When does the law allow religious discrimination? 

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• A genuine occupational requirement
  
• Positive action
  
• Justifying indirect discrimination
  

A genuine occupational requirement

In very limited circumstances, an employer can claim that a certain religion or belief is necessary for a role. In other words, the religion or belief is considered to be a genuine occupational requirement. Similar exceptions apply to other grounds for discrimination, such as race and gender.

Example 1: Halal butcher

If a butcher has to prepare halal meat (meat that has been prepared in a way that is consistent with the Muslim faith), it might be justified to insist that this role is performed by a Muslim.

Example 2: Religious organisations

An organisation whose work is based on a specific religion or belief may be able to use this rule. A Catholic care home might be able to show that its carers should be Catholic because their work will involve them meeting a client’s spiritual needs. But they might not be able to make the same claim for their reception staff, who do not need to provide spiritual leadership or support the clients.

Applicants may not agree that such a rule is appropriate or fair for a particular job. If so, they can still claim they have been unlawfully discriminated against. The employer would need to be able to explain and justify the rule.

Positive action

The term ‘positive action’ refers to legal measures that are designed to counteract the effects of past discrimination and to help abolish stereotyping. Positive action can be taken to encourage people of a particular religion or belief to take advantage of opportunities for training or work experience schemes, or encourage them to apply for particular employment. It can only be done when a particular group has been identified as under-represented in a certain area of employment.

Positive action may include things like introducing fair selection procedures, training programmes or targeting job advertisements at a particular group. Positive action is not the same as positive discrimination, and does not involve treating particular groups more favourably when recruiting. Employers must make sure that employees are hired or promoted on merit alone. At the point when a candidate is selected, their religion or belief must not be taken into account.

Example

A local authority is concerned that, despite having a large local Muslim population, few Muslims apply for jobs that are advertised by the authority. When advertising for staff, the authority states that it encourages job applications from people with religious beliefs that are under-represented in their organisation. At the same time, the authority makes it clear that all job applications are treated strictly on merit. The authority also contacts local Muslim community representatives and organisations, asking them to encourage suitably qualified people to apply.

Justifying indirect discrimination

In some circumstances, indirect discrimination on grounds of religion or belief may be justifiable. But only if it is considered to be a proportionate means of achieving a legitimate aim.

For someone to justify indirect discrimination, they would need to show that there is a genuine business need for a policy that is a particular disadvantage to a certain religion or belief, and that there is no alternative to it.

These types of legally acceptable justifications apply only to indirect religious discrimination, and not to direct religious discrimination.

Example

A company requires its employees to work late on Friday afternoons to analyse stock prices in the American stock market. This is because global time changes mean that the prices arrive late in the day. In the winter months, some staff want to leave early in order to complete particular religious observances before nightfall. Employees offer to make up the time during the rest of the week. But the company cannot agree to this, as the American prices are vital to the business. So the requirement to work on Friday afternoon is not against the law.