RELIGION OR BELIEF DISCRIMINATION

A guide on religion or belief discrimination from the employment law experts

Marjon Law, specialist employment lawyers is owner-led by Marc Jones, who is ranked and recommended in legal publications as a leading employment law solicitor, with over 20 years of experience practising solely in employment law.

If you would like urgent advice on discrimination, please contact us as soon as possible.

What is unlawful discrimination?

The Equality Act 2010 (EqA) prohibits discrimination against individuals in the areas of employment, education, and the provision of goods, facilities and services for a protected characteristic (ie age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, or sexual orientation).

The EqA protects employees, workers (ie engaged under a contract personally to execute work or labour) and contractors (ie whose labour is supplied by an employer to another person). These rights apply whatever the length of service and whatever hours worked.

Legal protection against unlawful discrimination applies even if some of the work is to be done outside Great Britain but will not apply if the work is to be done wholly outside Great Britain. It applies before, during and after employment.

For the purposes of this web page we use the term employee.

Religion or belief discrimination

To qualify as religion or belief the case of Grainger plc and others v Nicholson concluded it must:

be genuinely held
not be an opinion or viewpoint based on the present state of information available
be a belief as to a weighty and substantial aspect of human life and behaviour
attain a certain level of cogency, seriousness, cohesion and importance
be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

To qualify as philosophical belief the case of Grainger plc and others v Nicholson concluded:

it must have the same attributes as religious belief
it must have a similar status or cogency to a religious belief. However, it need not allude to a fully-fledged system of thought in other words, it does not need to be an “-ism”
it need not be shared by others
while support of a political party does not of itself amount to a philosophical belief, a belief in a political philosophy or doctrine, such as Socialism, Marxism or free-market Capitalism, might qualify
it may be based on science. If Creationism (which is based on faith) is protected, Darwinism (which is based on science) must plainly be capable of being a philosophical belief.

What types of religion or belief discrimination are there?

Religion or belief discrimination can be:

What is direct religion or belief discrimination?

An employer (or other person) discriminates against an employee under section 13 of the EqA, if:

because of an employee's religion or belief
the employer (or other person) treats the employee less favourably than the employer (or other person) treats or would treat others.

Less favourable treatment means a detriment of a kind that a reasonable person would or might take the view that in all the circumstances you have been disadvantaged.

An unjustified sense of grievance cannot amount to a detriment. It is not necessary to demonstrate some physical or economic consequence.

In claiming direct religion or belief discrimination, an employee will need to prove that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to theirs.

For the purposes of establishing direct religion or belief discrimination, it does not matter whether the employee is of a particular religion or has a particular belief, as discrimination can be:

by perception
by association.

Examples of direct religion or belief discrimination

an employer rejects a practising Christian employee's application for promotion because it believes this will offend the employer's Middle-Eastern clients, even though the employee is the best candidate for the job, this will be direct religious discrimination
an employee is treated less favourably because the employee is perceived to be Muslim when the employee is actually Christian
an employer treats an employee less favourably because an employee’s spouse is Jewish.

Direct religion or belief discrimination will also occur if an employer instructs, causes or induces another to commit discrimination. It will also commit an infringement if it causes detriment to an employee because eg they refuse to obey an instruction to act in a way that would disadvantage employees of a particular religion or belief.

What is indirect religion or belief discrimination?

Indirect religion or belief discrimination occurs under section 19 of the EqA where:

an employer applies to an employee a provision, criterion or practice (PCP)
the employee has a protected characteristic
the employer applies (or would apply) that PCP to persons who do not have that protected characteristic
the PCP puts or would put the employee at a particular disadvantage when compared to other persons without that protected characteristic
the employer cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.

In other words, indirect religion or belief discrimination occurs where the employee’s employment is subject to an unjustified condition which because of their religion or belief, the employee finds it more difficult to meet.

In determining whether there has been a detriment, it will be necessary to establish a pool of employees for comparison on a like-for-like basis of those that have and have not been affected by the PCP.

Example of indirect religion or belief discrimination

an employer introduces a new requirement to work on a Sunday is likely to disadvantage some employees of the Jewish faith.

The Equality Act 2010 (Amendment) Regulations 2023, a new provision of indirect associative discrimination has been introduced under section 19A of the EqA. The same provisions for ordinary indirect discrimination apply but extend to an employee who does not share a protected characteristic with a group that is placed at a particular disadvantage arising from the PCP, but who nonetheless suffers together with that group.

What is harassment related to religion or belief?

Harassment related to religion or belief occurs under section 26 of the EqA during the course of employment if the conduct is unwanted and has the purpose or effect of:

violating an employee's dignity or
creating an intimidating, hostile, degrading, humiliating or offensive environment.

Such conduct will only amount to harassment if in all the circumstances, the perception of the conduct is reasonably considered to have that purpose or effect. A one-off act can amount to harassment.

What is victimisation?

Victimisation occurs under section 27 of the EqA when an employee is treated less favourably than another person whose circumstances are the same because they:

brought claim under the EqA
gave evidence or information in connection with a claim under the EqA
did any other thing for the purposes of or in connection with the EqA
alleged that your employer or another person has committed an act that contravenes the EqA.

Justification for religion or belief discrimination

There will be no indirect religion or belief discrimination if an employer’s actions are justified.

To establish justification, an employer will need to show that there is a legitimate aim (ie a real business need) and that the PCP is proportionate to that aim.

Justification must be on objective grounds with an objective balance between the discriminatory effect and the reasonable needs of the employer.

Liability for religion or belief discrimination

An employer will be vicariously liable for the acts of its employees and workers for religion or belief discrimination unless it can show it took reasonably practical steps to prevent it from happening.

The material contained in this web page is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

Why choose Marjon Law for religion or belief discrimination advice and representation?

We have been involved directly and indirectly with hundreds of employment tribunal claims for clients for over 20 years, many of which involved workplace discrimination.

As specialist employment lawyers, our clients' interests are paramount to us.

We ensure that all our clients receive the best advice possible.

We will advise on workplace discrimination and represent you in any subsequent employment tribunal claim.

Contact us today ...