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20 February 2013

Employers' response to the Strasbourg decisions

Employers' response to the Strasbourg decisions

The Equality and Human Rights Commission (EHRC) recently engaged in a brief limited consultation before publishing a good practice guide to help employers understand how to recognise and manage the expression of religion or belief in the workplace to comply with the decisions of the European Court of Human Rights following the recent Strasbourg cases involving Christians.

The Evangelical Alliance contributed to the consultation, though its attempts to persuade the EHRC to begin applying the principle of reasonable accommodation – widely seen as an important potential way forward in the area of rights conflicts – were unsuccessful. The EHRC faced a difficult task in finalising such guidance as evidenced by it acknowledging receipt of wide interpretive variations on where the law stands now. It is clear that the law is not settled in this area and may yet be formally overturned or modified if appeal is made to the Grand Chamber of the European Court of Human Rights.

The EHRC good practice guide aims to specifically address the following questions:

  • How will an employer know if a religion or belief is genuine?
  • What kind of religion or belief requests will an employer need to consider?
  • What steps should an employer take to deal with a request?
  • What questions should employers ask to ensure their approach to a religion or belief request is justified?
  • Do employees now have a right to promote their particular religion or belief when at work?
  • Can employees refrain from work duties?

Most requests from employers and employees are likely to cover:

  • Manifestation of belief: This covers clothing, appearance and jewellery with religion or belief meaning. Examples include: wearing headscarves, turbans, kippahs (skull caps) and modest dress, having a beard, and wearing a cross, crucifix, kara (a Sikh steel bracelet) or Star of David.
  • Time off work for religion or belief reasons: This covers requests for time off work for religion or belief reasons on a regular basis, such as to avoid working on Sundays (for Christians) or to allow prayers to be said on Fridays (for Muslims). It also covers time off work for infrequent occasions, such as religion or belief festivals or one-off requests, such as time off work for pilgrimages.
  • Adapting work duties: Employers may be asked to adapt work duties to allow employees to avoid contact with alcohol and/or meat at work for religion or belief reasons.

The EHRC advises employers that they do not have to comply with such requests on all occasions. However, they are encouraged to consider them seriously. Employers should review work place policies and practices to ensure that they don't unjustifiably discriminate against an employee who requests a change due to a particular belief.

Employers are encouraged to consider how they would respond were such a situation to arise in the future.They should not make assumptions about the significance of a religion or belief, or disregard a request because it is made by only one employee. They need to recognise that employees who may share the same religion may not share the same beliefs or practices.

The EHRC suggests employers try from the start to consider how to accommodate a request unless there are cogent or compelling reasons not to do so whilst assessing the impact of the change on other employees, the operation of the business and other factors outlined below. However, an employer is entitled to seek to balance the religion or belief needs of an employee with the legitimate needs of the business and the interests of others. In general, the fact that someone else might not share a religion or belief or be opposed to it does not mean that the employee should automatically be barred from having their request granted.

Genuine factors which may be considered in reaching balanced and reasonable judgements include:

  • the cost, disruption and wider impact on business or work if the request is accommodated
  • whether there are health and safety implications for the proposed change
  • the disadvantage to the affected employee if the request is refused
  • the impact of any change on other employees, including on those who have a different religion or belief, or no religion or belief
  • the impact of any change on customers or service users, and
  • whether work policies and practices to ensure uniformity and consistency are justifiable.

The EHRC is keen to stress that in many cases, employers and employees may well be able to find solutions to managing religious issues in the workplace and asserts that, generally speaking, it is better to try to achieve an amicable solution than to pursue litigation.

With regard to the difficult area of conscientious objection and the possible desire of some religious employees to opt out of the performance of some of their duties on grounds of conscience, the EHRC affirms that this is explicitly permitted by law only in certain specific situations, for example medical staff can opt out of performing abortions, or carrying out embryo research or fertility treatment. They are at pains to point out that the Strasbourg decisions mean that when someone is providing a public service, they cannot, because of their religion or belief, discriminate unlawfully against customers or service users.

The EHRC advises employers in such circumstances that whilst they should carefully consider the circumstances of every request from an employee to opt out of part of their duties, it is not a requirement either to accept or reject such a request automatically. The Commission recognises that some employers do allow employees to opt out of part of their jobs to accommodate religion or belief objections in certain circumstances, especially where other employees can cover for the employee making the request so it does not affect the effectiveness of the organisation or the provision of the service to the public.

The EHRC guidance in full, together with their legal explanations of the Strasbourg judgements may be found in a guide for employers and explanation document.