AA Legal Documents
Law guide

Religion or belief discrimination

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Religion or belief discrimination

It's against the law for an employer to discriminate against you because of your actual or perceived religion or philosophical beliefs, or because of your association with someone with a particular religion or philosophical belief. It is also unlawful to discriminate against you because you are not religious or you have an absence of religious or philosophical beliefs.

What is the definition of 'religion' or 'belief'?

The Equality Act 2010 defines 'religion' or 'belief' as any religion, religious belief or philosophical belief. There is no definitive list of recognised religions. To be recognised as a religion, there must be a clear structure and belief system, although if it is not recognised as a religion it may still be recognised as a philosophical belief.

Types of discrimination

Direct discrimination

This happens where you are treated less favourably than another worker because of your own religion or beliefs when compared with another worker of a different religion or belief but who otherwise shares the same or similar (but not materially different) circumstances as you (known as a 'comparator').

The comparator's circumstances do not need to be identical to yours (in terms of the type of job, job level, job experience and seniority, etc.) but they must not be wholly dissimilar. If you cannot find a suitable comparator, then a 'hypothetical comparator' can be used instead, who would be deemed to have the same employment as you (such as your title, role, level, etc.). An Employment Tribunal has the power to decide the particular circumstances of a hypothetical comparator (such as their personality).

The law also extends to protecting you if your employer treats you less favourably based on:

  • Their perception of your religion or beliefs, regardless of whether or not the perception is correct. For example, you may have been subjected to religious discrimination if you are refused a promotion because your employer perceives you to belong to a particular religious group, but your colleague is promoted and their circumstances are similar to yours, except that your employer doesn't have the same perception about their beliefs.
  • The religion or beliefs of another person (also known as discrimination by association). For example, if you are able to establish that you are being treated less favourably because you refused to comply with instructions that would require you to discriminate against someone because of their religion or beliefs, then this may amount to direct discrimination
Your employer could be liable for a direct discrimination claim even if there was no intention to discriminate against you.

Your employer can't defend a claim of direct religious discrimination by justifying it (arguing that their actions were a proportionate means of achieving a legitimate aim).

There is, however, an exception whereby direct discrimination is allowed in circumstances where it is required in order to comply with another law, or a genuine occupational requirement. For example, a Roman Catholic school may be able to restrict applications for a scripture teacher to baptized Catholics.

Usually, the only available defence to a direct discrimination claim is proving that there was no discrimination.

Indirect religious discrimination

This is where formal or informal working practices, provisions or criteria that your employer applies equally to all workers, puts a group of workers who share the same particular religion or belief at a particular disadvantage when compared with other workers and you also suffer that particular disadvantage.

It does not matter whether or not this has been done intentionally. For example, if your employer introduced a dress code which requires all workers to go bare headed, then those who are Sikhs (and who have to wear turbans as part of their faith) would be discriminated against and would potentially have grounds for an indirect discrimination claim.

Your employer can defend against indirect discrimination claims by justifying the use of the unlawful practice, provisions or criteria, if it can show that its application is a proportionate means of achieving a legitimate aim.

Harassment

Harassment is unwanted conduct towards a worker by an employer or another worker, because of that worker's actual or perceived religion or beliefs, or association with someone of a particular religion or belief. This applies to any conduct that violates a worker's dignity or creates an intimidating, hostile, humiliating, degrading or offensive environment, even if it was not intended as such.

For example, if your employer makes remarks about your or someone else's religion, which you or anyone else feels are hostile, your employer could be liable for harassment.

Workers who are not the subject of the unwanted conduct will also be able to make harassment claims for behaviour that they find offensive, even if they themselves do not have a protected characteristic.

Furthermore the unwanted conduct will be harassment even where it was not intended to be harassing. If it is reasonable to regard the unwanted conduct as having a harassing effect, it will be unlawful. Note that you will not be protected by the regulations if you are over sensitive and unreasonably take offence to an innocent comment.

Employers will be liable for any acts of harassment undertaken by their employees in the course of their employment – whether they knew about it or not – if they fail to take reasonable steps to prevent it. 'In the course of employment' means 'done to you whilst at work' or 'done to you while 'in a workplace-related environment'. Employers can't defend a claim of harassment by showing that they did not authorise it, or on the grounds that the actions were reasonable or warranted.

An employer can, however, escape liability for harassment, if it took reasonably practicable steps to prevent it.

You have the right not to be bullied or made fun of at work or in a work-related setting because of your religion or beliefs. You may also be protected if you're bullied in the mistaken belief that you're a member of a particular religion. For example, following the 9/11 terrorist attacks, some Sikhs suffered abuse because they were mistakenly thought to be Muslims.

For more information, see our section 'Bullying in the workplace'.

Victimisation

Victimisation happens when you are being treated less favourably because:

  • You have asserted your rights under legislation relating to religion or belief discrimination
  • You have given evidence or information in a complaint made by another worker regarding discrimination on grounds of religion or belief
  • You have taken any other action under legislation relating to religion or belief discrimination
  • You have alleged that your employer or another worker has contravened the legislation relating to religion or belief discrimination
  • Your employer believes that you have done or may do any of these things
For example, you might have grounds for a victimisation claim if, because you took any of the above action, you are prevented from going on training courses; subjected to unfair disciplinary action; or excluded from company social events.

Employment practices and religion

Giving information to your employer

  • You don't have to give information to your employer about your religious beliefs, but if you do, it will help them meet the needs of religious employees. Any information you give should be confidential (and anonymous, if possible).
Time off and facilities

  • Employers don't have to provide time off and facilities for religious observance (e.g. a prayer room), but they should try to do so where possible. For example, if there's a suitable room you should be allowed to use it, provided it doesn't disrupt others or your ability to do your job properly.
  • Organisations should consider carefully whether they are inadvertently discriminating indirectly. For example, if team meetings always take place on a Friday afternoon, this may discriminate against Jewish and Muslim staff, for whom Friday afternoon may have a particular religious significance. Employers will not escape liability in an Employment Tribunal by showing that discrimination was inadvertent or accidental.
Religious holidays

  • If you want time off for religious holidays, ask well in advance. Your employer should consider your request sympathetically – but they can refuse if it will affect the business.
Clothing

  • If you wear clothing or jewellery for religious reasons, your employer should make sure any dress code doesn't discriminate against you. A flexible dress code is usually possible, as long as health and safety isn't at risk.
Food

  • Some religions don't allow you to eat certain foods. If you don't want to handle such food (for example, if you work in a supermarket and don't want to handle pork), speak to your employer. They might be able to manage your request, provided it doesn't affect the business.
Religion and sexual orientation in the workplace

  • You may have particular views on sexual orientation because of your beliefs. However, people shouldn't treat, for example, gay or lesbian colleagues differently. In the workplace, everyone has the right to be treated with respect, no matter what their sexual orientation.
Positive action

Positive action in training and applying for particular positions

If an employer reasonably thinks that a group of its workers who share a protected characteristic (race, age, sex, sexual orientation, marital status, gender reassignment, pregnancy and maternity, disability or religion or belief) either...

  • suffer a disadvantage connected to their protected characteristic,
  • have needs that are different from the needs of those who do not have their protected characteristic, or
  • have a disproportionately low participation in an activity, such as partaking in training activities, doing particular work or filling particular posts in an employer's workforce,
...then the employer can take any proportionate action which, either; enables or encourages the group of workers to overcome or minimise their disadvantage; meets their needs; or enables or encourages them to participate in the activity.

Employers are allowed to provide special training to members of the group. They can also encourage members of the group to apply to do particular work or fill posts (for example, by saying that applications from them will be particularly welcome).

This does not mean that employers can discriminate in favour of the members of the group when it comes to choosing people to do the work or fill the posts, unless they meet the circumstances described below under 'Positive action in recruitment and for promotions', as that could be unlawful discrimination.

Positive action is not the same as 'positive discrimination', which is where members of a particular group who have a protected characteristic are treated more favourably regardless of the circumstances.

Positive action in recruitment and for promotions

The Equality Act 2010 makes it lawful for employers to take positive action when recruiting and making internal promotions in order to overcome a disadvantage connected with a protected characteristic or where the inclusion of people with the protected characteristic in a particular activity is disproportionately low. Employers will be able take positive action where all of the following apply:

  • There are two equally qualified candidates to choose between
  • An employer does not have a policy of treating persons with the protected characteristic more favourably
  • Positively discriminating is a proportionate means of achieving a legitimate aim.
The Act does not require employers to take positive action and it is therefore voluntary.

Further guidance on positive action can be obtained from the Equality and Human Rights Commission.

Positive discrimination

Positive discrimination is unlawful except if used when recruiting or promoting individuals in the limited circumstances described above.

What to do next

If you think you've been discriminated against because of your religion or belief or you have a religious requirement that isn't being met, you can talk to:

  • Your employer
  • Your human resources department
  • Your trade union representative (if you belong to a union)
Keep a written record of any bullying or harassment.

If possible, try to resolve the matter informally, but if not, you can follow your employer's grievance procedure. If your employer doesn't have a grievance procedure, you should set out your complaint in a letter and hand it to your line manager. If your line manager is the problem, then hand your letter to your HR manager or your line manager's supervisor. Your employer should then arrange a grievance meeting with you. If the outcome of the meeting is unsatisfactory, you have the right to appeal to a manager who was not previously involved in your grievance. For more information, see our article on Grievance procedures in England, Wales and Scotland.

As a last resort, you can apply to an Employment Tribunal. You must take legal advice before doing so. Your application must be lodged within three months of the act of discrimination taking place. If the discrimination extends over a period, you must bring your claim within 3 months from the end of that period.

Further information

See the Acas guide for employers and employees in respect of religion or belief and the workplace. Acas offers free, confidential and impartial advice on all employment rights issues.