Religion or belief: Employee guide

Introduction

Religion or belief discrimination is prohibited by our equality legislation.

Definition of religion or belief

In our equality legislation “religion” means any religion and a reference to religion includes a reference to a lack of religion. A religion must have a clear structure and belief system. Denominations or sects within a religion, such as Shias within Islam or Roman Catholics within Christianity, may be considered a distinct religion under the legislation.

“Belief” means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.

The belief must be:

• genuinely held;
• it must be a belief rather than an opinion or viewpoint;
• it must be a belief as to a weighty and substantial aspect of human life and behaviour;
• it must have a certain level of cogency, seriousness, cohesion and importance; and
• it must also be worthy of respect in a democratic society, not being incompatible with human dignity and people’s fundamental rights.

In a case on philosophical belief the Court also stated a) that a belief may not be shared by others; b) while support for a political party would not in itself amount to a philosophical belief, a belief in a political philosophy, such as Marxism, Socialism or Capitalism might potentially qualify; and c) a philosophical belief may be based on science. The Court stated that a belief in climate change could potentially amount to a philosophical belief.

Direct religion or belief discrimination

It is unlawful for an employer to discriminate directly by treating a job applicant or employee less favourably because of religion or belief.

An example could be where a Muslim job candidate is more qualified for a role than a Christian candidate but the prospective employer offers the job to the Christian candidate on the basis that they believe that the employer’s clients would prefer to deal with a Christian.

Another example could be where an a Buddhist employee is given a lower bonus than a Hindu employee despite performing as well as the Hindu employee.

On the other hand, the European Court of Justice (ECJ) considered a dress code case where the employer had a code of conduct stating that employees “are not permitted to wear any religious, political, philosophical symbols while on duty”. As the rule applied to all religions and everyone was treated equally, the ECJ held that it did not give rise to direct discrimination (though there could potentially be indirect discrimination – see below).

Association and perception

The discrimination need not be because of the victim’s religion or belief. It is unlawful to treat someone less favourably because of their association with someone who has a protected characteristic. For example, an employee could bring a direct discrimination claim if they were treated less favourably because they had a Sikh friend.

If a person is wrongly perceived to have a protected characteristic they will still be protected provided the treatment is because of that perception. An illustration of this could be an employee who was being treated less favourably because of a wrong belief that the person is Hindu.

Indirect discrimination

It is unlawful for an employer to discriminate by applying a provision, criterion or practice that disadvantages job applicants or employees of a particular group whose members share a religion or belief, without objective justification. The individual has to be disadvantaged, personally, too.