· 2 min read · Features

Religious discrimination: still a contentious work problem

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Asking an employee to remove a palm cross from a company van: is this unlawful discrimination?

It has been reported recently that an electrician is facing disciplinary action by his employer, the housing association Wakefield and District Housing (WDH), after he failed to remove a small palm cross from the dashboard of his company van. WDH allegedly asked the employee to remove the palm cross in order to avoid the implication it was a Christian organisation. WDH reportedly claims that the employee was in breach of a company policy prohibiting employees from displaying personal items in the organisation's vehicles. The employee refused to comply with this request and as a result WDH is commencing disciplinary proceedings against him.

Have WDH's actions left it vulnerable to a religious discrimination claim? This article will look at some recent cases in which these issues have been explored.

The basics

Discrimination on the grounds of religion or belief is prohibited by the Equality Act 2010. Under the Act, it is unlawful for an employer to:

(a) directly discriminate against an employee by treating him or her less favourably than it would treat others because of religion or belief; and

(b) indirectly discriminate against an employee by applying a policy/provision, criterion or practice that disadvantages employees of a particular religion (unless the employer can objectively justify that policy).

Readers may remember the highly publicised case last year where a British Airways employee, Nadia Eweida, complained she had been subject to indirect discrimination when British Airways did not allow her to wear a small silver cross, as an expression of her faith, as it contravened BA's uniform policy at the time. However, the Court of Appeal rejected the argument that she had been indirectly discriminated against as only she felt disadvantaged by the policy and, in any event, the policy could be justified as a proportionate means of achieving a legitimate aim.

In another case, Ladele v London Borough of Islington, the council took disciplinary action against a Christian employee when she refused to carry out civil partnership services, on the basis that same-sex relationships were against her religious views. The employee's subsequent claim for religious discrimination failed on the basis that the council had a legitimate aim in providing effective services to civil partnerships.

The courts have also distinguished between taking action against an employee because of his/her religion or belief (which is prohibited under the Act) and taking action against an employee because he or she manifested those beliefs in an unacceptable manner (which will not amount to discrimination). For example, in Chondol v Liverpool City Council, an employee who had been inappropriately promoting Christianity to its service users was found not to have been discriminated against when he was dismissed.

Discrimination on the grounds of religion continues to be a frequently litigated area and we can only wait and see whether the WDH disciplinary process will result in a formal claim.

In the event of any such claim, WDH may be able to argue its actions are not discriminatory, on the basis that there was a formal policy in place that only disadvantages one employee (as in Eweida) and that, in any event, the policy is a proportionate means of achieving a legitimate aim (ie wanting to be seen as a neutral organisation).

What can amount to a religion or a belief system (the courts have held that beliefs relating to anti-fox hunting and climate change can fall within the ambit of the Act) continues to be a contentious area and the liability for religious discrimination can be high, as damages are uncapped. Employers should therefore be mindful of this when taking disciplinary action against employees who have strongly held beliefs.

Claire Benson is managing associate at law firm Addleshaw Goddard