Last reviewed 5 April 2016
The issue of religion and how it sits and fits with health and safety requirements is a challenging one for employers and all those with health and safety responsibilities. Andrew Christodoulou investigates.
A change to the Employment Act in 2015 exempts turban-wearing Sikhs from any legal requirement to wear head protection in any workplace (previously this exemption applied only to construction sites). The exemption for turban-wearing members of the Sikh religion emphasises how religious beliefs and customs can sometimes appear to contradict the occupational health and safety requirements and standards that are in place to protect people in the workplace.
The Sikh exemption is, however, just one example of how religious beliefs and customs can sometimes impinge on health and safety. The Islamic observance of Ramadan and of Christians during Lent, requiring fasting, may potentially put people at risk while at work. For example, those fasting but also engaged in work that is physically demanding, or in hot or humid environments, may be at risk of heat exhaustion and fainting.
The wearing of religious headwear and dress may be inappropriate where an entanglement risk is present, eg at moving machinery. Also, those wearing religious “jewellery” such as crucifixes may find themselves in conflict with health and safety requirements in some workplaces (see Eweida and Chaplin v the United Kingdom (2013), where the European Court of Human Rights ruled on the right to wear a crucifix differently according to the circumstances).
It is worth remembering that some religions take a “fatalistic” approach to life where whatever happens is God’s will and human intervention is seen as irrelevant. This will require a focus on an organisation’s safety culture and training.
So, what does the law say? What issues need to be considered? What action should employers and others take? What are the potential outcomes?
What the law says
The need to protect people’s health and safety in the workplace is set out in the Health and Safety at Work, etc Act 1974 and its supporting regulations. They require employers and others to take care of people while they are at work. This involves employers performing risk assessments and managing the risks and control measures identified. There is no mention of religion or discrimination in the Act or regulations. The style of the legislation is mainly non-prescriptive and in that sense is flexible and can be adapted to suit a variety of circumstances.
The need to avoid discrimination is found in the Equality Act 2010. The Equality Act 2010 legally protects people from discrimination in the workplace and in wider society. It replaced previous anti-discrimination laws with a single Act and before the Act came into force there were several pieces of legislation to cover discrimination including:
Sex Discrimination Act 1975
Race Relations Act 1976
Disability Discrimination Act 1995.
The Equality Act 2010 prohibits indirect discrimination on the grounds of religion or belief (or lack of religion or belief). Indirect discrimination can occur when an employer unilaterally applies a provision, criterion or practice to its staff, which does or would put a person of a particular religion or belief (or lack thereof) at a particular disadvantage when compared with others who are not of the same religion or belief.
The Equality Act provides that those who believe they have suffered discrimination under the Act can seek redress, including compensation, at an employment tribunal. For example, in Begum v Pedagogy Auras UK Ltd t/a Barley Lane Montessori Day Nursery (2015) the claimant, who was an observant Muslim and wore a full-length jilbab, was offered an apprenticeship with the respondent. She claimed religious discrimination after allegedly being told that she could not wear a jilbab because the length was a potential tripping hazard, which resulted in her not accepting the post. She made a claim for discrimination and the employment tribunal dismissed the claim, saying that the instruction that she could not wear a jilbab applied equally to staff of all religions and if it did put some Muslim women at a particular disadvantage, any indirect discrimination was justified as being a proportionate means of achieving a legitimate aim, ie protecting the health and safety of staff (and children) at the nursery. The claimant appealed. The Employment Appeal Tribunal (EAT) dismissed the appeal. In this case the employer’s health and safety requirements to prevent tripping hazards were not seen as discriminatory.
The law of negligence has a role to play here too. Those injured at work can claim that their employer was negligent and, therefore, liable to pay compensation. However, it is interesting to note that Sikhs who choose not to wear head protection and are injured, are restricted as to the extent of a civil claim, (s.11(6) of the Employment Act 1989). Also, it is likely in civil claim cases that where any injury was due to the claimant following a particular religious belief or custom, contrary to the employer’s requirements and standards, that the claimant will be held to have been contributory negligent. That is, he or she has contributed to his or her own injury, in which case, the level of compensation may be reduced or denied.
How to deal with issue of religion in practice
Employers and those with health and safety responsibilities need to be mindful of the requirements of both the Equality Act 2010 and also health and safety legislation. The following action may give an approach when dealing with the issue of religion and its interaction with health and safety.
Obtain a clear understanding of the legal requirements for both equality and health and safety. Consult with health and safety advisors and consultants as necessary as well as HR specialists.
Ensure that recruitment and other HR procedures properly encompass any religious matters which may potentially adversely affect the standard of health and safety and put people at risk.
Ensure full and proper consultation with staff on religious issues and their effect on health and safety. Involve employee trade union safety representatives and other employee representatives.
Use risk assessment as a fundamental process to decide and justify whether any aspect of religious belief or custom is adversely affecting health and safety. Involve staff in the risk assessment process.
Record and document control measures in the form of operating procedures which stipulate clearly any requirements such as PPE/dress requirements. Make these requirements official and mandatory.
Provide adequate training to explain and justify the controls which have been put in place particularly if they impinge on religious beliefs and customs. Provide training for supervisors and managers.
Where there are disputes relating to religion versus health and safety requirements, involve specialists in this area to mediate. Consider options such as redeployment and modified control measures or reasonable adjustments to the work and workplace where these can be achieved and justified.
Be prepared to take disciplinary or other action where necessary.
Religious beliefs and customs are very important to those who hold them, even when they potentially put those individuals at risk. Employers and those with a responsibility for health and safety must make sure that they have the necessary procedures and skills in place to be able to effectively manage the issue of religion where it could affect health and safety. Failure to do so could lead to expensive litigation and a poor relationship with employees. Education of the workforce is important too and is vital to ensure that health and safety is not compromised by religious beliefs.
Religion in the workplace and its interface with health and safety is a complex and difficult topic. It is an issue which needs to be dealt with sensitively, carefully and positively if people are to be protected while they are at work.
Religion or belief guidance for employers from the Equality and Human Rights Commission.