discrimination mutually exclusive? Katy Morton finds out.
In an ideal world, multiple religious beliefs are respected within the workplace. While this isn't enforceable by law, ensuring all employees are treated fairly and not discriminated against for the views they hold is. However, the best way to deal with religious conflicts and discrimination is not always clear-cut.
Take one recent case, that of Christian nursery worker Sarah Tshikuna-Mbuyi and employer Newpark Childcare, based in Shepherd's Bush, London. Ms Tshikuna-Mbuyi was sacked by the nursery after telling a colleague the Bible regarded her gay lifestyle as a sin. She made a claim to an employment tribunal, as she said her dismissal was a breach of European law on religious freedom.
Ms Tshikuna-Mbuyi's colleague had allegedly asked her whether God would approve of her civil partnership and allow her to marry in church. She responded, 'God does not condone the practice of homosexuality.' Following the conversation, Ms Tshikuna-Mbuyi was dismissed on the grounds that her comments breached equality policies and that she had harassed her colleague.
However, the tribunal ruled in Ms Tshikuna-Mbuyi's favour, finding little or no evidence to suggest she had forced her faith on her colleague. It concluded instead that she had not been treated fairly by her employer, which made the decision to sack her based on 'stereotypical assumptions' about her and her beliefs.
The tribunal added that the nursery's policy prohibiting employees from expressing adverse views on homosexuality and/or describing homosexuality as a sin would have a 'disparate impact' on Christians holding similar views on biblical teachings about practising homosexuality. It also found that the internal investigation by Newpark Childcare was hampered by the 'stereotypical assumption about evangelical Christians'.
The nursery's solicitor, Chloe Ricciardi of Ashfords, says the case illustrates how employers face a difficult task balancing competing interests in the workplace.
'Newpark Childcare took the action it did with the aim of promoting equality in its workplace, which has been found in previous cases to be a legitimate aim', she explains.
Will Stone, a solicitor from the Avon & Bristol Law Centre, who specialises in discrimination, says the case acts as a warning to employers not to jump to conclusions. 'Newpark Childcare was more concerned with discrimination against same-sex relationships than discriminating against Ms Tshikuna-Mbuyi on religious grounds. This is despite the fact that the claimant was not proselytising; she was answering a question posed by another member of staff', he says.
To illustrate the difference, Mr Stone points to the case of a care worker who handed out Bibles to colleagues and as a result was dismissed by his employer. The care worker took the case to an employment tribunal, but lost on the grounds that he was 'inappropriately promoting' his own religious beliefs. Mr Stone warns that nurseries could face similar discrimination charges to Newpark Childcare if owners have insufficient knowledge of the Equality Act 2010 (see box).
'Employers must make sure they investigate matters properly and listen to all sides if such a conflict arises. It is about tolerance and balance. They need to respect what people say and accept their beliefs are genuine', he explains.
Mr Stone refers to an incident at Jobcentre Plus in Southend in 2010, where a claimant won an apology after being escorted out of the premises for wearing a hood.
Chris Jarvis was asked by staff at the Jobcentre Plus branch to put down his hood. He refused as he said he was entitled to wear it because of his Jedi faith. He was then escorted off the premises by security guards.
However, he later received a written apology from Jobcentre Plus, saying that the Government agency 'embraces diversity and respects a customers' religion'.
Managing conflict
Cases of this sort might be unusual, but they come against a backdrop of widespread confusion about the laws protecting religion, according to the Equality and Human Rights Commission.
Many of those who responded to its public consultation on the issue were concerned about the right balance between the freedom to express religious views and the rights of others to be free from discrimination or harassment. Specific issues raised included conscientious objection over marriage of same-sex couples and how to protect employees from harassment and discrimination by religious staff.
'There will always be people who are prejudiced against the beliefs of others,' says Jacqui Mann, director of HR 4 Nurseries. 'That is why it is important that every nursery has an equal opportunities policy and a harassment and bullying policy.
'That way, employees understand what is acceptable and what will happen if they act in a discriminatory way towards another member of staff. It also protects the employer as they ensure the process will be dealt with in a fair way.'
If there is a conflict about religious belief between staff, she says, an employer has a duty to investigate, which can be through a grievance procedure or a more informal route, to see if the issues can be resolved.
Legal obligations
The Equality Act protects people against discrimination, but it does not require employers to provide time and facilities for religious or belief observance in the workplace.
However, Ms Mann recommends that childcare providers consider whether their policies indirectly discriminate against staff or particular religions or beliefs, and if so whether reasonable changes could be made.
'For example, employees may request access to an appropriate quiet place, or prayer room, to undertake their religious observance. In this instance, employers are not required to provide a prayer room, but if a quiet place is available, and allowing its use for prayer does not cause disruption to other workers or the business, it is good practice to agree to the request,' she explains.
If a nursery does not attempt to be reasonable, the result could be an indirect discrimination claim.
Ms Mann also advises nurseries to be as flexible as possible when it comes to granting staff time off to celebrate festivals and attend ceremonies, or allowing them to wear religious clothing and jewellery. However, she says employers should also take into account the impact on the business and other employees.
'In reaching any decision about dress, an employer should always base their decision on the impact of a garment on the employee's ability to do their job. If employers consider this, the decision will most likely be objective, fair and consistent,' she says.
It was the employer who was backed in a case from 2006, when a teaching assistant was dismissed for refusing to remove a religious veil when asked. The employment tribunal ruled in favour of the school, which argued that children should be able to see her face. But Kirklees Council, the local education authority, was ordered to pay her £1,100 for victimising her.
In such a tricky area as discrimination, managers should always consider seeking legal advice.
But that is not to say it will be clear cut from a legal perspective, as one court does not always agree with another. In another case, a member of British Airways crew took the airline to an employment tribunal after being asked to remove the crucifix from around her neck. The airline, whose policy is that no employee is allowed to wear jewellery, won the case in the UK, but lost when the case went to the European court.
WHAT THE LAW SAYS
Employees' religious beliefs are protected by the Equality Act 2010. Under the act, it is against the law to discriminate against anyone because of their age, race, religion, sex, sexual orientation, if they are transsexual, married or in a civil partnership, pregnant or disabled. These are known as 'protected characteristics'.
Discrimination includes, but is not limited to:
- direct discrimination - treating someone with a protected characteristic less favourably than others
- indirect discrimination - when a practice, policy or rule applied to everyone puts certain groups of people at a disadvantage
- harassment - unwanted behaviour linked to a protected characteristic that violates someone's dignity or creates an offensive environment for them
- victimisation - treating someone unfairly because they have complained about discrimination or harassment
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