Employers Should Tread Carefully in the Religious Discrimination Minefield

Anti-religious discrimination law remains unclear following recent case law but it is clear that each case will turn on it own facts.  Requiring a Christian to work on Sunday is not discriminatory according to the Employment Appeal Tribunal but forbidding an employee to wear a cross around her neck was deemed discriminatory by the European Court of Human Rights.

Ms Mba was a carer who provided residential care to disabled children.  Due to understaffing of the home at which she worked she was put on the rota to work Sundays.  Ms Mba’s contract of employment expressly required her to work on Sundays despite her beliefs forbidding her to work on a Sunday.

In Mba v The Mayor & Burgesses of the London Borough of Merton, the EAT held that what should be considered in these circumstances is the discriminatory impact of a provision, criterion or practice (‘PCP’) in respect of a group (i.e. Christians in this case) taken as a whole.  The Tribunal could therefore consider whether or not the forbiddance to work Sundays was a core tenet of Christianity and how many people would be affected as a result.

Employers should be confident that when implementing a PCP it is not discriminatory, as the onus is on them to justify it.  However, it was stressed in this judgment that the circumstances of each case will be looked at and that this is not a ringing endorsement for all employers to require their employees to work when their beliefs may conflict.

Indeed, in the high profile case of Eweida and others v UK where a British Airways worker was told that she could not wear a cross around her neck at work, the ECtHR has ruled that she was discriminated against on grounds of her religion.  The key aspect in this case was that BA’s policy interfered with Mrs Eweida’s right to ‘manifest her religion’.  Employers need to be well aware of what their policies require and review them where necessary so that any restrictions on the right of religious expression is legitimate and proportionate (e.g. to comply with health and safety requirements).

For advice on the possible discriminatory implications of a PCP that you wish to implement please contact the Forbes Solicitors Employment Team or call on 01254 222399.

This entry was posted in Employment Law.

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