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Chapter 5 - The Adviser's role General Issues and Questions This section covers: 1. The basics - what should advisers be aware of? 2. What are the limits of protection under religion, belief and non-belief? 3. General questions that an adviser may be asked. The basics - what should advisers be aware of? It should be noted that in many cases, the religion or (non) belief of either customers, employers or fellow advisers will not be a significant factor in careers advice. Even people with strong faiths may find that this does not impact overtly on their decisions or limit their choices of career. Within religious faiths there will also be a very wide spectrum of observance, custom and impact on behaviour, ranging from a vague feeling of belonging to a faith through to strict adherence to values, beliefs and behaviours that impact significantly on day to day work and leisure activities. A small study on the impact of faith on career decision making1 estimated that using a scale of 1 to 10, 71% of participants scored the importance of faith as 5 or higher and 18% regarded their career decisions as being ‘totally’ affected by their faith. However, advisers should not make assumptions about the significance of an expressed religion, as even within professed religions, there may be differences in beliefs and practices2. Advisers need to be aware of what the potential issues are with customers or colleagues who have strong faiths or beliefs, can handle them sensitively and give accurate advice, regardless of their own beliefs. The actual level of influence that a customer's belief or faith will have on their decisions, however, can only be established by personal contact and discussing the matter face to face. It can often help when talking with a customer about a potentially sensitive issue like religion and belief, to depersonalise the discussion so that it becomes, for example, a discussion about practicalities so that the customer does not feel that a judgement is being made. Being aware of potential issues and how best to provide advice and support is particularly important for the work of advisers as since April 2011, Section 149 of the Equality Act 2010 requires everyone delivering public contracts to work to take positive action to "eliminate prohibited conduct, advance equality of opportunity and foster good relations". These public sector equality duties cover eight protected characteristics including religion or belief3. However, there is a difference between religious beliefs (which are protected) and actions resulting from those beliefs (which are sometimes but not always necessarily protected, depending on the situation). It is these actions which managers and advisers need to manage and balance with other protected areas of the Equality Act. The Equality Act protects a range of characteristics, including religion, belief and non-belief. Under its principles, it aims where possible not to uphold the rights of one protected characteristic (e.g. 1 Hambly, L. 2009 Religion or Belief in the Workplace: A Guide for Employers Following Recent European Court of Human Rights Judgments (Equality & Human Rights Commission 2013) 3 Religion or Belief in the Workplace: An Explanation of Recent European Court of Human Rights Judgments Updated March 2014 http://www.equalityhumanrights.com/advice-and-guidance/guidance-for-employers/religion-or-belief-new-guidance-february-2013/ 2 freedom of religion) over the rights of another (such as gender or sexuality discrimination). This has the potential for problems when different protected characteristics, or even different faiths and beliefs conflict. The limits of this are still being tested in the courts. What are the limits of protection under religion, belief and non-belief? Everyone has protection under the Equality Act 2010 for their own actual or received faith or (non) beliefs. This covers: Direct discrimination (treating someone less favourably due to their beliefs) Indirect discrimination (where a policy or practice disadvantages someone of a particular belief) Harassment (creating an intimidating, offensive or degrading environment for an individual) Victimisation (unfair treatment of someone who has made a complaint). This protection now includes not only practices that are required by a particular religion or belief, but also anything "motivated, influenced or inspired by religion or belief, and which is sufficiently linked to the religion or belief will be protected, regardless of whether it is a mandatory requirement of the religion or belief"4. An example of this would be a Christian wanting to wear a cross, even though this is not a requirement of Christianity. However, there are exceptions, and no one can rely on absolute protection on any issue concerning their religious faith or non-religious beliefs, in particular where this conflicts with other legislation or protected characteristics (such as gender equality). All rights around religion or belief can be limited if they are "necessary in a democratic society in the interests of public safety, the protection of public order, health or morals, or the protection of the rights and freedoms of others"5. This mean that indirect discrimination based on religion or belief can be legal if this is a proportionate means of achieving a legitimate aim. Many situations are also unclear as they have not yet been tested in the courts. This includes several instances where the beliefs of one person conflict with the beliefs of another, or where adapting to the beliefs of one employee could affect the commercial health of the employing organisation. In these cases, all the adviser can do is talk about potential issues, and recommend (where possible) employers which have proved themselves more adaptable to incorporating a variety of working practices. 4 Religion or Belief in the Workplace: An Explanation of Recent European Court of Human Rights Judgments Updated March 2014 http://www.equalityhumanrights.com/advice-and-guidance/guidance-for-employers/religion-or-belief-new-guidance-february-2013/ 5 Religion or Belief in the Workplace: An Explanation of Recent European Court of Human Rights Judgments Updated March 2014 http://www.equalityhumanrights.com/advice-and-guidance/guidance-for-employers/religion-or-belief-new-guidance-february-2013/ General questions advisers may be asked Question Answer What are harassment and discriminatory behaviours? Individuals are protected at all times from harassment and discrimination based on their religion, belief or non-belief. However, they are not always protected in the way they manifest these beliefs, and this is an important distinction. Can an employer require or ban job applications from specific religions? Individuals promoting their particular religion or belief when at work: Anyone can discuss their personal beliefs but only if it can be done without causing harassment, imposing their views on others or otherwise abusing a position of power (e.g. a manager doing it to employees). Making jokes about a particular religion or belief: This is never protected and anyone can object to this as harassment or victimisation. Treating someone less favourably due to their (perceived) religion, belief or non belief: This is always protected e.g. not promoting someone when they have appropriate skills Treating someone differently due to their (perceived) religion, belief or non belief: This may be protected or not depending on other legislation, and whether the different treatment would have a negative impact on people not of that religion or belief. If a particular religion or belief is a requirement of a job, an employer can refuse to employ someone who does (or does not) possess that characteristic. However, employers cannot simply decide that they would prefer to employ someone with (or without) a particular religion or belief. They must show: The requirement is a proportionate means of achieving a legitimate aim It is an ‘occupational requirement’ i.e. crucial to the post and not merely one of several important factors It relates to the nature of the job in question, rather than the nature of the employing organisation. In addition to this occupational requirement exemption, employers with an ethos based on a religion or belief can limit some roles to those who share the beliefs of the organisation. How should an adviser, training provider or employer deal with requests around religious faith or belief? There is a difference between what is required by the Equality Act 2010, and what is good practice. For example, there is no requirement under the Act for employers to provide a prayer room or give practising individuals time off for religious observance, but it would be good practice to try to accommodate such requests where they are practical. In general, employers, training providers and advisers should look at what policies and practices they have that may cause problems, treat requests seriously, and permit the request unless there are good reasons to justify refusal. How can an adviser, training provider or employer be sure that their approach to a religion or belief request is justified? Employers, training providers and advisers are not required to comply with religious requests on all occasions. Finding the right answer is often about balancing competing considerations. This means that before a request is accepted or denied, the following things should be considered: Can employees opt out of some aspects of their job? The cost, disruption and wider impact on business or work If there are any health and safety implications If the person requesting the change will be disadvantaged if the request is refused The impact of any change on others (colleagues, customers or service users), including on those who have a different religion or belief, or no religion or belief If policies and practices to ensure uniformity and consistency are justifiable or whether different treatment is possible without breaking the law6. Many jobs contain elements that some people with particular faiths or beliefs may not want to perform. The law on this varies and often it is up to the individual employer what they will agree to. In some cases, opting out of particular things is permitted by law, for example medical staff can opt out of performing abortions or carrying out embryo research or fertility treatment. However, if someone is providing a public service, they cannot opt out of elements of that service because of their religion or belief, as this would discriminate unlawfully against customers or service users. There is no law that says an employer must either accept or reject a request automatically. Their decision is often down to commercial or health and safety reasons e.g. whether there are other employees who can cover for the employee making the request. Can individuals take time off for religious observance and prayer? 6 Individuals might request time off for religion or belief reasons, such as time off work on regular days with religious significance or requests for time off for festivals or pilgrimages. Examples of this include: Sundays (Christians), Saturdays for prayers (Jewish), pilgrimage to Mecca (Muslim), summer solstice festivals (Wicca, Druid etc). Religion or Belief in the Workplace: A Guide for Employers Following Recent European Court of Human Rights Judgments (Equality & Human Rights Commissions 2013). www.equalityhumanrights.com/advice-and-guidance/guidance-for-employers/religion-or-belief-new-guidance-february-2013/ In most cases this right would be protected if it meant that denying the time off would disadvantage certain groups in terms of training or employment (for example forcing all employees to work on a Saturday might disadvantage Jewish employees). However, the reality is that this does depend on other issues, in particular the commercial needs of an employer and what alternatives have been discussed. For example, allowing someone time off work would not be appropriate where it results in discrimination against employees or customers. It is also often not allowed if an employer can demonstrate that it would suffer commercial disadvantage by allowing time off (this is particularly the case with small employers who do not have sufficient staff to cover such absences). There is no specific requirement for anyone to provide prayer facilities either. However, it is good practice to provide such facilities if possible (provided it does not disrupt anyone's ability to do their job), although it is better to describe such rooms as "quiet rooms" to avoid discriminating against those without a belief. Employers need to consider carefully whether they are inadvertently discriminating indirectly. For example, if team meetings always take place on a Friday afternoon this may discriminate against some Jewish and Muslim staff for whom Friday afternoon has a particular religious significance. Time off for religious holidays should be sought well in advance, as although employers should consider requests sympathetically, they can refuse if it will affect the business.7 Are dietary requirements and fasting protected characteristics? Organisations are not required to provide food that complies with the dietary requirements of different faiths (for example there is no requirement to provide Halal food for Muslim employees or customers). However, it is good practice to ensure that all employees and customers are catered for. Many organisations do this by providing vegetarian food that most religions accept. An individual cannot legally refuse to provide services to customers based on their own religious beliefs. One example of this would be that a practising Muslim could not refuse to serve alcohol at a supermarket checkout. However, in recent cases (in December 2013), several supermarkets came up with different solutions and decisions on this issue. Marks and Spencer decided to allow Muslim employees to refuse to sell pork and alcohol at the till, whereas Sainsbury's decided it would not allow it, as there was no religious prescription on handling these items, 7 http://www.findlaw.co.uk/law/employment/discrimination/8504.html only on consuming them. Tesco and Asda said they would not put staff with these restrictions on the till.8 What are the issues around modesty and dress? Whereas religious or philosophical beliefs are protected, manifestations of that belief do not enjoy the same degree of protection. This includes things such as clothing, appearance and jewellery with a religious or belief meaning (for example wearing headscarves, turbans, kippahs (skull caps), having a beard, or wearing a cross, crucifix, kara (a Sikh steel bracelet) or Star of David). However, an employee who is forced to or prevented from wearing clothing which offends their religion or belief could claim indirect discrimination if the employer does not have a reasonable justification for the rule. In most cases the wearing of religious clothing or jewellery would be protected, but there are times when it is not. An Employment Tribunal ruling in August 2013 said that it was legal to ask about religious dress and jewellery in job interviews. It is also legal to require changes to religious dress to satisfy health and safety requirements. An example of this was in an interview for a job in a Montessori Day Nursery, an interviewer said she thought the applicant's jilbab was particularly long and could be a potential trip hazard, and asked if a shorter jilbab could be worn to work. This was found not to be discrimination as an alternative had been offered, and other Muslim women at the nursery did change into shorter jilbabs when at work. Other examples might include the need to wear protective headgear on a building site (this would override the requirement for religious head coverings that were incompatible with helmets, such as turbans) and hanging jewellery that could pose a hygiene or safety issue in medical or factory situations. Are there any other protected characteristics? Adapting work duties: In some cases conscientious objection is permitted (e.g. medical staff can opt out of performing fertility treatments). Refusing to provide a service to a customer: If someone is providing a public service, they cannot discriminate unlawfully against customers or service users because of their own religion or belief. An example of this would be a devout Christian refusing to serve same-sex couples because they disapprove of their behaviour. This is not legal. What about when a religious faith suggests a type of behaviour that impacts on another area of equality protection? It is possible that a person may claim that their religious faith requires them to behave in a way that may impact on the protection offered by other sections of the Equality Act. An example of this might be a man refusing to work in an equal way with a woman, or a person refusing to work with a transgender 8 http://www.telegraph.co.uk/finance/newsbysector/retailandconsumer/10532782/Muslim-staff-at-Marks-and-Spencer-can-refuse-to-sell-alcoholand-pork.html colleague due to their own religious convictions. In these cases, one protected characteristic is interfering with another one. Which would take precedence? The law says that where possible no protected characteristic should be perceived as more important than another, so it is often not possible to generalise. Where such issues have arisen, the courts tend to make decisions on a case-by-case basis, taking into account the context of the situation. It is therefore impossible to generalise, although a good starting point would be the simple practicalities of normal working life in the UK.