Shirley Chaplin was transferred to a desk job by the NHS after refusing to remove a confirmation crucifix which she d worn for 30 years. Gary McFarlane was dismissed for refusing to provide psycho-sexual counselling to same-sex couples. Lillian Ladele was disciplined for refusing to carry out civil partnership ceremonies.
They were all unsuccessful in their actions. Only one of four succeeded: Nadia Eweida, a BA employee who had been refused permission by BA to wear a cross visible at work.
The cases turn on their facts but highlight that a court is likely to attach more weight to health and safety arguments than it will to seeking to improve corporate image.
This outcome is arguably to be welcomed by SMEs, who may already feel overburdened by the weight of discrimination law. Nevertheless, these cases highlight the importance of employers being able to show compliance with the relevant legislation.
What does my business need to be aware of
Your business should not treat a worker less favourably because of their religion or belief. For example, although there is no obligation on your business to allow a worker to pray at appropriate times, this may amount to discrimination if you do not carefully consider that request against business requirements.
Some of the factors you should consider are:
- The impact on cost/ efficiency to your business of granting a request;
- Any potential effect on health and safety; and
- Any potential impact on other co-workers” rights.
Your business should also not adopt any practice which might place workers of a particular religion or belief at a disadvantage. This could arise for example where workers are required to dress in a particular way if this means they can’t wear an item of clothing they regard as part of their faith. Usually this should be permitted provided that the clothing does not pose a health and safety risk.
Always ensure that you do not treat a worker less favourably than someone else because they have complained or taken legal action about religious discrimination – this could give rise to a claim that they have been victimised. Workers should not be subjected to harassment, i.e. unwanted conduct intended to (or having the effect) of violating their dignity.
How can my business reduce potential claims?
Dealing appropriately with religion and beliefs is a sensitive and sometimes problematic issue. In each case, you should try to balance the legitimate needs of your business with the religious rights of the particular employee. If you can demonstrate that this has been done, you will also reduce the likelihood of any claim.
There are some practical steps that you can take to reduce the risk of a complaint:
- Ensure you have up-to-date equal opportunities and harassment policies and procedures in place;
- Ensure the workers are aware of these policies;
- Provide equal opportunities training to senior staff and HR; and
- Ensure employees know any religious grievance will be taken seriously, even if raised informally.
Taking these positive steps can improve morale within the workplace, as well as advancing the reputation and public image of your business.
Keely Rushmore is a solicitor in the employment department at SA Law.