What Is Discrimination on the Grounds of Belief or Religion?
Discrimination on grounds of religion or belief is when you are treated differently in way which is related to your religious beliefs or philosophical beliefs.
What Kinds of Religious Belief are Protected? Established religions such as Christianity, Islam, Judaism, Hinduism, Buddhism and Sikhism are covered as well as less well established examples such as Scientology or Rastafarianism. Lack of belief e.g. atheism and humanism are also protected. The scope of religion and religious belief has been interpreted widely by the courts. It is enough for an employee to genuinely believe that his religion requires a particular course of action to make it part of belief. This is even the case where the practice or belief is not considered a core component of the religion. This means that cultural practices and traditions could be covered. What Other Kinds of Belief Are Protected? Philosophical beliefs may be protected There are five requirements that the belief must satisfy before the court will consider whether you have been discriminated for holding such a belief:
- You must genuinely hold the belief;
- It must be a belief and not just an opinion based on perceived logic or information;
- It must be a belief concerning a weighty and substantial aspect of human life and behaviour;
- It must attain a certain level of cogency, seriousness, cohesion and importance; and
- It must be worthy of the respect in a democratic society, be not incompatible with human dignity and not in conflict with the fundamental rights of others.
Examples that could be seen as philosophical beliefs (provided they are genuinely held) include a belief that climate change is man made and political philosophy such as Marxism, communism or capitalism. Political beliefs may not be covered and so those who voted “No” in the Scottish Independence referendum may not be covered. Note that it will not cover racist or homophobic beliefs because these beliefs would not be worthy of respect in a democratic society. Have I been discriminated against? There are two ways an employer can discriminate against you on related to your beliefs. Look at the examples below and if your case is similar to any of these you should call our specialist Employment Barristers today.
- Direct discrimination is when you are mistreated or dismissed because of your beliefs. For example, you are not promoted, despite being the most qualified person for the job because of your beliefs. You are treated differently to someone hold holds different beliefs to you and it is irrelevant is the person carrying out the discrimination, for example, your manager, is of the same religion or holds the same beliefs as you.
Recent case law establishes that an employer cannot necessarily defeat a claim of this kind by saying that it is not the belief that is objected to but rather action in according with the belief. This is because the Human Rights Act provides for freedom not just to have beliefs but also exercise them. Direct discrimination is hard to prove but the law assists by providing that in many situations the burden of proof is on the employer to show that there is no discrimination.
- Indirect discrimination is when your employer applies the same rules to everyone but as a result of your beliefs you are put at a disadvantage. However, the employee is entitled to do this if it can be justified as a proportionate means of achieving a legitimate aim. A prime example of this is when a dress code set by an employer adversely affects those with religious beliefs such as the wearing of a hijab or niqab. This may be justified as a proportionate means of achieving a legitimate aim such as security or health and safety. However in Eweida v British Airways, it was ultimately held that British Airways could not lawfully prevent an employee from wearing a cross on her uniform.
Some of the most well known cases on in this areas concern the clash between claims by those of religious faith to act in accordance with their beliefs and the rights and freedoms of other particularly the right to not to be discriminated against on the grounds of sexual orientation. Thus in Ladele v Islington, the Courts held that a Registrar could be required to celebrate same sex marriage even if this was contrary to her religious belief. There are also two other types of claim closely related to discrimination. These are:
- Victimisation is when you bring discrimination proceedings, make an allegation of discrimination or give evidence about a complaint of discrimination and then you are treated badly as a result. For example, you give evidence at a hearing of a colleague’s religious belief discrimination case. You then return to work and no one will speak to you. Then the commission you earned that month is withheld from you for no valid reason.
- Harassment is when you are subject to behaviour that is intended to mistreat or humiliate you or to create an intimidating, hostile, degrading, humiliating or offensive environment for you be in. For example, you have recently started a new job and in a lively lunchtime discussion you expressed your communist beliefs. Subsequently, you have been subject to derogatory comments and given more menial tasks than you were before.
What about if the role requires you to be a particular religion? There are two situations where an employer can require you to be of a particular religion or not of a particular religion:
- The employment is for the purposes of organised religion and it is justified that the employee should be of religion or not of that religion in order to comply with the religion in question or not to conflict with strongly held beliefs of the religion’s followers.
- Having regard to the ethos and nature of the work, it is necessary to require the employee to be of a particular religion or to be not of that religion and this requirement is justified.
A common example of an occupational requirement is religious schools. However, the proportionality is applied strictly. The need to be of the relevant religion must be necessary for the particular post the employee is in, and not just a catch all requirement because it is a religious school. How do I finance a claim? There are many ways in which claim can be financed. You may be entitled to Trade Union support. More promisingly, you may find on close examination of your household insurance policies that your benefit from legal expenses insurance – YEB barristers are expert at dealing with insurers. The highly publicised Employment Tribunal Fees should never in fact be a barrier to a deserving ET claims What can I get? If your claim is successful, the possibilities are:
- A declaration of your rights.
- A recommendation regarding the action your employer should take to reduce the effect the discrimination has on you.
- Compensation (no maximum amount). This is particularly important if your employer dismisses you in a way that is found to be discriminatory. If you were to claim only unfair dismissal your claim would be limited to £78,335 or one year’s pay whichever is the lower. If your dismissal is an act of discrimination this does not apply.
- Your compensation can include damages for injury to feelings.
We offer all potential new clients a thirty minute consultation for a fixed fee of £150 including VAT.
If you would like to claim your consultation, click the button below.
Choose Option 3 ’36 Civil’ and mention’ ‘YEB’