The EHRC has responded to the recent “crucifix cases” with some new guidance on religion or belief in the workplace.
This is a brave attempt to reduce into nine pages of large font print the infinitely varied factual issues which can arise where an employee seeks some accommodation from his employer for his religion or belief. In that hopeless objective the guidance predictably fails, but it does reiterate quite usefully the basic principles behind this factually and emotionally very complex area.
The underlying question is one of balance – how the employer draws the right line between the interests of the employee and those of the employer itself, other employees and its customers or clients. What this means in practice is that the employer will generally have to accommodate the request unless there is good reason not to, and that the employer will bear the burden of demonstrating that reason – not dissimilar, in effect, from the flexible working rules. Relevant considerations for the employer are stated to include any cost and disruption implicit in granting the request, any health and safety implications, the extent of the disadvantage to the employee if the request is rejected and the impact of the accommodation sought upon customers or other employees (including in particular those with different beliefs or no beliefs).
These considerations are not exhaustive but they will be a decent starting-point, whatever the nature of the employee’s request. This may be to manifest his religion in his clothing or appearance, to take time off for religious reasons or to be excused certain work duties. In each case, the Employment Tribunal will find it hard to get behind a reasoned written record of the employer’s thinking if the “adjustment” sought is rejected.
The guidance suggests that before the employer gets into the detail of whether a particular request can be granted, it is entitled to disregard claimed beliefs which are not “serious, genuinely and sincerely held and worthy of respect in a democratic society… compatible with human dignity and [not in] conflict with the fundamental rights of others”. We see on the News every day stories of acts committed in the name of religion which are not worthy of respect or compatible with human dignity and which very directly conflict with the fundamental rights of others, but the guidance sensibly warns that this a dangerous area to get into for employers. They are “not expected to be experts in religion or belief issues and should not spend too much time or expense examining the motivation or genuineness of a particular employee’s religion or belief … an employer should only question a belief in the most exceptional cases where, for example, it is very obscure, appears to be objectively unreasonable or the sincerity of the belief of an employee is genuinely in doubt”. Even then, the number of occasions when it will be safe to respond to the employee’s explanation of his faith with “Are you serious?” must be pretty limited. In addition, although the guidance suggests that the employer can “ignore” requests which it believes are not genuine, it would be far safer to be seen to consider them in the normal way and reject them on objective grounds if need be.
Of those nine pages, three are filled with examples of how employers might respond to particular requests. Most are relatively bland and obvious and (because it is the EHRC) resolved amicably. However, there is one which creates some hesitation:-
“At work, two employees begin to talk about environmental issues. During the conversation one employee states that, based on her deeply-held ecological beliefs, she believes that it is quite wrong for anyone to drive to work and that anyone who does this is irresponsible. Her colleague, who regularly drives to work, is offended by this comment and complains to her employer of harassment at work. The employer rejects the complaint, saying that the discussion was a reasonable expression of a philosophical belief in the workplace”.
If the two employees had been of different faiths and one had said that members of the other’s faith were “irresponsible”, would that not have sailed close to harassment? Much uninformed nonsense has been written recently about overtly religious people being a persecuted minority, but it is tempting to think on the basis of that example that religion will still carry a level of protection which “lesser” beliefs do not.