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Possible Indirect Religious Discrimination

17 Jan 2020

Employer’s Question

When conducting annual employer appraisals, we not only appraise individual employees’ performance set against targets, but also consider placing weight on matters such as being an effective team member, showing personal initiative and demonstrating leadership skills. The appraisal is conducted by an external company at an outward bound activity centre.

The aim is to effectively plan career progression for employees and to have early notice of potential top performers.  The appraisal process needs to be completed  before our management training courses start in June of each year. 

This year, the only date that is convenient to everyone coincides with the beginning of Ramadan and one of our devout Muslim employees has expressed concerns that he will not perform to the best of his ability because he will be fasting. Taking all of this into consideration, can we proceed with the appraisals?

Answer

Discrimination on the grounds of religion or belief is unlawful. Direct discrimination is where an employee is treated less favourably than others because of religion or belief; indirect discrimination is where the employer applies a provision criterion or practice (PCP) that disadvantages employees of a particular religion or belief without objective justification. The question raises a potential claim for indirect discrimination and how the employer may attempt to justify the provision criterion or practice by showing it to be a proportionate means of achieving a legitimate aim.

There are several  Tribunal decisions about individual employees’ religious days. In one case, a Jewish job applicant was rejected because she was unable to work on a Saturday. The Tribunal found that the employer’s requirement for employees to work on a Saturday was a PCP which indirectly discriminated against the applicant because of her religious belief and was not justified. The Tribunal accepted that the needs of the business to provide a service to its customers was a legitimate aim. However, the employer’s policy was not a proportionate means of achieving that aim. In particular, the employer did not give sufficient consideration to the applicant’s situation and how she could be accommodated within the organisation for example, by considering a rostering system.

However, in another case, a Seventh Day Adventist was required to work periodically on Saturdays contrary to her religious belief. There, the Tribunal considered the requirement was justified in that there was a compelling business need reflected in the interests of the business. If the employer made an exception for the employee, this would have destabilised the Saturday working arrangements and had a “profound effect” on the business.

Applying those criteria to the question asked, it is clear that conducting annual employee appraisals is an important business need and that the way the appraisal system was being conducted was a proportionate means of achieving a legitimate aim. The period within which the appraisals needed to be completed was also a legitimate aim. Whilst the Muslim employee was clearly at a disadvantage because of their fasting and no allowance could be made for this because the employer could not make a comparison with their non fasting performance, proceeding with the appraisal was  unlikely to be discriminatory.

The situation would be different if a particular date would have been convenient to conduct the appraisals outside of Ramadan but was not selected. 

If you would like to discuss the issues raised in the above article further, please contact Alan Finlay by phone or by email. 

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