A legal guide to sexual orientation and, or, religious belief discrimination in the workplace
Discrimination on Grounds of Religion or Belief
The Equality Act 2010 defines religion or belief as follows:
- “Religion” means any religion, and a reference to religion includes a reference to a lack of religion
- “Belief” means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief
It is not immediately clear from the above definition what might count as a religion or a religious belief and what types of philosophical belief might be protected. However, given that the definition mirrors that previously found in the Religion or Belief Regulations, there is already an instructive body of case law, from which to seek guidance.
Courts and Tribunals have to consider what a religion is. They are likely to look for collective worship, a doctrine and a profound belief reflecting a way of life or view of the world. Similar philosophical beliefs are likely to include humanism, agnosticism or atheism.
Discrimination on Grounds of Sexual Orientation
Sexual Orientation is defined as a sexual orientation towards:
- Persons of the same sex
- Persons of the opposite sex
- Persons of the same sex and the opposite sex
- Perceptions of sexual orientation are also covered. A claim can be made if an individual is perceived as having a particular sexual orientation and is discriminated against on this basis
Discrimination on Grounds of Gender Reassignment
A new stand alone protected characteristic has been incorporated into the Equality Act – that of gender reassignment. Previously such claims had to be brought under the sex discriminationlegislation but the Equality Act has made provision for stand alone claims on this issue.
The types of discrimination (direct/indirect etc) are the same as for the other protected characteristics but the following points apply specifically to this one:-
- There is no longer a requirement for a person to be under medical supervision to be protected
- There is specific provision for absence from work due to reassignment treatment
- Certain occupations with religious organisations may still exclude transsexuals on grounds of non-conflict with a majority of that religion’s followers
Marriage and Civil Partnership
- A civil partner who is treated less favourably than a married person may claim sexual orientation discrimination
- There remains a lack of protection for single people
- May not form part of the combination for purposes of dual discrimination
Victimisation occurs where a person (A) subjects another person (B) to a detriment because either:
- B has done a protected act
- A believes that B has done, or may do, a protected act
A protected act may include:
- Bringing proceedings brought under the Equality Act 2010
- Giving evidence or information in connection with proceedings under the Equality Act 2010, regardless of who brought those proceedings
- Doing any other thing for the purposes of or in connection with the Equality Act 2010
- Alleging (whether expressly or otherwise) that the respondent or another person has contravened the Equality Act 2010
- A later amendment to the Equality Act incorporates into ‘protected acts’ such acts carried out in relation to previous legislation
Harassment occurs where on grounds of religion or belief/sexual orientation, A engages in unwanted conduct which has the purpose or effect of:
- Violating B’s dignity; or
- Creating an intimidating, hostile, degrading, humiliating or offensive environment for B
- The Tribunals will have to decide if the conduct should reasonably be considered as having one of these effects having regard to all the circumstances, including in particular the perception of B
Individuals who believe that they may have been subjected to discrimination may serve a questionnaire requesting an explanation of their treatment and seeking information relevant to their claim. The answers to the questionnaire are admissible in evidence before Tribunals. If the Tribunal considers that the employer did not provide appropriate answers or indeed omitted to reply within 8 weeks, it may draw an adverse inference from that fact including an inference that the employer has been guilty of discrimination.
Employers should conduct an overall review of their practices, policies and procedures to ensure that these could not be considered to be directly or indirectly discriminatory – for example, allowing smokers to take breaks but not allowing requests for prayer breaks, insisting on weekend attendances for training and not catering for religious diets in the company canteen. Communication with the workforce is vital, not only to prevent claims but to provide a positive and all encompassing working environment.