Under the Equality Act, employees are protected from discrimination because of religion or belief.
To avoid landing in hot water with religious discrimination, employers need to avoid making any of the following mistakes:
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Thinking employees with no religious faith are not protected
Under the Equality Act, employees are protected from discrimination whether they have a religious or philosophical belief, or they have no religion or belief.
Discrimination is unlawful during recruitment, employment, dismissal and even post-termination (i.e. when providing references). Most notably, employees do not need to have a minimum qualifying length of continuous service in order to make a claim for discrimination based on religion or belief, so employers need to take care.
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Asking questions trying to ascertain an employee’s religion
Most employers will know that if they can’t ask questions such as ‘What religion do you practice?’, but even questions such as ‘What school did you go to?’ are likely to be deemed discriminatory if it has no relevance to the role.
If they provide information about their religion or belief without you asking, you should not allow the information to influence your decision when deciding who to hire.
Remember, if you do not offer an applicant the role due to their religion or belief, you leave yourself vulnerable to Employment Tribunals claims. Learn some tips to tackle unconscious bias during the recruitment process here.
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Passing off the offensive comment or act as banter
Just a bit of ‘harmless banter’, such as nicknames, insults, malicious rumours or sending offensive emails, can cross the line and actually be considered harassment.
Under the Equality Act, if an employee is found to have harassed another employee, the employer can be held responsible. However, you will not be held vicariously liable for harassment committed by your employees if you can prove that they took reasonable steps to prevent it occurring.
You can read more about banter here.
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Misunderstanding the scope of direct discrimination
Direct discrimination encompasses discrimination by perception and discrimination by association.
Discrimination by perception is where a person is treated less favourably because other people believe they practice a religion or faith, but in fact, they do not.
For example, if you do not promote an employee because you think they are Catholic, but in fact, they are a Buddhist.
Discrimination by association is where a person is discriminated against as a result of someone else’s religion. So the employee is treated less favourably because of their association with a third party, such as a spouse, partner, sibling or child, who practices a religion.
For example, a job applicant has been offered a role, but this is withdrawn once the employer finds out their husband is a Jew. This could constitute discrimination because even though the applicant is not a Jew, she is associated with someone who is.
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Banning talk in the workplace about religion
Employers should not prohibit employees from talking about religion at work. But there may be times when it is appropriate, for example, to protect the organisation’s reputation. Seek legal advice at the earliest opportunity to explore this further.
