At Work: Human resources - It's the law - Religious discrimination

Emma Burrows, a partner and head of the employment group at Trowers & Hamlins solicitors

Employers have to tread carefully if they are to avoid discriminating on the grounds of religious belief.

The Employment Equality (Religion or Belief) Regulations 2003 prohibit discrimination by an employer on the basis of an individual's religion or belief. For the purposes of the regulations, "religion or belief" is defined as "any religion, religious belief or similar philosophical belief".

The guidelines from conciliation service Acas say that a tribunal is likely to consider, for example, collective worship, a clear belief system and "a profound belief affecting the way of life or view of the world".

The regulations prohibit direct and indirect discrimination. Indirect discrimination on grounds of religion or belief occurs where an employer applies a provision, criterion or practice equally, but that application puts people of a particular religion or belief at a disadvantage. The Acas guidance uses the example of an organisation that has a dress code stating that "men may not wear ponytails" as an example. Such a dress code may indirectly disadvantage Hindu men, some of whom wear a Shika, a small knotted tuft of hair at the back of the head, because it is a symbol of their belief.

Exceptions to discrimination may be made in very limited circumstances, such as if there is a genuine occupational requirement for the worker to be of a particular religion or belief in order to do the job, or to comply with the religious or belief ethos of the organisation. An example given in the Acas guidance is that of a care home managed by a religious charity. It may be able to show that being of a particular faith is a genuine requirement of its carers because they are required to carry out their duties in a manner that fulfils the physical and spiritual needs of the home's patients.

In recent cases, employment tribunals have found an employer guilty of discrimination when it dismissed an employee for taking extended leave to make a pilgrimage to Mecca, and have held that changing a practising Christian's work rota so that she had to work on Sundays was indirectly discriminatory because, although it applied to all employees, it put practising Christians at a particular disadvantage.

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