10 January 2014 #Employment
An employee’s beliefs may or may not be known to an employer but issues can arise if these beliefs are manifested in the workplace.
Does the law clearly distinguish between the protection it gives for holding a belief and the level of protection for how this belief is manifested? No, according to the Employment Appeal Tribunal in the recent case of Grace v Places for Children.
In Grace the Claimant, a day care nursery manager, stated that she had been dismissed due to her faith but her employer stated she had discussed her faith with colleagues in a way that they believed had had an adverse effect on the well being of staff. The Employment Tribunal dismissed her claim of discrimination on grounds of religion, but their reason for this decision gave rise to this appeal.
The Tribunal had stated:
“We conclude however, as did the tribunal in the case of Chondol, that the Claimant in this matter was not treated as she was because of her religion, but rather because of the way in which she manifested or shared it.”
The case referred to Chondol v Liverpool CC, involved a social worker who had “improperly foisted” his Christian beliefs on service users. Grace appealed on the grounds that her case was distinguishable from Chondol so the Tribunal should not have relied on it.
The Employment Appeal Tribunal though makes it very clear that we should not distinguish between holding a belief and how it manifests. The EAT reminds us that Tribunals must take into account the Code of Practice 2011 issued by the Equality and Human Rights Commission which states:
“There is not always a clear line between holding a religion or belief and the manifestation of that religion or belief. Placing limitations on a person’s right to manifest their religion or belief may amount to unlawful discrimination;”
The EAT did not dispute the findings of the original Tribunal in Grace as they did not accept that their judgement separated belief and manifestation. What is key is the phrase “of the way in which she manifested or shared it”. The EAT accepted that the facts of this case are distinguishable from Chondol but in this type of case the facts will always most likely differ but the legal principle is the same.
It is hard to see that it would be justifiable for an employee to suffer a detriment (such as dismissal in the case of Grace) for a religious belief that manifests itself in a way that does not interfere with their work. The problem arises if the way the employee acts on these beliefs causes a genuine problem for their employer. Examples from recent cases are refusal to work on a Sunday or the wearing of a cross in contravention of a uniform policy.
In this case, the EAT rejected that there is a difference between belief and manifestation but rather reminds employees and employers that although an individual’s beliefs are protected in law, unacceptable conduct in the workplace is not protected even if it is a manifestation of their belief.
Carillion Advice Services