UK: dismissal for improper proselytising not unfair

In Kuteh v Dartford and Gravesham NHS Trust the Court of Appeal has agreed that the human right to freedom of religion did not make it unfair for an employer to dismiss a nurse for improperly proselytising to patients and failing to follow a lawful management instruction to stop initiating conversations with patients about religion. The ruling mirrors previous case law establishing that inappropriate promotion of religious beliefs is not unlawful religious discrimination. There is a distinction between manifestation of religious belief and the inappropriate promotion of that belief.

Anna Henderson
Anna Henderson
Professional Support Consultant, London
+44 20 7466 2819

UK: no unlawful direct discrimination where treatment due to belief of discriminator rather than victim

It is unlawful direct discrimination on grounds of religious belief only if the unfavourable treatment of an employee is because of the employee’s belief or lack of belief, and not where the treatment is because of the discriminator’s belief (for example, that certain behaviour by any person is ‘wrong’), according to the EAT in Gan Menachem Hendon Ltd v De Groen.

A Jewish nursery teacher was dismissed by an orthodox Jewish nursery because it became known that she cohabited with her partner and she refused to lie about this in order to allow the nursery to reassure parents. On the facts the tribunal had found that this treatment was not due to her lack of belief, but rather due to the employer’s belief; it therefore could not be unlawful direct discrimination. The EAT did confirm, obiter, that the fact that a claimant and alleged discriminator are of the same religion does not prevent a claim where the less favourable treatment is due to a lack of belief on a point that the discriminator considers to be a tenet of that religion.

The claimant also lost her indirect discrimination claim as there was no ‘practice’ of requiring teachers to lie; the respondent’s suggestion that the claimant lie was simply an ad hoc measure . However, she did succeed in establishing that comments made about her needing to marry and have children were sex discrimination and harassment.

The case should be treated with some caution. It follows the ruling of the Supreme Court in Lee v Ashers Baking Co that discrimination law only prohibits treatment based on the victim’s belief and not the belief of the discriminator. However, that case concerned the provision of goods and services and some commentators have suggested that a different approach is required in the employment context based on a particular interpretation of the relevant EU Directive. Pending any ruling from a higher authority, tribunals will be bound by the EAT decision in Gan Menachem, but employers should be aware that it may well be possible to establish on the facts of a particular case that the reason for the treatment was actually the victim’s lack of holding the same belief as the discriminator, rather than the particular behaviour that lack of belief enables, or perhaps the holding by the victim of some connected belief such as it being wrong to lie. Employers should exercise caution if considering taking disciplinary action based on their own beliefs.

Anna Henderson
Anna Henderson
Professional Support Consultant, London
+44 20 7466 2819

UK: Supreme Court rules in the ‘gay cake’ case

In the much-publicised judgment in Lee v Ashers Baking Co Ltd, the Supreme Court has ruled that it was not unlawful direct discrimination on the grounds of sexual orientation for a bakery to refuse to bake a cake bearing the message “support gay marriage”.  The bakery’s refusal was because its Christian owners profoundly disagreed with the message and not because of the customer’s sexual orientation, as heterosexual customers requesting such a cake would also have been refused.  The Court rejected the argument that support for gay marriage was “indissociable” from sexual orientation (ie used as a proxy for the customer’s orientation), given that people of all orientations can and do support gay marriage. Continue reading

UK: ECJ rules dress code requiring neutral appearance may be lawful

The European Court of Justice has finally handed down its judgment in two cases involving employees dismissed for wearing an Islamic headscarf at work, Achbita and Bougnaiou.  The Advocate-General opinions in the cases took very different approaches as to whether dress codes should be classified as direct or indirect discrimination and as to the extent to which the employer's business interests could justify restricting an individual's freedom to display their religious identity.

Employers will welcome the ECJ's ruling that a dress code prohibiting visible signs of political, philosophical or religious belief in the workplace is to be viewed as potential indirect discrimination rather than direct discrimination.  The distinction is important as indirect discrimination can be lawful if it is objectively justified, ie it is an appropriate and necessary means of achieving a legitimate aim, whereas direct discrimination cannot be justified (except in very limited circumstances).

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Indonesia: Religious Holidays Allowance

Last year the Ministry of Manpower issued an important regulation regarding religious holiday allowances, in the form of Minister of Manpower Regulation No. 6 of 2016 (Regulation 6/2016). Regulation 6/2016 revoked and replaced the previous regulation governing the issue, which was issued in 1994.

Regulation 6/2016 expands the scope of the entitlement by reducing the service period threshold for the entitlement. Regulation 6/2016 also eliminates religious holiday allowance reliefs and adds sanctions for the late payment for religious holiday allowances.

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UK: New publications – marriage and civil partnership discrimination, religion in the workplace

The following new employment law-related resources have been published:

  • Acas has published workplace guidance on marriage and civil partnership discrimination.
  • The Equality and Human Rights Commission has published a report on whether the law on religion and belief is working, generally concluding that it is and so not recommending legislative reform. However, it concluded that the law is often misinterpreted by employers, and has therefore published guidance for employers.

UK: Conflicting opinions from EU Advocate-Generals on headscarf bans create uncertainty

Earlier in the year we reported the controversial opinion of the Advocate-General in Achbita v G4S Secure Solutions that a ban on all visible signs of religious, philosophical and political beliefs was not unlawful direct or indirect discrimination, as it was justified by the employer's corporate policy of neutrality (see here).

A second Advocate-General's Opinion in the case of Bougnaoui v Micropole Univers published in July takes a contrary view. The employee's dismissal for refusal to remove her hijab at work when in contact with clients was a dismissal for manifesting a religious belief, which the Advocate-General treated as direct discrimination rather than indirect. It did not fall within the EU Directive's genuine occupational requirement defence given that the employer's justification (of complying with a client request) was in essence financial, and financial loss cannot justify direct discrimination. The defence is only available where the requirement is absolutely necessary to undertake the job duties in question, and the Advocate-General found it hard to envisage any such circumstances other than health and safety requirements. This contrasts with the opinion in Achbita that an employer can in effect define neutrality of appearance as an essential requirement of the job duties.

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UK: Religious discrimination claims concerning dismissal for refusing to leave marriage and headscarf bans

Employers may be liable for indirect discrimination where particular treatment can be viewed as a consistent practice, even if it is applied only rarely.  Further, even where the treatment would cause distress to all employees, an employee can establish the particular disadvantage required in connection with a religious belief if that employee would suffer more due to their belief.

In Pendleton v Derbyshire County Council, the employer required the claimant to choose between her job and her marriage following the conviction of her husband for downloading indecent images of children.  This put her at a particular disadvantage given her Christian belief in the sanctity of marriage, meaning that she suffered more than others in a loving and committed relationship.  Although the employer's action was a response to highly unusual circumstances, its own evidence was that it would respond in the same way should the circumstances arise again, and this was sufficient to amount to a "practice" for indirect discrimination purposes.

Employers should also keep an eye out for the ECJ's ruling on two cases concerning a dress code prohibition on the wearing of headscarves. 

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