and Disability Act of 2001.
 Woodrup v Southwark LBC  IRLR 111.
 Section 3A(1).
 Section 3A(2).