Yes. An employer can have a policy which places limits on discussions about religion or belief at work.
To reduce the risk of being challenged, any restrictions on freedom of speech or manifesting religion or belief should be proportionate to achieving aims like protecting the rights of others or the reputation of the employer. It’s unlikely to be proportionate or practicable to ban discussion of religion or belief altogether, such as what is involved in particular festivals. When discussion becomes proselytising - that is seeking to persuade someone to join a religion, cause or group - it may well be proportionate to restrict this in the workplace.
Restrictions on discussing religion or belief may be more justified in some environments. For example, teachers and support staff in schools should only discuss their religion or belief with pupils if they have been invited to by a pupil. If a teacher does express their personal views relating to their religion or belief, they must ensure they do so in a way that is not imposing those views on pupils. This situation is similar for doctors and nurses, expressing personal views or beliefs to patients.
An employer is legally liable for harassment by their employees unless it can show it has taken all reasonable steps to prevent it. This might be by having clear policies setting out what behaviour is unacceptable and training its employees on those policies.
Whether talking about religion or belief is discrimination or harassment will depend on the specific circumstances. Not all behaviour which an employee finds offensive will be harassment.
For example, the law says it is only harassment if the behaviour being complained about is 'unwanted'. If an employee starts a discussion about religion with a colleague whom she knows has views she strongly disagrees with it is unlikely to be harassment if the colleague expresses those views. Because the employee initiated the discussion it will be hard for her to argue the colleague’s behaviour was 'unwanted'.
There may be a particular risk of harassment where a situation involves someone in powerful position expressing views related to religion or belief to another person in a vulnerable or subordinate position. See our guide to the law to find out more about harassment.
An employee does not have an unlimited right to freedom of expression. For example, the right can be restricted to protect the rights of others where an employee expresses views which discriminate, harass, or incite violence or hatred against other persons or groups. Sexist, homophobic or transphobic comments relate to characteristics which are protected under the Equality Act 2010, so making such comments potentially amounts to unlawful harassment or discrimination.
If you decide that it was inappropriate for the employee to express a particular view in the workplace you should speak to the employee and inform them that their comment upset or offended others or may do so. If the employee persists with their behaviour, they should be made aware that their behaviour might amount to harassment. If the employee’s behaviour breaches your policies on appropriate conduct then you should also point this out to the employee and explain that if they persist this may result in disciplinary action and, ultimately, dismissal.
If you do not take reasonable steps to prevent harassment occurring then you will be liable for your employee’s actions.
As an employer, you will need to ensure that employees take particular care when expressing views related to religion or belief to service users, for example patients, in a healthcare setting. This is especially the case if there is a request to pray with a service user. The service user may well be in a vulnerable position and it is important to consider where the request has come from. If it is the service user who has asked the employee to pray with them, this may be appropriate.
However, if the request comes from the employee or a family member you will need to check the service user’s views. As well as being unwelcome, praying with a service user when they do not want to participate in prayer could amount to unlawful discrimination. See our guide to the law to find out more about unlawful discrimination. Employers will also need to think about the impact on other service users if an employee spends more time with one service user than others.
Even after finding out about a service user’s religion or belief, you should not simply assume that those who share a particular religion or belief necessarily observe the same practices.
As an employer, you may be concerned that the public might view the opinions of an individual employee as those of your organisation. You may wish to protect your organisation’s brand and reputation. You will need to strike a balance between an individual’s right to freedom of expression and to a private life and the rights of others, including your own organisation’s interests.
An important factor is whether the employee expresses personal views in a work-related context or as a private individual. If an employer takes disciplinary action (including dismissal) against an employee for expressing views outside the work-related context this may be an unlawful infringement of the employee’s rights to freedom of expression or to a private life. The right to a private life is protected by Article 8 of the European Convention on Human Rights and the Human Rights Act 1998. This may make such disciplinary action unlawful and any related dismissal unfair.
By contrast, an employee expressing personal views on a work-related Facebook page or Twitter that can be viewed by staff and customers may be seen as expressing the views of the employer. It is therefore less likely that the employer will be acting unlawfully in taking disciplinary action against the employee.
The best approach for employers is to have a clear social media policy which includes guidelines on what online conduct is acceptable and what is not; and when employees will be seen as representing the company and what personal views they can express in such circumstances. The policy should also make clear that any breach will be dealt with in the same way as any other breach of policy or contract.
Last updated: 27 Mar 2017