• Kiri Thompson & Priya Cunningham

Religious Symbols and Discrimination - What you need to know

Under Section 10 of the Equality Act 2010, protection is afforded against discrimination on the grounds of religious or philosophical belief, or the lack of such a belief. This protection is necessarily qualified but is a key component of the Equality Act, along with the other eight protected characteristics.

Although the UK has, over the years, become a much less religious country, there are nevertheless millions of people in the workforce for whom their religion is a fundamental part of their identity and for whom outward manifestations of that religion are similarly important. Therefore, it is likely that at some point, many employers will encounter such a manifestation and will have to decide how to handle it.

A number of legal cases in recent years have focussed on this issue but a recent case at the Employment Tribunal highlighted this again and showed that some employers have not learned the lesson of those previous cases.

The case was that of Mr J Kovalkovs v 2 Sisters Food Group Ltd: 4102454/2020.

What happened?

Mr Kovalkovs was employed by 2 Sisters Food Group from November 2019 as a Quality Control Inspector. He was a member of the Russian Orthodox Church, who wore a crucifix, which was a gift from his mother, close to his chest as a sign of “commitment to his belief”.

During his time working for 2 Sisters, the company had a Foreign Body Control Policy which stated that “jewellery must not be worn in the production areas on site, with the exception of a single plain band wedding ring”.

However, exceptions were made for religious jewellery, as long as a risk assessment was carried out. Mr Kovalkovs was originally asked by his line manager to remove his necklace without a risk assessment being completed. He did so.

Some time later, at a meeting, it was noticed that he was again wearing it. He was asked to take it off but replied that it was an item of religious jewellery and he did not want to do so.

He was asked if a risk assessment had been carried out and he said that his line manager was aware of the necklace but had not carried out a risk assessment.

A risk assessment was then carried out. It was concluded that because the chain was made of links, there was a risk of contamination. The potential for entanglement, entrapment or tearing was also taken into account.

The chain was not discussed in any detail with Mr Kovalkovs, nor was it inspected to determine if it was in good condition. There was no conversation regarding whether steps could be taken to mitigate the risk, such as ensuring that it was tucked into his clothing at all times, or that his PPE could be fastened up to ensure it was not exposed.

Mr Kovalkovs still refused to take it off and he was sent to the HR office, where he was told that, as he was refusing to obey a management instruction, his probationary period and thus his employment would be ended immediately without any due process being followed.

He appealed his dismissal and at the appeal hearing, he was told that he ought to have declared his necklace to the company at the beginning of his employment, in order that the risk assessment could be done at that point.

2 Sisters upheld the dismissal and the letter informing Mr Kovalkovs focussed entirely on the fact that he had not declared the necklace during the induction course. It did not consider any attempt to mitigate the risk.

He took his claim for indirect discrimination to an employment tribunal, who dismissed his claim. He then appealed to the Employment Appeal Tribunal, who handed down their judgment, setting aside the ET’s dismissal of the claim of indirect discrimination. The judge said that:

“the Tribunal erroneously inverted the onus of proof in relation to the issue of proportionality. In consequence it failed to make any determination as to whether or not [2 Sisters] had discharged the burden of proof placed on it by section 19(2)(d)” [of the Equality Act 2010]. He ordered that the case be sent back to the same tribunal to look at the issues of liability again and “if appropriate, remedy in the indirect discrimination claim”.

At the tribunal, Mr Kovalkovs said that when looking at whether the Foreign Body Control Policy was a proportionate means, account needed to be taken of lanyards, identity passes and keys worn by other employees around their necks. He also said that 2 Sisters’ line manager and her superior had admitted that the risk assessment was not scored properly.

This meant that it could not accomplish the objective of health and safety and consequently the policy could not be considered to be proportionate or necessary.

The Tribunal concluded that the Foreign Body Control policy and its application to Mr Kovalkovs were indirectly discriminatory. He was awarded £22,000 in compensation.

What to know

Under Section 19 (2)(d) of the Equality Act, it is acceptable to indirectly discriminate if doing so can be proved to be a proportionate means of achieving a legitimate aim. On the question of the word “proportionate”, the judge in the case of R (Elias) v Secretary of State for Defence [2006] EWCA said

". . . the objective of the measure in question must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end. So, it is necessary to weigh the need against the seriousness of the detriment to the disadvantaged group."

He went on to say:

"First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective?"

In the case of the necklace, if it was a genuine health and safety or health hazard/risk – it might get caught in machinery if the person wearing it leant over - then that could be classed as a valid reason (provided, of course, that this could be supported with a risk assessment).

However, the Tribunal found that the employer had failed to weigh the needs of the health and safety requirements against the discriminatory effects of those requirements. Had Mr Kovalkovs been wearing a sentimental piece of jewellery with no religious connection, then this case would never have come before the Employment Tribunal.

The fact that he was wearing a cross, which was a religious symbol, meant that there was an onus on the employer not to operate their health and safety policy in a way that discriminated against him. In awarding compensation for discrimination, the Tribunal had regard to the fact that the cross was a religious symbol which had deep and profound meaning for him.

This means that employers cannot rigidly enforce workplace policies where there is a danger that they might be discriminating against staff.

There is also an element of due process to this case – an employer cannot just call someone in and sack them “on the spot”. It doesn’t matter how long they have worked for their employer; a full and proper process always has to be followed first.

One thing that does arise from both the Kovalkovs case and those cited above is that a lot of time and money has been spent deciding whether discrimination has taken place and whether there was a legal justification for it. This area of law is complex and, for many employers, difficult to get to grips with. It can be complicated by the fact that even within a particular religion, there are denominations who may interpret religious requirements differently; keeping up with this may seem an almost impossible task. What might seem like a common-sense decision based on an assumption can end up as a very costly – albeit inadvertent - mistake. It makes sense therefore to obtain expert legal advice at the earliest opportunity if there is any hint of a dispute involving the wearing of religious symbols.

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