HR professionals are understandably wary of managers using their own discretion when dealing with the outward signs of employees’ religious beliefs, fearing allegations of discrimination. Often employers argue for zero tolerance, saying that giving an inch sets a precedent that makes it difficult to enforce restrictions for more flagrant breaches of policy.
Balance
The law requires employers to treat employees consistently on the one hand, while being responsive to the needs of individual employees on the other. This is a difficult balancing act, particularly around employees’ expression of religious beliefs.
But equality is not always treating people the same: it is about reducing disadvantage. And employers could find themselves in the future having to make adjustments to policy requirements for religious beliefs in the same way they currently alter working practices to accommodate disabled employees.
No compromise
Using discretion could have avoided some of the harsher employer decisions recently in this area. Colin Atkinson, a Christian van driver for a housing association, was disciplined for placing a small palm cross on the dashboard of his company van. Whether it was necessary to apply the employer’s policy so strictly is questionable.
Religious necessity
British Airways told Nadia Eweida that wearing a crucifix contravened its uniform policy. She lost her discrimination case in the UK courts because wearing a visible cross is not a requirement of her religion so, technically, asking her to remove it did not disadvantage her. The employer’s defence cleverly bypassed arguments about whether it was justified in taking such a hard-line approach. She is now taking the issue to the European Court of Human Rights (ECHR).
Crossing the line
A local authority took disciplinary action against social worker Naphtali Chondol when he gave a community mental health service user a Bible and attempted to promote his own religious beliefs. The Employment Appeal Tribunal upheld the employer’s approach.
Checklist
Hitherto, tribunals have upheld employers’ blanket bans on religious expression at work so, for the time being, employers should:
- formulate a policy around what restrictions are necessary, and record the business need behind the rules
- focus on displays of beliefs at work, rather than the beliefs themselves
- decide what flexibility can be offered if restrictions are essential, and exercise that flexibility before disciplining an employee for breaching the policy
- keep a note of actions taken and the reason for taking them, particularly when rejecting an alternative approach.
