Female Muslim staff had found creative ways round the need to „scrub up‟
alongside male colleagues and the low cut of gowns worn in operating theatres.
They „scrubbed up‟ several minutes before their male colleagues and wore two gowns, one back and one front, and a surgeon‟s hood rather than a smaller cap to cover their head.
8.5 Guidance on religion or belief in the workplace
As noted in section 7.6, several interviewees proposed that the Equality and Human Rights Commission (EHRC) produce accessible, practice-based guidance that
„brings legislation to life‟ and reflects developing case law. The Acas/CIPD research quotes managers as saying there is a shortage of practical and evidence-based guidance about religion or belief and sexual orientation relative to other equality strands (Dickens et al., 2009: 52).
Existing guidance
Acas (2010) has produced guidance on putting the Equality Act 2010 into practice in relation to religion or belief, with good practice examples. It provides an overview of the law and guidance on commonly raised issues. It covers how employers might respond if an employee manifests their religion or belief „in a way that breaches your Equality Policy or other workplace policies‟. For example, „Employers are entitled to expect that employees will not discriminate against or harass colleagues and that they will deliver services to customers in a non-discriminatory manner‟ (Acas, 2010:
18).
220 For a full account of the consultation procedure, see Godwin (2011).
221 See „Fresh guidance on bare below the elbow‟, Nursing Times, 30 March 2010.
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Some large employers have produced guidance for decision-makers; for example, NHS Employers has produced guidance on dress codes and discrimination which draws heavily on the Azmi case.222 The Department of Health has also issued a practice guide on religion or belief (Department of Health, 2009). Other guides exist into the law in this area (for example, Chartered Institute of Personnel and
Development, 2003) but are outdated and/or do not provide practical examples.
As noted in section 7.6, some religion or belief groups expressed a preference for guidance which addresses the needs of their adherents. Some have produced such guidance. For example, the Muslim Council of Britain has produced a good practice guide for employers and employees on „Muslims in the workplace‟ (Muslim Council of Britain, 2005). It provides detailed guidance on, among other issues, how religion or belief intersects with other equality grounds; it notes, for example, that:
It is … fundamental that Muslim employers and employees understand that they have an obligation to respect the rights of other minority groups protected by equality laws, such as women, people of different sexual orientations and people of other or no religious affiliations, as well as minorities within the Islamic faith.
(Muslim Council of Britain, 2005: 22)
Other religion or belief groups have produced more general guidance in collaboration with others; for example, St Ethelburga‟s Centre for Reconciliation and Peace (2008) has produced guidance on the provision of prayer rooms and quiet spaces in the workplace.
Groups concerned with other equality strands have produced guidance which covers religion or belief; for example, Stonewall (Hunt, 2009) and Lifelong Learning UK (2010). Voluntary sector organisations have also done so; for example, the
Employers Network for Equality & Inclusion (of which the former Employers Forum on Belief is now part) offers bespoke guidance and thematic guides on a subscription basis.
Interviewees expressed different views on the adequacy of existing guidance. Some found the Acas (2010) guidance adequate to their needs, while others found it (and other sources) too general. These employers said that they researched issues in
222http://www.nhsemployers.org/EmploymentPolicyAndPractice/EqualityAndDiversity/Pages/D ressCodesAndDiscrimination.aspx.
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detail as they arose, seeking specific legal advice or general advice from religion or belief groups or organisations such as Stonewall.
Overall, our research suggests that existing sources of guidance are either not in a useful format or are not known about. A web-based source which gathered diverse sources in one place would be a useful first step that the EHRC could take (see also section 7.6). Further, existing sources tend to cover equality law alone; new guidance which integrated human rights and equality case law and principles might address the limitations of using the equality „lens‟ in isolation.
8.6 Conclusion
Studies of management experience of handling religion or belief in the workplace indicate a prevailing uncertainty about how to respond to instances where an employee‟s religious belief appears to conflict with others‟ protection from
discrimination on grounds of sexual orientation. However, evidence suggests that such instances are rare; they can be prevented or mitigated by the development of policies which integrate equality and human rights principles and are promoted as part of a tolerant and inclusive workplace culture. An anticipatory approach is preferable to a reactive one.
Some studies suggest that managers‟ uncertainty extends to the handling of religion or belief more generally, but this appears not to be uniform between different types and sizes of employer. Survey respondents from larger public sector employers expressed high levels of confidence about their knowledge and understanding and the policies and practices of their organisations.
A fear of litigation was viewed by interviewees as a barrier to principled decision-making; it tended to produce knee jerk decisions which may complicate the resolution of grievances. Managers also lamented the lack of certainty created by fact-specific and apparently contradictory legal judgments; however, interviewees and roundtable participants acknowledged that „blanket‟ rules create only an illusion of certainty and militate against dialogue and negotiation.
Participants advocated the integration of human rights and equality principles in the handling of religion or belief (and indeed all equality strands). It was noted that, used in isolation, the equality „lens‟ can produce a narrow focus on legal compliance based on single characteristics, while human rights principles encourage a more holistic focus on individual flourishing. Indeed, this research suggests that an approach based on freedom of religion or belief may be more satisfactory in the long term than one which is based principally on equality. This in turn creates a case for
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(re)educating decision-makers about human rights as a basis for decision-making about religion or belief in the workplace.
Some interviewees expressed a need for more accessible practice-based guidance on the handling of religion or belief. Equality specialists suggest that this should be based on principles emerging from case law as to the limited circumstances in which indirect discrimination may be justified, combined with steps which extend beyond strict legal requirements to establish „rules of thumb‟ for easily achievable, good practice. A web-based source which gathered existing sources in one place would be a valuable contribution to more confident and consistent management practice.
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