Religion in the Workplace
Tuesday 29th September 2009Last week, employers received a reminder of how difficult it can be to manage the expression of religious belief in the workplace, especially when balanced against other obligations. Exeter nurse Shirley Chaplin became embroiled in a row with her employers the Royal Devon and Exeter Hospital (RD&E) over her right to express her Christianity by wearing a crucifix whilst at work. RD&E's uniform and dress code prohibits the wearing of necklaces by front-line staff for health and safety reasons. Mrs Chaplin, having since been redeployed away from front-line duties (as she refused to remove her cross), now says that she intends to bring a claim in the Employment Tribunal.
Whilst the issues surrounding this particular case may well be complicated, this is just the latest in a series of disputes that have focused the spotlight on religion, and how we deal with strongly-held religious views in a multi-cultural workforce.
The Employment Equality (Religion or Belief) Regulations 2003 prohibit people being treated less favourably in the workplace by reason of any "religion, religious belief, or similar philosophical belief". This means that it is unlawful to discriminate either directly, or indirectly (through a provision or practice that disproportionately affects one group more than another, without having good reason), because of someone's religion. It is also unlawful to discriminate by perpetrating or allowing victimisation or harassment to take place within the workplace.
Religion in the workplace is just one face of the perennial problem of how we balance competing, and sometimes conflicting, rights and freedoms within a diverse working environment. With the right to hold and express religious views on the one hand, employers have to balance their employee's right to have different (or indeed no) views and indeed to protect their health and safety on the other.
The message that does seem to be coming across is that employers are entitled to expect professional limits to be set, provided they have a fair and objective reason for setting those limits.
Earlier this year, a social worker's appeal against a Tribunal decision that he had not been discriminated against on the grounds of his religion failed. Mr Chondol, a devout Christian working as a social worker within Merseyside Community Mental Health Team, was dismissed following disciplinary proceedings for failing to follow a reasonable management instruction not to promote his religious beliefs overtly. Amongst the incidents that had caused concern was Mr Chondol giving a bible to a service user, and asking another whether he believed in God and went to Church. His managers took the view that Mr Chondol was in breach of the Council's clear prohibition on the overt promotion by social workers in their work of any religious beliefs that they might hold.
The Employment Appeals Tribunal (EAT) upheld the decision that Mr Chondol's employer had not discriminated against him, since his employer would have acted in precisely the same way regardless of what religion it believed was being promoted or indeed what view (religious or otherwise) was being promoted. Therefore there was no discrimination on religious grounds.
The EAT accepted that there was a distinction between dismissal for possession of religious belief (which would be impermissible), and dismissal for the inappropriate promotion of those beliefs to others.
At the same time as the EAT was ruling in this case, another South-West nurse hit the headlines because of her Christian faith. Caroline Petrie was suspended pending investigation (although she was subsequently allowed to return to work) as a result of her offering prayers for an elderly patient whom she cared for. She had apparently already received a warning regarding giving prayer cards to patients. The investigation resulted after the patient contacted the NHS Trust, and the debate surrounding this case was extensive.
What these cases suggest is that it is legally acceptable for an employer to prohibit certain types of behaviour, regardless of whether they relate to religion or belief, provided that the prohibition is applied evenly, across the board and is objectively justified. In particular in these cases, the employers had rules in place that prohibited the promotion of religious views (or at least the employee was aware that there were concerns surrounding the sharing of their faith). If no such policy had been in place, or the employee did not have specific knowledge, then the employers' actions may well have fallen foul of the religious discrimination rules.
The right to hold an individual belief is safeguarded, provided that the belief is not encroaching on anyone else's beliefs (or indeed lack of them). That these cases have all centred on individuals working with vulnerable groups (children, the elderly and the mentally ill) probably made the issues more clear-cut - although it may well be the case that the same behaviour in an office environment would be viewed as equally unacceptable.
Just last Friday, Nadia Eweida, the BA employee who unsuccessfully claimed she was religiously discriminated against because she was suspended from work for refusing to comply with BA's uniform policy which required her to conceal her cross at work, saw the latest step in her legal battle fail. Ms Eweida had made a "protective costs" application which (if successful) would have safeguarded her from liability for BA's legal costs in respect of her planned appeal. BA persuaded the Court of Appeal that Ms Eweida's case was simply a dispute between an employer and employee, rather than of wider public importance. Ms Eweida now has to pay £3,500 towards BA's legal costs of her application, although it has been reported that BA has already incurred £289,000 in costs.
So how does an employer navigate this potential minefield? In short, you should ensure that you have equal opportunities policies in place, and that all staff are aware of them and that (at the very least) managers receive training in them. The crucial point is that these policies are then implemented fairly, with equal treatment being afforded to all employees regardless of religion or belief, so that the same treatment is given to an employee of one religion as to an employee following a different faith.
If you do feel that it is inappropriate for religion to be discussed in the workplace, then you should ensure that this policy is clearly communicated, and that you have a justifiable reason for having the policy in place (such as the respect for other employees with different beliefs). Remember that harassment on the grounds of religion or faith (or lack of it) is also prohibited, and (as an employer) you can be liable for your employees' actions.
If you are aware of any concerns that any members of your staff have, you should ensure that you take appropriate action. This could involve having an informal discussion to try to resolve any concerns, re-emphasising what your policy is on religion in the workplace, whilst at all times taking care that you are not adversely affecting employees with one religion or belief more than others.
This area of law will no doubt continue to evolve, as cases such as these work their way through the system. However, the key point to remember is that you should not be taking action against an employee on the grounds of their religion or belief, if that same treatment would not be afforded to another employee with a different belief system.
