A tolerant workplace?

Is your workplace tolerant to religion or race?

In the weeks following the yes vote to Brexit, the press has been full of stories highlighting an increase of racial hatred ranging from sly comments in passing on the street or in shops to abusive graffiti as well as letters and threats sent to Mosques and community centres.

While many ‘leave’ voters have made their decision on political viewpoints or concerns, a minority have taken the vote for Brexit as an opportunity to display racial hatred.

How would you react to racial hatred in the workplace?

The Equality Act 2010 protects employees against harassment which is defined as ‘unwanted conduct related to race’ which has the purpose or effect of violating an employee’s dignity or creating an offensive or hostile environment to work in.

Even if it is another employee that makes an unwanted racial comment to a fellow employee on a break or even on a staff event out of working hours, the employer could be liable for this discrimination. If the employee made the comment in the course of their employment, the employer is liable for their actions.

As an employer you could defend the claim if you have a fully implemented equal opportunities policy coupled with stringent equal opportunities training delivered to all staff.

The important question is, have you done everything you reasonably can do to prevent that discrimination occurring?

There have been two recent contrasting opinions by the Advocate General in the European courts regarding whether restrictions on wearing a hijab or other religious headscarves are an act of direct discrimination on the grounds of religion.

In one case (Achbita v G4S Secure Solutions NV), it was suggested that a company rule which prohibited the wearing of any visible signs of political, philosophical or religious beliefs was not an act of less favourable treatment of a Muslim woman who was dismissed for wearing a headscarf. It was concluded that as this applied to religious, political or other beliefs, then the neutrality avoided any direct discrimination. It could be indirectly discriminatory subject to whether any occupational requirement of the employer was proportionately achieved.

A second Advocate General opinion in Bougnaoui v Micropole SA suggested that a requirement to remove a headscarf or veil when in contact with clients was directly discriminatory.

These are opinions rather than binding decisions, so we wait to see whether the European courts clarify this conflict.

Both of these decisions have been given against the backdrop of other high-profile cases which have addressed the issue of wearing religious symbols in the workplace and uniform or other policies which restrict this.

Wearing Religious Symbols

The general view is that a Court or Tribunal would need to strike the balance between the employee’s right of freedom of religion and freedom of expression, their right to not be discriminated against and the occupational requirements of the employer.

An employee who has been prevented or restricted from wearing religious dress or symbols may well have a valid claim against their employer for religious discrimination. This could be direct discrimination i.e. they are treated less favourably than a comparator in the same circumstances as them save for their religion. It could also be an act of indirect discrimination i.e. a provision of the employer that disproportionately disadvantages a particular group of employees.

Do you have uniform policies that restrict the wearing of religious clothing or the display of religious symbols? Have you considered how this fits with the recent cases about this?

It is always a good idea for businesses to review their policies and procedures on a regular basis to ensure it continues to comply with ever changing employment law.

In the current climate Howells would recommend ensuring that you have strong policies in place regarding workplace equality and harassment as well as ensuring that you review any uniform policies that you have in place to avoid them being discriminatory.

Howells are here to help and our expert team will work with you to protect your business.

Contact us today to arrange an employment law health check on your policies or for our expert advice and support on 0114 249 6666, 01709 364 000 or  01226 805190 or see here for more information: employment for businesses

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