In this article...

• The background
• The facts
• The decision
• Religious discrimination in the headlines
• What does this mean for me?

The background

The Employment Equality (Religion or Belief) Regulations (“the Regulations”) were introduced in December 2003 and prohibit discrimination on the grounds of religion or belief. In April 2007 they were amended to clarify that it is unlawful to discriminate on the grounds of the religion or belief of ‘any other person’, so that the Regulations now also prohibit discrimination which arises from a religion or belief held by a third party.

An employer will have a defence to a claim under the Regulations if it shows that there is a Genuine Occupational Requirement (“GOR”) for the worker to hold a particular religion or belief. The defence takes one of two forms: a general requirement that the religion or belief is necessary due to the nature or context of the employment; or a more specific provision, which is effectively a defence for religious organisations, where the employer has an ethos that is based on a religion or belief.

Whichever defence is invoked, the employer must demonstrate that the GOR:

		is proportionate to the requirement in a particular case; and
		either the person to whom the requirement applies does not meet it;
		or the employer is not satisfied that the person meets it,
		and it is reasonable for them not to be satisfied.

The facts

In Sheridan v Prospects for People with Learning Disabilities (unreported), Mr Sheridan worked as a service manager for Prospects for People with Learning Disabilities (“Prospects”), a charitable organisation which operates under the auspices of the Christian faith.

Although it originally employed only Christians, Prospects had found it increasingly necessary to recruit non-Christian staff to junior (level 1 and 2) roles. Although employees had originally been instructed to commit to a ‘Basis of Faith’, non-Christian workers were permitted to be exempt from this requirement. Following the introduction of the Regulations in 2003, Prospects decided to introduce a GOR qualification so that only Christians would be eligible for recruitment and promotion to level 1 and 2 roles within the organisation. Existing non-Christian level 1 employees would not be dismissed, but they were informed that they would not be eligible for promotion.

Mr Sheridan raised various concerns about this policy, and when it became clear that Prospects would not alter its GOR policy, Mr Sheridan submitted his resignation. He subsequently brought a claim for religious discrimination and constructive unfair dismissal.

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The decision

The tribunal found that Prospects had discriminated against Mr Sheridan on the grounds of his religion or belief, and upheld his claim for constructive unfair dismissal. It did so, firstly, by confirming that the Regulations did, at the relevant time, protect against discrimination on grounds of the religion or belief of a third party. The tribunal went on to find that Prospects could not successfully invoke the GOR defence and, as a result of the subsequent discrimination, Mr Sheridan was able to show that Prospects had fundamentally breached his contract

In coming to the finding of discrimination, the tribunal was persuaded that, although it was not a strict requirement that all employees subscribe to the Basis of Faith, this would have been a proportionate means of maintaining Prospect’s Christian ethos. It was also not clear why, if this was the objective, certain posts, such as gardener and cook, were exempt from the GOR. It would, therefore, have been rational to require all level 1 and 2 workers be sympathetic to the Christian faith. In the absence of such a requirement, and without having undertaken a job evaluation for every vacant post, the Respondent’s approach was ‘fundamentally flawed’.

Religious discrimination in the headlines

You may also have read about Lillian Ladele, a civil registrar employed by Islington council, who recently made headlines after refusing to officiate at civil partnership ceremonies, citing her refusal as ‘a matter of religious conscience’. Ms Ladele has brought a claim against her employer for religious discrimination and victimisation. The case is currently being heard in the Employment Tribunal, and we will report further when it has been decided.

What does this mean for me?

		Sheridan is a first instance decision, so could be subject to appeal and is not a binding authority.
		It does, however, indicate that tribunals will be willing to look closely at a GOR qualification and the nature and context of the employment in question. Accordingly, should an employer wish to rely on a GOR defence, it will be necessary to consider:
		(i)	whether the GOR can be justified in respect of each role, as a blanket policy will not be accepted; and
		(ii)	whether it is proportionate to the objective sought – this will entail an evaluation of whether the measure imposed by the GOR qualification is a rational means of pursuing the overall objective of the policy.
		Sheridan indicates that employers may be able to successfully defend religious discrimination claims if the GOR is reflected by a particular requirement.
		Although undecided, Ms Ladele’s case, and the accompanying attention it has received, serves as a reminder that concerns raised by employees on the grounds of religion or belief should always be handled sensitively, in line with your internal policies and procedures and in line with the statutory dispute resolution procedures.