Introduction

In March 1999 the Fair Employment and Treatment (Northern Ireland) Order 1998) came into force in Northern Ireland, providing protection for workers from discrimination and harassment at work on grounds of religious belief or political opinion.

The legislation outlaws discrimination and harassment in large and small workplaces, in the private and public sectors. It covers all aspects of the employment relationship, including recruitment, pay, working conditions, training, promotion, dismissal and references.

It's against the law for an employer to discriminate against a worker because of their actual or perceived religious or philosophical beliefs or because of their association with someone with a particular religious or philosophical belief. It is also unlawful to discriminate against a worker because they are not religious or they have an absence of religious or philosophical beliefs.

Employers have an additional obligation not to discriminate against their workers because of their actual, supposed or absence of political opinion.

What is the definition of 'religious belief' and 'political opinion'?

The legislation defines 'religious belief' as any religion, religious belief or philosophical belief. There is no definitive list of recognised religions. To be recognised as a religion, there must be a clear structure and belief system, although if it is not recognised as a religion it may still be recognised as a philosophical belief.

The definition of 'political opinion' specifically excludes an opinion which consists of or includes approval or acceptance of the use of violence for political ends connected with the affairs of Northern Ireland, including the use of violence for the purpose of putting the public in fear.

Types of discrimination

Direct discrimination

This is where a worker is treated less favourably because of their religious belief or their political opinion, when compared with another worker (known as a 'comparator') of a different religious belief or political opinion, but who otherwise shares the same or similar (but not materially different) circumstances as the complaining worker.

The comparator's circumstances do not need to be identical (in terms of the type of job, job level, job experience and seniority, etc.), but must not be wholly dissimilar. If a suitable comparator cannot be found, then a 'hypothetical comparator' can be used instead, who would be deemed to have the same employment as the complaining worker (such as their title, role, level etc). A Fair Employment Tribunal has the power to decide the particular circumstances of a hypothetical comparator (such as their personality).

Direct discrimination also extends to protecting a worker if you treat them less favourably based on:

• Your perception of their religious belief or political opinion, regardless of whether or not the perception is correct. For example, you may refuse to promote an employee because you perceive him to belong to a particular religious group, but promote his colleague whose circumstances are similar, except that you do not have the same perception about their beliefs.
• The religious belief or political opinion of another person (also known as discrimination by association). For example, if you treat an employee less favourably because they live with someone who belongs to a particular religious group or you dismiss them for refusing to comply with your instructions that would require the employee to discriminate against someone because of their religion or beliefs,

You could be liable for direct discrimination even if you did not intend to discriminate against your employee.

There is, however, an exception whereby direct discrimination is allowed in circumstances where it is required in order to comply with another law, or a genuine occupational requirement. For example, a Roman Catholic school may be able to restrict applications for a scripture teacher to baptized Catholics.

Usually, the only available defence to a direct discrimination claim is proving that there was no discrimination.

Indirect discrimination

This is where you equally apply a formal or informal working practice, provision or criteria to all the workers in the workplace that puts a group of workers who share the same religious belief or political opinion at a particular disadvantage when compared with other workers, and a worker within that group actually suffers the particular disadvantage.

It does not matter whether or not this has been done intentionally.

For example, if you introduce a dress code which requires all workers to go bare headed, those who are Sikhs (and who have to wear turbans as part of their faith) would be discriminated against and would potentially have grounds for an indirect discrimination claim.

You can defend indirect discrimination claims by justifying the use of the unlawful practice, provisions or criteria, if you can show that its application is a proportionate means of achieving a legitimate aim.

Harassment

Harassment is unwanted conduct towards a worker by an employer or another worker because of that worker's religious belief or political opinion. This applies to any conduct that violates a worker's dignity or creates an intimidating, hostile, humiliating, degrading or offensive environment, even if it was not intended as such.

For example, if you make a remark about a worker's religion that your worker feels is hostile, you could be liable for harassment.

If it is reasonable that the unwanted conduct has had an intimidating or humiliating effect on the worker, then you may have a harassment claim made against you (even where the harassment was unintentional). A worker will not be protected if they are over sensitive and unreasonably take offence to an innocent comment.

Employers are liable for any acts of harassment undertaken by their employees in the course of their employment – whether they knew about it or not – if they fail to take reasonable steps to prevent it. 'In the course of employment' means 'done whilst at work' or 'done while 'in a workplace-related environment'. Employers can't defend a claim of harassment by showing that they did not authorise it or on the grounds that the actions were reasonable or warranted.

Victimisation

Victimisation happens when a worker is treated less favourably than another worker because:

• They have asserted their right not to be discriminated against on the grounds of their religious belief or political opinion by making a complaint
• They have given evidence or information in a complaint made by another worker regarding discrimination on grounds of religious belief or political opinion
• They have taken any other action under legislation relating to religious belief or political opinion discrimination
• They have alleged that you or another worker has contravened the legislation relating to religious belief or political opinion discrimination
• You know that they intended to do, or you suspect that they have done or intend to do, any of these things

For example, a worker might have grounds for a victimisation claim if they are prevented from going on training courses; subjected to unfair disciplinary action; or excluded from company social events because they took any of the above mentioned actions.

Employment practices and religion

Providing information

• A worker does not have to give you information about their religion. Any information that is provided should be treated as confidential.

Time off and facilities

• You do not have to provide time off and facilities for religious observance (e.g. a prayer room), but it is recommended that you should try to do so where possible.
• Organisations should consider carefully whether they are inadvertently discriminating indirectly. For example, if team meetings always take place on a Friday afternoon, this may discriminate against Jewish and Muslim staff, for whom Friday afternoon may have a particular religious significance. Employers will not escape liability in an Industrial Tribunal by showing that discrimination was inadvertent or accidental.

Religious holidays

• If your employees want time off for religious holidays, they should ask in advance (giving the prior notice required under the terms of their employment contract). You should consider their request sympathetically – but you can refuse if it will affect the business.

Clothing

• If your employees wear clothing or jewellery for religious reasons, you should make sure any work dress code doesn't discriminate against them.

Food

• Some religions don't allow its followers to eat certain foods. If a worker does not want to handle such food (for example, if they work in a supermarket and don't want to handle pork), then they should speak to you about it. It is recommended that you take reasonable steps to manage their request, provided it doesn't affect the business.

Religion and sexual orientation in the workplace

• Individual employees may have particular views on sexual orientation because of their beliefs. However, people shouldn't treat, for example, homosexual colleagues differently. In the workplace, everyone has the right to be treated with respect, no matter what their sexual orientation.

Positive action

Positive action occurs where you do something in favour of one group of employees and not the other. This will obviously result in discrimination against the other employees. Positive action is therefore only permitted under the anti-discrimination laws where certain exceptions apply. Positive action is lawful where employers provide the following to persons of a particular religion, belief or political opinion, to prevent or compensate for disadvantages linked to that religion, belief or political opinion, which such persons might suffer when doing the work:

• Access to facilities for training which would help equip them for the particular work;
• Encouragement to take advantage of access to opportunities for promotions or transfers.

This does not mean that you can discriminate in favour of the members of the group when it comes to choosing people to do the work or fill the posts, as that could be unlawful discrimination.

Positive action is not the same as 'positive discrimination', which is where members of a particular group who have a protected characteristic are treated more favourably regardless of their circumstances. Positive discrimination is unlawful.

Tribunal claims

If you dismiss an employee, or if an employee resigns because they claim that they have been discriminated against by you, then they may make a complaint of unfair dismissal to an Industrial Tribunal, or, for discrimination cases, at the Fair Employment Tribunal. In addition, they may also claim for damages on the grounds of discrimination which they will be able to do regardless of their length of service.

A complaint must be presented within three months from the date of the act complained of, unless the tribunal considers that it is fair and reasonable in the circumstances to hear the claim outside that period.

While there is a limit on the amount of compensation a tribunal can award for unfair dismissal, there is no limit in cases of unlawful discrimination.

Further information

You can get more information from the Labour Relations Agency (LRA), which offers free, confidential and impartial advice on all employment rights issues. You can call the LRA helpline. The Equality Commission for Northern Ireland can help with advice regarding discrimination and equal opportunities.