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a heavy cross to bear

1 June 2013

Employment law is one of the most regulated areas of UK life so why has there been a significant rise in the number of claims of religious discrimination against employers? Ray Silverstein, Partner and head of the London employment team at Browne Jacobson LLP, explores the reasons behind this worrying trend.

The number of discrimination claims presented to the Employment Tribunals increased by 51.7 percent in the last six years, according to the Ministry of Justice. The official statistics also show that in 2011/12 the average amount of compensation awarded by the Tribunals exceeded £16,000 per claimant.

The statistics pose a fundamental question; why are more claims of religious discrimination being presented? Are individuals feeling more discriminated against in the workplace? Are employers not learning the lessons of the past notwithstanding the substantial costs and reputational damage that can result from a claim?

From my experience as an employment solicitor it seems that several factors may provide some answers. One factor that could help explain the phenomena appears to be that the workforce is increasingly better informed and vociferous about their employment protection rights, in particular in these tough economic times when an aggrieved individual is less likely to walk straight into another job. Secondly, these types of claims often receive a great deal of publicity in the media which, inevitably, encourages a relatively small number of people with spurious claims to act opportunistically especially as the coverage often refers to enormous payouts.

However, these factors do not appear to adequately explain the increase in claims given that religious discrimination is a comparatively new and relatively untested protected characteristic. Many potential claimants still feel more comfortable with more familiar concepts like discrimination on the grounds of race, sex and disability. Something else is going on.

What the something could be strikes me as being too much uncertainty in this area of the law. Uncertainty is the enemy of employers, employees, their advisers and those who judge claims. Two recent real life examples illustrate the difficulties. In one case an employee presented a claim on the basis that his employer had refused to permit him to take unpaid leave to assist his family following the death of his father. The employee said that a core component of his religious belief required him, the eldest son, to perform these duties. The second example arose from an employer benefit which allows employees to obtain company discount for "his or her significant other". An employee requested a second discount because, as permitted by his religious belief, he had two wives.

In each case the employer had a well developed HR resource but considered that the law offered them little guidance on what to do. In a climate of uncertainty there is a risk that liberties may be taken unwittingly or otherwise by some employers and some employees. Valid issues may also be put aside rather than risk litigation. Providing employers and employees with clear and balanced guidance on how to approach issues of religious practice at work is part of the very nuts and bolts of shaping a more pluralistic, tolerant and just democratic society. This is not simply a matter of legal niceties.

The recent decision of the European Court of Human Rights in relation to four cases brought by Christians removed some of the "fog" that is bedevilling this corner of the law. For example, thankfully, its now known know that it is not for the employer or the state to assess the legitimacy of religious belief or the ways in which those beliefs are expressed. However, a useful opportunity to provide clarity and fairness was missed.

It is regrettable that one of the claimants who lost her case, Ms Ladele, had, according to the Employment Tribunal, suffered intolerable harassment from her colleagues, yet was afforded no protection by the justice system.

A reasonable accommodation test, based on the US model, that requires the employer to retain employees who have strong religious beliefs, so long as their practices do not detrimentally affect service provision or the employer in general, would be a significant improvement. The concept of reasonable adjustments is akin to such a test and is well understood under domestic disability discrimination law. Having to consider making a reasonable accommodation would encourage greater tolerance of those with religious beliefs which is consistent with a democratic society. Perhaps, over time, the approach would reduce claim levels. As was noted in Ladele, other authorities had accommodated employees with beliefs similar to hers. By doing so they saved themselves a trip to Strasbourg.

This article was first published in HR Director

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