In January, the European Court of Human Rights handed down judgment in Eweida and ors –v- UK which considered four combined cases about religious rights in the workplace. In order to assist employers understanding of the practical implications of this decision, the Equality and Human Rights Commission (EHRC) have published new guidance for employers.
Although all four cases were brought by Christians, the EHRC stresses that the implications of the judgment applies equally to employees with any religion or belief, or, alternatively, none. The new guidance is intended to serve as a good practice guide to clarify the law and set out how employers can use this to manage and protect religion and belief in the workplace. The judgment affects employer responsibilities for policies and practices affecting religion or belief rights in the workplace, the rights of employees (including job applicants) and the rights of customers or service users. Mark Hammond, CEO of the EHRC, said: “Our guidance provides clarification and practical advice to employers and employees to help them avoid costly and divisive legal action.”
The guidance specifically addresses six key questions:
- How will an employer know if a religion or belief is genuine?
A protected belief should be more than an opinion or a viewpoint and it should be serious, genuinely and sincerely held and worthy of respect in a democratic society. Employers are not expected to be experts in religion or belief issues and should not spend too much time or expense examining the motivation or genuineness of a particular employee’s religion or belief. In most cases this will be easily identified. An employer should generally only question a belief in the most exceptional circumstances where, for example, it is very obscure, appears to be objectively unreasonable, or the sincerity of the belief of an employee is genuinely in doubt. In such situations, employers can ignore requests when they reasonably conclude that the belief is not sincere.
- What kind of religion or belief requests will an employer need to consider?
Most requests are likely to cover manifestation of belief (e.g. clothing, appearance, jewellery), time off for religious or belief reasons or adapting work duties (e.g. so an employee does not come into contact with alcohol or meat for religious reasons).
- What steps should an employer take to deal with a request?
Employers should review work place policies and practices to ensure that they do not unjustifiably discriminate against an employee who requests a change due to a particular belief. Employers should take all requests seriously and as a starting point they should consider how to accommodate the request unless there are cogent or compelling reasons not to do so, assessing the impact on other employees and the operation of the business.
- What questions should employers ask to ensure their approach to a religion or belief request is justified?
An employer should seek to balance the religion or belief needs of an employee with the legitimate needs of the business and the interests of others taking into account cost, disruption, health and safety implications, impact on other employees and impact on customers/service users.
- Do employees now have a right to promote their particular religion or belief when at work?
Employees may assert the right to discuss their personal beliefs in the workplace and employers should not prevent such conversations, unless to do so is a “proportionate means of achieving a legitimate aim” e.g. if the conversations amount to harassment of other people. Employers may however be justified in limiting the freedom of employees in promoting their beliefs at work, when this involves someone in a powerful position acting inappropriately towards someone in a vulnerable or subordinate position.
- Can employees refrain from work duties?
Some employees may wish to opt out of the performance of some of their duties due to religion or belief – sometimes known as conscientious objection e.g. medical staff opting out of performing abortions. Whilst this is the case, should the employee be providing a public service they cannot, because of their religion or belief, discriminate unlawfully against customers or service users. Employers should carefully consider the circumstances of every request from an employee to opt out but is not required to either accept or reject a request automatically.
Further information and examples of requests can be found: http://www.equalityhumanrights.com/advice-and-guidance/guidance-for-employers/religion-or-belief-new-guidance-february-2013/