A recent consultation conducted by the Equality and Human Rights Commission (EHRC) found widespread confusion and misunderstanding about the laws protecting freedom of religion or belief. The consultation followed the publication of EHRC guidance on freedom of expression, after the allegedly religiously motivated attack on the Charlie Hebdo offices in Paris, to address muddle and misunderstanding about the law. The information provides a realistic snapshot of religion and belief issues in today’s workplace, which in turn highlights areas of concern that HR need to consider, not least of which is that diversity appears to be slipping off of HR’s radar.

EHRC Call for Evidence

Background:

Nearly 2,500 people responded to a call for evidence from the EHRC to find out what people experience following extensive media and public debate about how people are able to express their religious and other beliefs. That often included how to deal with the right to express beliefs which others might view as offensive.

The findings of the consultation were set out in a report, ‘Religion or belief in the workplace and service delivery' which found widespread public confusion and misunderstanding about the laws protecting freedom of religion or belief. The information will form the basis for an EHRC report on the adequacy of the laws protecting religion or belief as well as guidance for employers and people who provide services to the public.

Key findings:

Key findings in the report included:

– Some employees felt they were under pressure to keep their religion hidden at work and felt discriminated against when it came to wearing religious symbols or expressing their beliefs.

– People reported being mocked for their beliefs including Christians, who said their colleagues assumed they were bigoted.

– Jewish and Muslim participants said they found it hard to get time off work, even as part of their normal annual leave, for religious observance.

– Some alleged that they were excluded from meetings, or passed over for promotion or recruitment due to their beliefs and felt unable to raise the issue for fear of repercussions.

– Humanists and atheists reported that they experienced unwanted religious proselytising at work.

– Some employers and employees reported no or few issues relating to religion or belief in their workplace, particularly where inclusive work environments had been created which were supportive of religion or belief.

The widespread confusion about the law is creating some resentment and tensions between groups.

50% of the responses on the adequacy of current legislation felt that the law should provide greater protection for those with a religion or belief.

Anxiety for employers who fear falling foul of what they see as complicated equality and human rights legislation.

Specific examples of problems experienced:

The report also provides some real-life examples of problems being experienced in the workplace:

– “The wearing or ‘showing of’ a crucifix, rosary or any other Catholic jewellery was forbidden, yet nose rings, tongue piercings and tattoos were ok.” (Catholic participant)

– “When I organised a Christmas party a couple of employees objected on the basis that the use of the word Christmas would promote a religious belief. We had to agree upon 'an End of Year Party/Christmas Party according to your beliefs'. I was offended but the boundaries have become unclear.” (Manager in a Law Firm)

– “You cannot limit the employment opportunities for those actively practising a religion… It seems unfair, if not hypocritical. A balance of mutual respect must be found.”  (Middle Manager, Public Health Sector)

Given the findings, it is hardly surprising that Mark Hammond, CEO of the Equality and Human Rights Commission, said: “How the law deals with religion and other beliefs in work, in providing services and in public debate has become a matter of considerable controversy”.

Addressing the issues:

The EHRC’s commitment to developing guidance which will help everyone address some of the issues which have come out of the consultation is obviously very welcome. However, the reality is that the ‘issues’ are impacting on the workplace now and maybe having a negative impact, meaning that HR professionals may wish to start thinking about how they can be addressed. As well as addressing the findings set out above, employers may also want to take account of the specific areas of concern highlighted by the report

Increased resentment: Non-religious staff were resentful when they believed that religious colleagues received more favourable treatment in relation to time off and time away from work and/or where religious colleagues used spaces (e.g. meeting rooms) that were not meant solely for religious purposes.

Difficulties in discussing problems: Some employers and managers felt that it was difficult to discuss religious beliefs and observances with some staff in a reasonable way without them making a complaint.

Expression of religious views or discrimination: There was a great deal of concern about how to strike the right balance between the expression of religious views and the right for other employees to be free from discrimination or harassment. Some religious participants took the freedom to express religious views to be an absolute right even though this is not the case under the European Convention on Human Rights.

Protection of employees from harassment and discrimination. Some employers wanted to know how they should deal with religion or belief harassment, unwelcome proselytising and discrimination against their staff and by one employee towards another. This was especially the case when discriminatory views were expressed about women and LGBT staff.

Freedom of Expression:

The finding in the EHRC consultation that employers fear falling foul of what they see as complicated equality and human rights legislation highlights the human rights aspect in the religion and belief legislative landscape. Article 9 of the European Convention on Human Rights provides for freedom of thought, conscience and religion and Article 10 gives the right to freedom of expression. Both rights really came to the public’s attention with the attack on the Charlie Hebdo magazine’s office in Paris.

The magazine publishes material that mocks various religious and other groups. Hatred for the publication’s cartoons, which made jokes about Islamic leaders as well as the Prophet Muhammad, is considered to be the principal motive for the murder of 12 staff members. The massacre was described as an assault on the freedom of expression and because of the intense debate that followed, the EHRC published Freedom of Expression Guidance commenting on the importance of freedom of expression in our society and emphasising that the “guidance aims to address any muddle and misunderstanding about the law”.

The EHRC guidance needs to be taken into account when dealing with issues in the workplace and when making it clear to employees what standards are expected and where the boundaries lie. This is particularly relevant now, as it dovetails with many of the issues highlighted by the EHRC consultation and particularly the great deal of concern about how to strike the right balance between the expression of religious views and the right for other employees to be free from discrimination or harassment. Within this context, the guidance makes two clear points:

– Freedom of expression does not protect statements that discriminate against or harass, or incite violence or hatred against, other persons and groups, particularly by reference to their race, religious belief, gender or sexual orientation

– The boundary between the expression of intolerant or offensive views and hate speech is not always an easy one to draw. However, a number of factors are likely to be relevant, including the intention of the person making the statement, the context in which they are making it, the intended audience, and the particular words used.

Is Diversity Still a Priority?

The EHRC survey shows that no or few issues were reported where inclusive work environments were supportive of religion or belief. Most organisations claim to embrace diversity which means being inclusive by recognising that each individual is unique and accepting and valuing individual differences. It is therefore puzzling that in organisations where diversity is supposedly a stated core value, the EHRC findings indicate that some employees feel under pressure to keep their religion hidden and others are being mocked for their beliefs. Is the reason that according to the latest research by the CIPD, HR professionals do not consider diversity to be a priority?

The CIPD ‘HR Outlook Winter 2014–15 – View of our Profession’ report, which asked 630 HR professionals questions about the current and future priorities for their HR team, shows that out of the 15 current priorities for HR functions, diversity came bottom with just 6% seeing it as important. Even more concerning is that as far as future priorities were concerned, diversity did not feature at all. This should be all the more worrying for UK organisations when extensive research across Europe and the UK has shown that the three drivers for creating a diverse culture play a major part in contributing to overall success:

1. ‘It makes business sense’: Having a diverse workforce and using the talents of workers to the full enables companies to maximise on investments, reach new markets and be more attractive to customers.

2. ‘It is the right thing to do’: Discrimination or harassment on the grounds of gender, race, religion, sexual orientation, age etc., is unacceptable in a modern-day workplace. People should not be scared of coming to work because of the fear of being subjected to unacceptable, humiliating and hostile behaviour.

3. ‘We have to do it’: An employer has a legal responsibility to ensure the workplace is free of discrimination and harassment. Unlimited compensation awards can be made if discrimination claims succeed and bad publicity can seriously damage an organisation's reputation. Furthermore, if all reasonable steps have been taken to prevent discrimination, employers will not be held liable in a successful tribunal claim.

Conclusion:

While the EHRC guidance is awaited, it is abundantly clear that employers are having to deal with workplace issues involving religion and belief within the framework of equality law and freedom of expression. In addition, employers need to think about some of the longer-term issues flagged up by the consultation to determine what can be done to prevent conflict and discrimination occurring. Taking legal advice is obviously one route and observing the EHRC’s guidance on freedom of expression is another. But perhaps one of the answers does not sit within the law at all. It may just be a simple case of putting diversity high up on the corporate agenda.

Further sources of information

EHRC Report: Religion or belief in the workplace and service delivery

http://www.equalityhumanrights.com/publication/religion-or-belief-call-evidence-findings

EHRC Guidance: Freedom of Expression

http://www.equalityhumanrights.com/publication/freedom-expression-legal-framework

CIPD Report: HR Outlook Winter 2014–15 – View of our Profession

http://www.cipd.co.uk/hr-resources/survey-reports/hr-outlook-winter-2014-15-views-profession.aspx