Two recent cases, both involving nursery workers, provide illustrations of how to deal with everyday incidents of potential discrimination in this difficult area.
The Muslim nursery worker: Ms Begum was a Muslim nursery worker who was offered a job but claimed to have been told during the job interview that she could not wear her full length jilbab at work because it would be a tripping hazard. Ms Begum refused the job and brought a claim for indirect discrimination on grounds of religion or belief. She lost in both the Tribunal and the EAT. The Tribunal did not accept that the nursery had applied a provision, criterion or practice (PCP) at all – there had merely been a discussion about not wearing full length clothes. The EAT agreed and added that, even if the nursery had applied a discriminatory PCP, it would have been justified on health and safety grounds.
The Christian nursery worker: Ms Mbuyi, a practising Christian, was dismissed for gross misconduct by a nursery following a conversation with a lesbian colleague in the course of which she stated that she believed that God did not approve of homosexuality. The evidence was that the colleague had in fact initiated the discussion about religion and homosexuality. Ms Mbuyi’s dismissal was found to constitute direct and indirect discrimination on grounds of religion or belief. The Tribunal found that the nursery had based its decision to dismiss on stereotypical views of Christian beliefs and would not have treated a non-religious employee in the same way. By disciplining Ms Mbuyi for her remarks, it had also applied an unjustified PCP (in the form of a ban on expressing views hostile to homosexuality).
Some lessons to learn?
- Avoid taking positions during interviews on matters that could relate to religion or belief – deal with them separately, by email perhaps, to give yourself time to think things through and reduce the scope for misinterpretation.
- Managing the conflicting beliefs of employees involves applying a degree of tolerance and finding a reasonable balance – avoid being seen to come down on one side or the other without very good reason.
- As between employees, the limits of freedom of expression at work about matters of religion or belief are usually only reached when discrimination occurs (e.g. in the form of harassment), at which point you may be entitled to take disciplinary action.
- As in other areas, it is wise to have a written policy that reflects the protection of religion or belief and perhaps gives some examples of unacceptable behaviour.
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