Religion or Belief Discrimination
What is religion or belief discrimination?
The Equality Act 2010 protects individuals from unlawful treatment because of a person’s religion or belief, which includes:
- a religious belief
- a philosophical belief
- having no religious belief
Courts have given guidance on philosophical belief and established that it must be:
- genuinely held
- must not be an opinion or viewpoint
- based on belief on a weighty and substantial aspect of human behaviour
- attain a level of cogency, seriousness, cohesion, and importance
- be worthy of respect in a democratic society
- not be incompatible with human dignity or conflict with the fundamental rights of others
For example, a belief in man-made climate change and the environment is capable, if genuinely held, being a philosophical belief.
Whereas, a “statutory human or moral right to own copyright” was not.
Religious discrimination is when you are treated less favourably because of your beliefs. This might be as a result of a one-off incident or could relate to ongoing treatment or the implementation of a policy.
Direct religion or belief discrimination
Direct discrimination is when you have been treated less favourably because of your religion or belief.
For example: Making a decision not to hire a muslim woman because she wears the hijab.
If an employer cannot provide an innocent explanation for the less favourable treatment, this would suggest the reason is the employee’s religion or belief.
Indirect religious discrimination
Indirect discrimination is when there is a particular policy or way of working that applies to everyone but puts people of a particular religion or belief at a disadvantage which is not justifiable.
For example, a requirement to work on Sunday shift may cause a disadvantage to a christian who believes that Sunday should be a day of rest and worship, however, this might be capable of objective justification if the employer can show there is a requirement to work Sundays because of the operational needs of the business.
Harassment
Harassment as defined in the Equality Act 2010 is unwanted conduct related to a person’s religion or belief that has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
For example, making jokes about a person’s religious dress.
Victimisation
Religious based victimisation is when someone is punished for complaining about religious discrimination in some way or other.
For example, someone complains about the offensive jokes that a manager makes in the kitchen one lunch time. They find that they are no longer invited to any social events and are subject to exclusionary treatment.
How to prove discrimination
The standard of proof in discrimination cases is the normal civil standard, namely whether, on the balance of probabilities (ie ‘more likely than not’ or 51% likely) discrimination occurred.
The burden of proof has two stages:
- First the worker must prove facts from which an employment tribunal could conclude, in the absence of an adequate explanation from the employer, that discrimination had occurred (not could have occurred). This is often referred to as the worker establishing a ‘prima facie’ case.
- If a prima facie case is established, the burden of proof then shifts onto the employer to prove that it/he/she did not commit discriminatory conduct.
Evidence in direct discrimination cases
Employment tribunal cases where there is strong, direct evidence of discrimination are rare. Cases where there is clear evidence of discrimination tend to settle without a hearing because most employers want to avoid the adverse publicity those hearings might attract.
In most discrimination cases an employment tribunal will have to make a decision based on what ‘inferences’ it can draw from the presented facts. As a result, there can often be lots of potentially relevant inference evidence which claimants can be tempted into using to prove their discrimination case. In most circumstances, claimants should resist that temptation as good points in a case can be discredited by a claimant arguing weak points which may be difficult to prove and lead to excessive and inconclusive evidence. This can have the effect of clouding the real issues, detract from any stronger evidence and unnecessarily lengthen the hearing.
Discrimination cases are generally more complex than other types of employment tribunal claims, with the average discrimination hearing being much longer than other hearings. This makes evidence selection an even more important part of preparing a discrimination case.
Frequently asked questions
Do I need comparative evidence?
Because in direct discrimination cases you need to show that you have been treated less favourably because of your religion or belief, there is an inherent requirement to establish the someone (‘the comparator’), who did not or would not suffer unfavourable treatment. In most cases it is impossible to show a real-life comparator where all the relevant circumstances are the same, and so it is necessary to present a hypothetical comparator and consider how they would have been treated. In practice, a claimant’s representative will often present both real and hypothetical comparators in an employment tribunal case.
Is my employer responsible for acts of discrimination by employees?
Is my employer responsible for acts of discrimination by employees? Employers will generally be liable for acts of discrimination by employees who are acting in the course of their employment. This is known as vicarious liability. Discrimination claims can also be brought directly against individuals, although it is rare for claims to be brought against an individual without a claim also being brought against the employer. If claims are brought against both the employer and individual(s), the employer can decide whether to try to defend itself separately from the individual(s) by arguing that it took all reasonably practicable steps to prevent the discrimination.
Do I need to raise a grievance?
The law does not require you to raise a grievance but, if you are still employed, in most cases you should do so before bringing a claim for discrimination, which you are entitled to do whilst you are still employed.
Do I qualify to bring a religious discrimination claim?
Yes, if you believe you have been discriminated against because of your religion or philosophical belief) there is no length of service or other qualifying requirement.
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