Focus on Employment| Irwin Mitchell | How far do schools have to go to accommodate the religious beliefs of their staff?

How far do schools have to go to accommodate the religious beliefs of their staff?

Religion and belief is a protected characteristic in the Equality Act 2010. This means that you cannot treat a member of staff (or job applicant) less favourably because of their religion or beliefs. In addition, you cannot put in place a requirement that disadvantages an individual because of their religion or beliefs, unless it is a ‘proportionate means of achieving a legitimate aim’.

However, this does not mean that you cannot make decisions that are essential for the smooth running of your school. Instead you need to think about the implications of those decisions and, if necessary, to reduce the negative impact that they might have.

1 : Do we have to allow an employee to take time off for religious festivals?

The Working Time Regulations (WTR) simply provide workers with the right to 5.6 weeks’ holiday per year (pro-rated for those who work part-time). There is no right to take religious holidays off. This issue should be addressed in your annual leave policy. Most schools require employees to take some of their leave at specific times and do not allow them to take holiday at other times. These requirements should be clearly stated and communicated to employees.

Most staff working in schools are required to take holiday outside of term time. Traditional term times provide that the Christian holidays of Christmas and Easter are taken as holiday. Other festivals are not always fixed in the calendar and many fall during term time. Such a policy may potentially disadvantage individuals who share non Christian beliefs.

To successfully argue that this is not indirect discrimination, schools must be able to demonstrate that the requirement to take holidays at fixed points in the academic year is justified and that there is no less onerous ways of delivering the same level of service by another (non discriminatory) means. This may be straightforward with regard to teaching staff and those who have direct contact with the children. However, other support staff may be able to undertake their duties at other times and schools should be able to accommodate these where possible.

Example:

A hair salon discouraged employees from taking leave on Saturdays as this was the busiest day of the week. When Yom Kippur fell on a Saturday and a Jewish employee’s request to leave was refused, this was found to be discriminatory. The employer should have considered alternatives to its holiday policy.

Advice:

  • You should follow the guidelines contained in your annual leave policy. If some holiday is allowed during term time, the policy should set out how holiday can be requested and how much notice is required.
  • Make sure that your policy sets out how requests will be allocated. It is always possible that a number of employees will request leave at the same time, and you will not be able to agree to all requests. Make it clear how you will decide who gets the leave in this situation.
  • You are not required to grant additional leave for employees wishing to celebrate religious festivals.

2 : Do employees have the right to take a prayer break?

The Equality Act does not say that employers must provide time and facilities for religious belief or observance in the workplace. The starting point is to consider whether you can accommodate the request, and if not, whether you have a good reason for refusing it.

Example:

A security guard requested leave to attend the local mosque for prayers each Friday. This was refused by the employer, because the requirement of the contract was that there was always a security guard present on the premises. The employer provided a prayer room, the opportunity to take Fridays off and to work on a Saturday or Sunday instead. The employee was unsuccessful in their claim of indirect discrimination.

In this case, the employer had acted reasonably. There was a good business reason to insist that the employee was present on the site because this was in line with the terms of the security contract. The employer also tried to find solutions, such as offering a place to pray and altering the days of work.

Advice:

  • If an employee requests a prayer break, start by considering how this could be achieved without disruption. All employees are entitled to a break of at least 20 minutes when they have worked for six hours. Could the timing of this break coincide with the time when the employee wants to pray?
  • If it is not possible to accommodate the request and you have a good reason for doing so, you can refuse it.
  • Employers are not required to enter into significant expenditure or make alterations to its premises to meet religious needs.

3 : Can employees refuse to carry out some of their duties, or refuse to teach certain subjects because of their religious beliefs?

There is scope for conflict between the protected characteristics of religion, belief and sexual orientation, since some religious groups have strong views on homosexuality. Plus some religions impose dietary restrictions and/or impose restrictions on what each sex can do which can impact on their ability to perform their duties.

Schools are under a duty to comply with the Equality Act. Although the content of the curriculum is expressly excluded from this, the way in which a school provides education is explicitly included.

Guidance provided by the Government uses this example to demonstrate a discriminatory practice: A teacher uses the fact that ‘The Taming of the Shrew’ is a set book to make derogatory generalisations about the inferiority of women, in a way which makes the girls in the class feel belittled. Or, in teaching ‘The Merchant of Venice’, he encourages the class to laugh at a Jewish pupil.

Example:

A Christian registrar who was dismissed because she refused to carry out civil partnership ceremonies failed in her claim for direct discrimination because her actions conflicted with its equality and diversity policy and they would have treated anyone else who refused to carry out their role in the same way.

Advice:

In deciding whether or not to accept an employee’s request to be excused certain duties on religious grounds, you should consider whether the duty itself clashes with the particular belief of the individual (and you may need to seek guidance on this) and then consider whether granting the request:

Will cause disruption to your school or adversely impact on your ability to teach subjects required under the curriculum.

  • Has any health and safety implications.
  • Will impact on the workload of other employees.
  • Will impact on the school ethos and values or on any aspects of the curriculum.
  • Consider agreeing a trial period to see if the arrangement works without difficulty. If you cannot accommodate the request, you should explain its reasons to the employee.

Do employees have the right to wear religious symbols at work?

If your school has a policy on dress (or provides a uniform for some of its staff), you should try and be flexible and reasonable concerning requests to wear religious clothing and items of jewellery.

Examples:

  • An instruction for a bilingual support worker to remove her veil (which covered everything apart from the worker’s eyes) was not indirectly discriminatory. The requirement to remove the veil ensured that the best quality education was provided as the children found it difficult to understand the support worker without this requirement being imposed.
  • A company policy which prevented its uniformed staff from wearing visible jewellery (other than that which was required by a religion) indirectly discriminated against a Christian worker who wore a discrete cross necklace. However, a similar policy in the context of a health care worker was not discriminatory because wearing jewellery was considered to be a health and safety risk to children or her (with children able to grab it).

Advice:

  • Consider if allowing the employee to display an item of jewellery or wear a form of dress will impact upon the employee’s ability to do their job. If it does, then refusing the request is likely to be justified.

Conclusion

Employees do not have an absolute right to practice their religion in the workplace or to take time off for religious adherence. Employers are required to balance their need to properly manage their business alongside the beliefs of certain members of their workforce. If particular beliefs can be accommodated, it is sensible to do so. All that is really required is for your school to act reasonably and treat requests appropriately.

It is also helpful to communicate with employees and involve them in the decision making process as much as possible – they may even be able to suggest a solution!