Religious Freedom, Religious Discrimination and the Workplace 9781849466363, 9781474203395, 9781509902859

This book considers the extent to which religious interests are protected at work, with particular reference to the prot

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English Pages [321] Year 2016

Table of contents :
Acknowledgements
Contents
TABLE OF CASES
TABLE OF LEGISLATION
1
Religious Discrimination and Religious Freedom at Work
I. Introduction
II. Religion in the UK
III. Experience of Discrimination
IV. Tackling Religious Discrimination
2
Seeking a Definition of Religion and Belief
I. What is "Religion"?
II. Defining Belief
III. Conclusion
3
Protecting Religion at Work
I. Introduction
II. Why Protect Religious Interests?
III. Protecting Religious Interests in the Work Context
IV. The Proportionality Equation: Religion and the Workplace
V. Conclusion
4
Freedom of Religion at Work: The European Dimension
I. Freedom of Religion and the European Convention on Human Rights
II. The EU Framework: EU Directive 2000/78
III. The Interaction of the Two Courts
5
Protection Against Religion and Belief Discrimination in the UK
I. Protection Under the Equality Act 2010
II. Religious Schools
III. Protection of Religious Interests That are Not Protected by the Equality Act 2010
IV. Conclusion
6
Accommodating Religion and Belief in the Workplace: North American Perspectives
I. United States of America
II. Canada
III. Conclusion
7
Conclusion: Religious Freedom at Work
I. Protecting Religious Work
II. A Duty of Reasonable Accommodation?
III. Remaining Difficulties
IV. Conclusion
Index

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RELIGIOUS FREEDOM, RELIGIOUS DISCRIMINATION AND THE WORKPLACE This book considers the extent to which religious interests are protected at work, with particular reference to the protection against religious discrimination provided by the Equality Act 2010. It establishes a principled basis for determining the proper scope of religious freedom at work, and considers the interaction of freedom of religion with the right not to be discriminated against on grounds of religion and belief. The book locates the debates surrounding religion and belief equality within a philosophical and theoretical framework in which the importance of freedom of religion and its role within the workplace are fully debated. This second edition is fully revised and updated in the light of recent case law from the UK and the European Court of Human Rights, which deals with religious discrimination and freedom of religion.

ii

Religious Freedom, Religious Discrimination and the Workplace Second Edition

Lucy Vickers

OXFORD AND PORTLAND, OREGON 2016

Hart Publishing An imprint of Bloomsbury Publishing Plc Hart Publishing Ltd Kemp House Chawley Park Cumnor Hill Oxford OX2 9PH UK

Bloomsbury Publishing Plc 50 Bedford Square London WC1B 3DP UK

www.hartpub.co.uk www.bloomsbury.com Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA www.isbs.com HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First edition published 2008 This edition first published 2016 © Lucy Vickers Lucy Vickers has asserted her right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/ doc/open-government-licence/version/3) excepted where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2015. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HBK: 978-1-84946-636-3 ePDF: 978-1-50990-285-9 ePub: 978-1-50990-286-6 Library of Congress Cataloging-in-Publication Data Names: Vickers, Lucy, author. Title: Religious freedom, religious discrimination and the workplace / Lucy Vickers. Description: Oxford ; Portland, Oregon : Hart Publishing, an imprint of Bloomsbury Publishing Plc, 2016. | Includes bibliographical references and index. Identifiers: LCCN 2016029281 (print) | LCCN 2016029538 (ebook) | ISBN 9781849466363 (pbk. : alk. paper) | ISBN 9781509902866 (Epub) Subjects: LCSH: Religion in the workplace—Law and legislation. | Freedom of religion. | Religion in the workplace—Law and legislation—Great Britain. | Freedom of religion—Great Britain. | Great Britain. Equality Act 2010 Classification: LCC K1771.5 .V53 2016 (print) | LCC K1771.5 (ebook) | DDC 344.01/133—dc23 LC record available at https://lccn.loc.gov/2016029281 Typeset by Compuscript Ltd, Shannon

For Jonny, David, Peter and Luke

vi

ACKNOWLEDGEMENTS

The research for the first edition of this book was carried out whilst on research leave funded by the Arts and Humanities Research Council (AHRC). I would like to thank the AHRC for its support. Many individuals—friends, family and colleagues—have discussed the issues raised in the book with me, and have helped me to shape my ideas. My thanks to you all. Particular thanks go to Professor Peter Edge and Chara Bakalis (both of Oxford Brookes University), Professor Mark Bell (Trinity College Dublin) and Professor Lori Beaman (University of Ottawa), who read drafts of the revised chapters and gave invaluable feedback. This second edition has sought to bring the law up to date to May 2016, although some later developments have been included.

viii

CONTENTS

Acknowledgements�� vii Table of Cases��xv Table of Legislation��xxv

1. Religious Discrimination and Religious Freedom at Work��1 I. Introduction��1 II. Religion in the UK��3 III. Experience of Discrimination��5 IV. Tackling Religious Discrimination��8 Conflicts Arising from the Exercise of Religious Freedom at Work��8 Resolving the Conflict in the Workplace��10 2. Seeking a Definition of Religion and Belief��12 I. What is ‘Religion’?��12 Content-based Definitions��15 Defining Religion by Analogy��17 The Purposive Approach to Definition��18 Defining Religion: The Approach of the UK Courts��20 II. Defining Belief��22 Defining Belief: The Approach of the UK Courts��24 III. Conclusion��31 3. Protecting Religion at Work��32 I. Introduction��32 Particular Protection for Religion?��33 Terminology: Rights or Interests?��35 II. Why Protect Religious Interests?��37 Religious Reasons��40 Conflict Resolution and Social Inclusion��41 ‘Aesthetics’��43 Social Cohesion��43 Autonomy and Dignity��45 The Content of Religious Interests��49 Religious Interests and Group Rights��50

x

Contents Freedom of Religion and Freedom from Religious Discrimination��52 Conclusion��52 III. Protecting Religious Interests in the Work Context��53 Should Religious Interests be Protected at Work?��53 The ‘Right to Resign’��54 The Case for Protection in the Workplace��55 Economic Benefits of Work��56 Non-Financial Benefits of Employment��56 Protecting Religion for Equality Reasons��59 Contracting Out��62 Stepping Out of the Employment Relationship��62 And Yet … The Residual Protection of the ‘Right to Resign’��63 Conclusion��64 IV. The Proportionality Equation: Religion and the Workplace��65 Competing Rights��67 The Equality Rights of Others��67 The Negative Aspect of Freedom of Religion and the Protection of Religious Interests��68 Rights to Private Life, Freedom of Speech and Freedom of Association��68 Economic Efficiency��69 Employer Autonomy and Reputation��70 An Interest in Being in Work��72 The Right to be Free from Offence��74 Contextual Issues��79 The Public/Private Divide��79 Public Sector Employers��80 Private Sector Employers��82 Work as a Public or Private Space��83 Religious Manifestation or Religious Motivation��85 Organic or Functional View of the Religious Workplace��87 The Meaning of Equality��88 Socio-Political Context��91 The Role of the State��92 V. Conclusion��93

4. Freedom of Religion at Work: The European Dimension��97 I. Freedom of Religion and the European Convention on Human Rights��97 Protection under the Human Rights Act 1998��97 Protection of Freedom of Religion Under the European Convention on Human Rights��101

Contents

xi

The Application of the Convention to the Workplace��101 Treaty Basis of the Convention��104 Contracting Out of Protection��104 Freedom of Religion Under Article 9��105 Manifestation of Religion��107 Article 9(2)��110 Application of Article 9(2) in the Workplace��121 Protection Against Religious Discrimination Under Article 14��131 Article 14 in the Employment Context��132 Conclusion: Protection under the Convention��134 II. The EU Framework: EU Directive 2000/78��135 Directive 2000/78��136 Definition of ‘Religion’��138 Determining an Individual’s Religion or Belief��139 Potentially Indirectly Discriminatory Requirements��140 Genuine Occupational Requirements and Religious Ethos Employers��144 Discrimination on Other Grounds��148 Conclusion: The EU Directive��149 III. The Interaction of the Two Courts��150 Reconciling Equality and Human Rights: Reciprocal Interpretation?��152 The Specific Situation Rule��154 The Value of Communal Interests��155 The Margin of Appreciation��155 Conclusion: The Role of Proportionality��157 5. Protection Against Religion and Belief Discrimination in the UK��159 I. Protection Under the Equality Act 2010��160 Definition of Religion and Belief��160 Coverage of the Equality Act 2010��161 Direct Discrimination��164 Indirect Discrimination��165 Justification��169 Proving Justification��172 The Distinction Between Direct and Indirect Discrimination��173 Exceptions to the Non-Discrimination Duties��174 Religious Requirements that Discriminate on Other Grounds��177 Special Exceptions for those Employed for the Purposes of an Organised Religion��179 Exceptions to Non-Discrimination in Northern Ireland��183

xii

Contents Determining Whether a Person Meets a Religious Requirement��183 Ascertaining an Organisation’s Religious Ethos��185 Victimisation��186 Harassment��186 Positive Action��191 Applying the Equality Act 2010 to the Workplace��192 Hours of Work��192 Sunday Working and Shop Workers��194 Dress Codes and Religious Symbols��195 Lifestyle Requirements��204 Refusal of Work Tasks��207 Sharing Religious Views at Work��209 The Public Sector Equality Duty��212 II. Religious Schools��214 III. Protection of Religious Interests That are Not Protected by the Equality Act 2010��222 IV. Conclusion��225

6. Accommodating Religion and Belief in the Workplace: North American Perspectives��228 I. United States of America��229 Meaning of Religion��229 Direct and Indirect Discrimination��231 Bona Fide Occupational Requirements and the Ministerial Exception��233 Duty to Accommodate��237 Harassment��244 Conclusion��247 II. Canada��248 Determining a Person’s Religion��249 Bona Fide Occupational Requirements and the Duty to Accommodate��250 The Duty to Accommodate and Undue Hardship��251 Religion: A Bona Fide Occupational Requirement?��255 Religious Employers��256 Religious Requirements that Discriminate on Other Grounds��257 Conclusion��260 III. Conclusion��261 7. Conclusion: Religious Freedom at Work��263 I. Protecting Religious Work��264 II. A Duty of Reasonable Accommodation?��265 III. Remaining Difficulties��274

Contents

xiii

False Consistency?��275 False Objectivity?��277 IV. Conclusion��281

Index��283

xiv

TABLE OF CASES

Court of Justice of the European Union Achbita v G4S Secure Solutions NV Case C-157/15�� 57, 135, 136, 140, 143, 150, 158 Bilka-Kaufhaus v Weber von Hartz [1986] ECR 1607�� 137, 171, 176, 272 Chaćon Navas v Eurest Colectividades SA Case C-13/05 [2006] IRLR 706��136, 275 Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) [1990] ECR I-3941��136, 205, 206 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line Case C-438/05��153, 157 Kucukdeveci v Swedex Case C-555/07 [2010] IRLR 346��150 Laval v Svenska Byggnadsarbetareforbundet Case C-341/05 [2007] ECR I-10779��153, 157 Mangold v Helm Case C-144/04 [2005] ECR I-9981��136 Omega v Oberburgermeisterin der Bundesstadt Bonn Case C-36/02 [2004] ECR I-9609��153, 156 Schmidberger Internationale Transporte Planzüge v Republik Österreich Case C-112/00 [2003] ECR I-5659��153, 156 UK v Council (Working Time Directive) Case C-84/94��144 European Court of Human Rights Ahmad v UK (1981) 4 EHRR 126��53, 102, 267 Ahmed v UK ECHR 1998-VI 2195 (2000) 29 EHRR 1��112 Airey v Ireland Series A no 32, (1979) 2 EHRR 305��132 Aktas v France App no 43563/08��119 Angelini v Sweden (1988) 10 EHRR 123 (Eur Comm HR)��13, 122, 138 Arrowsmith v UK (1978) 19 D&R 5, (1978) 3 EHRR 218�� 13, 85, 107, 108, 122, 250, 252 Barthold v Germany Series A no 90, (1985) 7 EHRR 383��111 Bayrak v France App no 14308/08��119 Belgian Linguistics v Belgium Series A no 6, (1979) 1 EHRR 252��131 Campbell and Cosans v UK (1982) 4 EHRR 293�� 13, 24, 25, 29, 139 Chappel v UK (1988) 10 EHRR 510 (Eur Comm HR)��13, 122 Chondol v Liverpool City Council [2009] UKEAT 0298/08��191 Dahlab v Switzerland [2001] ECHR 899�� 101, 111, 115, 116, 124, 152, 198 Demir and Baykara v Turkey App no 34503/97 12 November 2008��150 Dudgeon v UK (1981) 4 EHRR 149��114

xvi

Table of Cases

Ebrahimian v France App no 64846/11 26 November 2015�� 115, 116, 121, 125, 126, 152 Eweida v UK App nos 48420/10, 59842/10, 51671/10 & 36516/10 [2013] ECHR 37��55, 64, 71, 103, 104, 107, 109, 110, 114, 117, 119, 120, 122, 123, 125–27, 133, 151, 154, 203, 204, 208, 267 Gamaleddyn v France App no 18527/08��119 Ghazal v France App no 29134/08��119 Glasenapp v Germany Series A no 104, (1987) 9 EHRR 25��102 Goodwin v UK ECHR 1996-II, 483, (1996) 22 EHRR 123��111 H v UK (1993) 16 EHRR CD 44��13, 122 Halford v UK (1997) 24 EHRR 523��84 Handyside v UK Series A no 24 (1981) 1 EHRR 737��29, 113, 118 Hasan and Chaush v Bulgaria App no 30985/96, (2002) 34 EHRR 55�� 72, 105, 117, 128, 155, 181 Hodgson v UK (1987) 51 DR 136��111 ISKON v UK (1994) 76A D&R 90��13, 122 Kalaç v Turkey (1997) 27 EHRR 552��115, 117 Kara v UK App no 36528/97 22 October 1998��111, 123, 126 Knudsen v Norway (1985) 42 DR 247��128 Kokkinakis v Greece Series A no 260-A, (1993) 17 EHRR 397�� 37, 105, 191, 196, 210, 263 Konttinen v Finland (1996) 87 DR 68��126 Kosiek v Germany Series A no 105, (1986) 9 EHRR 328��102 Kosteski v Former Yugoslav Republic of Macedonia [2006] ECHR 403��123, 139 Larissis v Greece [1998-I] ECHR 65��115, 116 Lautsi v Italy App no 30814/06 18 March 2011��109, 119, 122 Leander v Sweden Series A no 116, (1987) 9 EHRR 433��102 Lingens v Austria Series A no 103, (1986) 8 EHRR 407��113 Martínez, Fernández v Spain App no 56030/07 15 May 2012��129 Metropolitan Church of Bessarabia v Moldova (2002) 35 EHRR 306��122, 140 Niemietz v Germany Series A no 251-B, (1992) 16 EHRR 7��55, 102 Norris v Ireland (1988) 13 EHRR 186��114 Obst v Germany App no 425/03 23 September 2010��117, 129, 205 Otto Preminger Institute v Austria Series A no 295A, (1995) 19 EHRR 34��130 Pendragon v UK (1998) EHRR CD 179��13, 122 Pichon and Sajous v France App no 49853/99 (Admissibility Decision) 2 October 2001��108 Pitkevich v Russia App no 47936/99 8 February 2001��103, 114, 116 Rommelfanger v FDR (1989) 62 DR 151��104, 128, 129 Sahin v Turkey App no 44774/98 10 November 2005�� 112, 115, 116, 118, 119, 122, 198, 200 Sahin and Karaduman v Turkey App no 16278/90, (1993) 74 DR 93��124, 152 Saniewski v Poland App no 40319/98 26 June 2001��103 SAS v France App no 43835/11 1 July 2014�� 28, 112, 114, 120, 121 Schüth v Germany App no 1620/03 23 September 2010��117, 129, 204 Serif v Greece App no 38178/97, (2001) 31 EHRR 20�� 72, 105, 117, 128, 181

Table of Cases

xvii

Sessa v Italy App no 28790/08 3 April 2012��102 Sidabras and Dziautas v Lithuania App nos 55480/00 & 59330/00 27 July 2004��84, 102, 132 Singh, Javir v France App no 25463/08��119 Singh, Ranjit v France App no 27561/08��119 Stedman v UK (1997) 23 EHRR CD168��53, 102, 267 Stevens v UK (1986) 46 DR 245��123 Sunday Times v UK Series A no 30, (1979) 2 EHRR 245��110 Swami Omkaramamda and the Divine Light Zentrum v Switzerland (1981) 25 D&R 105 (Eur Comm HR)��13, 122 Thlimmenos v Greece (2001) 31 EHRR 15�� 36, 133, 134, 267 Valsamis v Greece (1997) 24 EHRR 294��109 Vereniging Rechtswinkels Utrecht v Netherlands (1986) 46 DR 200��104, 114 Vogt v Germany Series A no 251-B, (1992) 16 EHRR 7��102, 103 X and the Church of Scientology v Sweden (1976) 16 D&R 68��13, 122 X, Y and Z v UK (1982) 31 D&R 50��13, 24, 139 Yanasik v Turkey (1993) 74 DR 14��115 Young, James and Webster v UK Series A no 44 (1982) 4 EHRR 38, [1981] IRLR 408��92, 104 Domestic Cases Australia Church of the New Faith v Commission of Pay-roll Tax (Victoria) (1982–83) 154 CLR 120��21, 22 Canada Alberta v Hutterian Brethren of Wilson Colony [2009] 2 SCR 567, (2007) ABCA 160��250 Audmax Inc v Ontario Human Rights Tribunal 2011 ONSC 315��255 Bhinder v Canadian National Railway [1985] 2 SCR 561��254 British Columbia (Public Service Employee Relations Comm) v BCGEU (‘Meiorin’) [1999] 3 SCR 3 ��251 British Colombia (Superintendant of Motor Vehicles) v British Columbia (Council of Human Rights) (‘Gismer’) [1999] 3 SCR 868��251 Caldwell v St Thomas Aquinas High School (1984) 2 SCR 603�� 257–60 Central Alberta Dairy Pool v Alberta (Human Rights Commission) [1990] 2 SCR 489��251 Central Okanagan School District No 23 v Renaud [1992] 2 SCR 970��251, 252 Chambly (Commission Scolaire Regionale) v Bergevin [1994] 2 SCR 525��252 Dhillon v British Columbia (Ministry of Transportation and Highways) (1999) 35 CHRR D/293��254 Froese v Pine Creek School Division no 30, 28 December 1978 (Man Bd Adjud) (unreported)��251 Funk and Manitoba Labour Board, Re (1976) 66 DLR (3d)��250 Garrod v Rhema Christian School (1991) 15 CHRR D/477��257, 259 Loomba v Home Depot Canada Inc [2010] OHRTD No 1422 (QL) (Ont HR Trib)��255

xviii

Table of Cases

Marriage Commissions, In the matter of [2011] SKCA 3��253 Moore v British Columbia (Ministry of Social Services) (1992) 17 CHRR D/426��253 Multani v Commission Scolaire Marguerite-Bourgeoys [2006] 1 SCR 256��93, 256, 263 Nijjar v Canada 3000 Airlines Ltd (1999) 36 CHRRD/76 (Can Trib)��255 Ontario Human Rights Commission v Christian Horizons 2010 ONSC 2105 (CanLII)��258, 259 Ontario Human Rights Commission and O’Malley v Simpson-Sear [1985] 2 SCR 536��253 Pannu v Skeena Cellulose Inc (2000) 38 CHRR D/494��254 Parks v Christian Horizons (1992) 16 CCHR D/40��257, 258 Qureshi v G4S Security Services 2009 HRTO 409 (CanLII)��252 R v Hothi [1985] 3 WWR 256 (Man QB), aff ’d [1986] 3 WWR 671 (Man CA)��254 Ross v New Brunswick School District No 15 (1996) 1 SCR 825��259 Schroen v Steinbach Bible College (1999) 35 CHRR D/14 (Man Bd Adj)��256, 260 Spellman v University of Windsor [1979] Ontario Labour Relations Board Reports 458��250 Syndicat Northcrest v Amselem [2004] 2 SCR 551��249 Trinity Western University v College of Teachers (2001) SCR 772��258 Vriend v Alberta [1998] 1 SCR 493��259 Denmark Decision 21 January 2005, 22/2004��137 France Baby Loup case, Cour de Cassation Assemblée Plénière, 25 June 2014 (2014) Recueil Dalloz, 1386��137, 142, 147 Conseil d’Etat, 28 June 1963, Narcy, Grands arrêts de la jurisprudence administrative 293��141 Conseil d’Etat, 22 February 2007, APREI (association du personnel relevant des établissements pour inadaptés), Grands arrêts de la jurisprudence administrative 294��141 Germany Berlin Labour Court, 18 December 2013, 54 Ca 6322/13��147 Federal Constitutional Court BVerfGE 83, 341 (353)��138 Federal Constitutional Court BVerwGE 90, 112 (115)��138 Federal Constitutional Court, classroom crucifix case, BVerfGE 93, 1, 1 BvR 1087/91��274 Federal Constitutional Court, 24 September 2003, Ludin, 2 BvR 1436/02��141, 156 Federal Constitutional Court 1 BvR 471/10, 27 January 2015��141 Federal Labour Court, 22 March 1995, [1996] Neue Juristische Wochenschrift 143��161 Federal Labour Court, 10 October 2002, 2 AZR 472/01��141, 200 Federal Labour Court, 21 December 2010, 2 AZR 516/09��146

Table of Cases

xix

Federal Labour Court, 25 April 2013, 2 AZR 579/12��146 Federal Labour Court, 24 September 2014, 5 AZR 611/12��141 Labour Court Stuttgart, 28 April 2010, 14 Ca 1585/09, NJOZ 2011, 1309��149 Land Labour Court Baden-Württemberg, 24 June 1993, 11 Sa 39/93, NZA 1994, 416��148 Land Labour Court Rhineland-Palantinate, 2 July 2008, 7 Sa 250/08��146 United Kingdom Apelogun-Gabriels v Lambeth LBC ET Case no 2301976/05��211 Arya v Waltham Forest LBC ET case no 3200396/11��28 Azmi v Kirklees MBC [2007] ICR 1154�� 170, 174, 196, 201 Baggs v Fudge ET case no 1400114/2005��24 Barry v Midland Bank [1999] IRLR 581 (HL)��166 Bracebridge Engineering v Darby [1990] IRLR 3��189 Bull v Hall [2013] UKSC 73��266, 268 Cadman v Health & Safety Executive [2006] IRLR 969��172 Chaplin v Royal Devon and Exeter Hospital NHS Foundation ET Case no /1702886/09��202, 203 Chatwal v Wandsworth BC [2011] UKEAT 0487-10-0607��167 Cherfi v G4S Security Services Ltd [2011] UKEAT 0379/10/2405 24 May 2011��193 Chief Constable of Lincolnshire Police v Stubbs [1999] IRLR 91��84 Chondol v Liverpool City Council [2009] UKEAT 0298/08��210 Copsey v WWB Devon Clays Ltd [2005] EWCA Civ 932��225 Cresswell v Board of Inland Revenue [1984] IRLR 190��209 Dhinsa v SERCO ET Case no /1315002/2009��202 Dobie v Burns International Security Services (UK) Ltd [1984] IRLR 329��224 Eweida v British Airways [2010] EWCA Civ 80��167–69, 202 Farrell v South Yorkshire Police Authority ET case no 2803805/10��27 Gill v Northern Ireland Council for Ethnic Minorities [2002] IRLR 74��161 Glasgow City Council v McNab UKEATS/0037/06/MT��30, 215, 221 GMB v Henderson EAT 73/14/DM, 13 March 2015��30 Gogay v Hertfordshire CC [2000] IRLR 703��59 Grainger plc v Nicholson [2010] IRLR 4��24–26, 29, 30 Greater Glasgow Health Board v Doogan [2014] UKSC 68��207 Greater Manchester Police Authority v Power EAT 0434/09/DA��25 Grootcon (UK) Ltd v Keld [1984] IRLR 302 (EAT)��224 Haddon v Van Den Bergh Foods Ltd [1999] IRLR 672��223 Hashman v Milton Park Dorset Ltd (t/a Orchard Park) ET case no 3105555��27 Haye v Lewisham LBC ET Case no 2301852/2009��187, 211 Heafield v Times Newspapers [2013] UKEATPA/1305/12/BA��190 Hender, Louise v Prospects ET Case no 2902090/2006 13 May 2008��177 Holland v Angel Supermarket Ltd ET Case no 3301005/2013��164 Iceland Frozen Foods [1982] IRLR 439��223 Insitu Cleaning v Heads [1995] IRLR 4��189 Isle of Wight Tourist Board v Coombes [1976] IRLRL 413��59 James v Eastleigh BC [1990] 2 AC 751��174 Janaway v Salford HA [1989] AC 537��207 JH Walker v Hussain [1996] IRLR 11��160

xx

Table of Cases

Jivraj v Hashwani [2011] UKSC 40��162 Johnson v Unisys [2001] UKHL 13��59, 100 Jones v University of Manchester [1993] IRLR 218��166 Kelly v Unison ET Case no /2203854-57/08, 28 January 2010��30 Ladele v Islington BC [2009] EWCA Civ 1357�� 71, 171, 208, 209 Lisk v Shield Guardian Co ET case no /3300873/11��27 London Underground v Edwards (No 2) [1998] IRLR 364 (HL)��166 Maistry v BBC ET Case no 1313142/10��27 Malik v BCCI [1997] 3 All ER 1, [1997] IRLR 462��32, 59, 100 Mandla v Lee [1983] 2 AC 548��2, 160 Mba v Merton LBC [2013] EWCA Civ 1562�� 168, 169, 193, 194 Mbuyi v Newpark Childcare ET Case no 3300656/2014��164, 211, 212 McClaren v Home Office [1990] ICR 824��99 McClintock v Department of Constitutional Affairs [2008] IRLR 29��26 McFarlane v Relate Avon Ltd [2010] EWCA Civ 880��208, 209 Moores v Bude Stratton Council [2001] ICR 271��59 Muhammad v Leprosy Mission International ET Case no 2303459/0989, 16 December 2009�� 73, 176, 177, 185 Noah v Sarah Desrosiers (t/a Wedge) ET Case no /2201867/2007��201 O’Neill v Governors of St Thomas More RCVA Upper School [1996] IRLR 372��205, 206 P v S and Cornwall CC [1996] IRLR 347��156 Parsons’ Application, Re [2003] NICA 20�� 106, 184, 185, 281 Pay v Lancashire Probation Service [2004] ICR 187 EAT��99 Pemberton v Inwwod, Acting Bishop of Southwell and Nottingham ET Case no 2600962/2014��180, 181, 183 Percy v Church of Scotland Board of National Mission [2005] UKHL 73��205, 206 Post Office v Foley, HSBC Bank (formerly Midland Bank) v Madden [2000] IRLR 827 (CA)��224 Price v Civil Service Commission [1978] ICR 27��166 R v Secretary of State for Employment, ex parte Seymour Smith [2000] IRLR 263 (HL)��166 R (on the application of Amicus–MSF) v Secretary of State for Trade and Industry [2004] IRLR 430�� 148, 179, 181, 183, 219 R (on the application of Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15�� 28, 101, 112, 115, 124, 200, 279 R (on the application of E) v Governing Body of JFS and the Admissions Appeal Panel of JFS [2009] UKSC 15��51 R (on the application of Hodkin) v Registrar General of Births, Deaths and Marriages [2013] UKSC 77��20–22, 30 R (on the application of Williamson) v Secretary of State for Education and Employment [2005] UKHL 15��29 Reaney v Hereford Diocesan Board of Finance ET Case no /1602844/06��180, 181, 183, 184 Richmond Precision Engineering Ltd v Pearce [1985] IRLR 179��223 Rolls Royce Ltd v Walpole [1980] IRLR 343��223

Table of Cases

xxi

Scally v Southern Health and Social Services Board [1992] 1 AC 294��59 Scott Packing and Warehousing Co Ltd v Paterson [1978] IRLR 166��224 Seide v Gillette [1980] IRLR 427��2, 160 Shergill v Khaira [2014] UKSC 33��109 Sheridan, Mark v Prospects ET Case no 2901366/2006 13 May 2008��177 Showboat Entertainment Centre v Owens [1084] 1 WLR 384��165 Sidhu v Aerospace Composite Technology [2000] IRLR 602��84 Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch)��211, 212 Spring v Guardian Assurance plc [1994] 3 All ER 129��59 Streatfield v London Philharmonic Orchestra Ltd ET Case no /2390772/2011��26 Tariq v Young Case 247738/88, Equal Opportunities Review Discrimination Case Law Digest 2��2, 160 Thompson v Luke Delaney George Stobbart Ltd [2011] NIFET 00007 11FET 15 December 2011��192 Treganowan v Robert Knee & Co Ltd [1975] IRLR 247��224 UCATT v Brain [1981] IRLR 224��223 United Grand Lodge of England v Commissioners of HM Revenue and Customs [2014] UKFTT 164 (TC)��21 Wadley v Eager Electrical Ltd [1986] IRLR 93��224 Wasteney v East London NHS Foundation Trust ET Case no 3200658/2014, [2016] UKEAT 0157_15_0704��211, 212 Waters v Commissioner of Police of the Metropolis [1997] IRLR 589��84 Whaley v Lord Advocate [2007] UKHL 53��26 Wigan BC v Davies [1979] IRLR 127��224 Wileman v Minilec Engineering [1981] IRLR 145 (EAT)��189 Williams v Secretary of State for Education and Employment [2002] EWCA Civ 1926��189 Williams v South Central Ltd, ET Case no 2306989/2003��24 Williamson v Secretary of State for Education and Employment [2005] UKHL 15��28, 29 Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 347��32 X v Mid Sussex Citizens Advice Bureau (CAB) [2012] UKSC 59��161 X v Y [2004] EWCA Civ 662��99 X (by her father and litigation friend) v Headteacher of Y School and Governors of Y School [2006] EWHC 298 (Admin)��200 YL v Birmingham City Council [2007] UKHL 27��98 United States Ansonia Board of Education v Philbrook 479 US 60 (1986)��238–40, 242 Bollenbach v Board of Education of Monroe Woodbury Central School District 659 F Supp 1450 (1987)��235 Bourini v Bridgestone Firestone North America Tire LLC 136 Fed Appx 747 (2005)��246 Breech v Alabama Power 962 F Supp 1447 (1997)��241 Brown v Pena 955 F Supp 898, aff ’d 134 F 3d 375 (1998)��230 Brown v Polk County 61 F 3d 650 (8th Cir 1995)��245 Brown Transport Corp v Commonwealth 133 Pa Comm 545, A 2d 555 (1990)��244, 245

xxii

Table of Cases

Bruff v North Mississippi Health Services 244 F 3d 495 (2001)��242 Buonanno v AT&T Broadband LLC 313 F Supp 2d 1069 (2004)��243 Burns v Southern Pacific Transportation Co 589 F 2d 403 (9th Cir 1978)��240 Burwell v Hobby Lobby 573 US (2014)��236, 247, 248, 262 Chalmers v Tulon Co of Richmond 101 F 3d 1012 (4th Cir 1996)��245 Cloutier v Costco 390 F 3d 126 (2004)��242 Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v Amos 483 US 327 (1987)��235, 236 Diaz v Pan American World Airways 442 F 2d 385 (5th Cir 1971)��242 EEOC v Abercrombie & Fitch Stores Inc 135 S Ct 2028 (2015)��232, 233 EEOC v Alamo Rent-A-Car LLC 432 F Supp 2d 1006 (D Ariz 2006)�� 240–42 EEOC v Ilona of Hungary 108 F 3d 1169 (7th Cir 1997)��239 EEOC v Ithaca Industries 849 F 2d 116 (4th Cir 1988)��241 EEOC v Kamehameha Schools/Bishop Estate 990 F 2d 458 (9th Cir 1993)��237 EEOC v Sambo’s of Georgia 530 F Supp 86 (1981)��233 EEOC v Townley Engineering 859 F 2d 610 (9th Cir 1988)��236, 238, 240 Fike v United Methodist Childrens’s Home of Virginia Inc 547 F Supp 286 (1982)��235 Finnemore v Bangor Hydro-Electric Co 645 A 2d 15��245 First National Bank of Boston v Bellotti 435 US 765 (1978)��70 Griggs v Duke Power Co 401 US 424 (1971)��165, 231 Harris v Forklift Systems 114 S Ct 367 (1993)��245 Hishon v King & Spalding 467 US 69 (1984)��235 Hosanna-Tabor Evangelical Lutheran Church and School v EEOC 565 US_(2012)��233, 234, 248 Kendroff v St Nicholas Cathedral of the Russian Orthodox Church of North America 344 US 94 (1952)��233 Lemon v Kurtzman 403 US 602 (1971)��236 Lundy v GMC 34 F 3d 1173 (3rd Cir 1994)��246 Matthewson v Florida Game and Freshwater Fish Comn 6939 F Supp 1044 (1988)��241 McClure v Salvation Army 460 F2d 553 (5th Cir 1972)��233 Meritor Savings Bank v Vinson 477 US 57 (1986)��244 Opuku-Boateng v California 95 F 3d 1461 (9th Cir 1996)��240 Peterson v Hewlett Packard 358 F 3d 599 (9th Cir 2004)��243 Peterson v Wilmur Communications 205 F Supp 2d 1014 (2002)��230 Rayburn v General Conference of Seventh Day Adventists 772 F 2d 1164 (4th Cir 1985)��237 Shelton v University of Medicine and Dentistry of New Jersey 223 F 3d 220 (2000)��242 Slater v King Soopers Inc 809 F Supp 809 (1992)��230 Tooley v Martin-Marietta Corp 648 F 2d 1239 (1981)��240 Trans World Airlines Inc v Hardison 432 US 63 (1977)��238–40, 242 US v Board of Education for the School District of Philadelphia 911 F 2d 882 (1990 CA 3rd Cir)��238, 241 US v Seegar 380 US 163 (1965)��18, 230

Table of Cases

xxiii

Van Koten v Family Health Management Inc 955 F Supp 898, aff ’d 134 F 3d 375 (1998)��231 Venters v City of Delphi 123 F 3d 956 (1997)��244, 245 Welsh v US 398 US 333 (1970)��230 Wessling v Kroger Co 554 F Supp 548 (ED Mich 1982)��231 Wilson v US West Communications 58 F 3d 1337 (1995)�� 187, 231, 240, 245, 246 Young v Southwestern Savings and Loan Association 509 F 2d 140 (5th Cir 1975)��230

xxiv

TABLE OF LEGISLATION

International European Convention on Human Rights (ECHR)��11, 13, 14, 23, 28, 29, 43, 84, 86, 96–134, 136, 138, 143, 150, 151, 153, 155, 158, 160, 181, 184, 198, 224–26, 228, 234, 250, 280 Art 8�� 68, 102, 103, 129, 132, 280 Art 9��22, 25, 34, 49, 50, 53, 54, 71, 85, 97–113, 116–18, 120, 122, 123, 126, 128, 129, 131–35, 154, 168, 169, 174, 181, 225, 226, 268, 280, 281 (1)��106 (2)��105, 107, 110, 117, 121, 127, 174, 280 Art 10��29, 68, 102, 103, 113, 132, 280 Art 11��68, 104 Art 14�� 34, 101, 131–34, 150 Art 17��117 Protocol 1 Art 2��25 Protocol 11��101 Protocol 15 Art 1��113 International Covenant on Civil and Political Rights (ICCPR)��97 Preamble��45 Art 18��34, 97 International Covenant on Economic, Social and Cultural Rights (ICESCR) Preamble��45 United Nations Charter��45 Universal Declaration of Human Rights (UDHR)��13, 45, 97 Art 1��45 Art 18��34, 97 European Union EC Treaty Art 13�� 1, 31, 34, 136 EU Charter of Fundamental Rights��150 Art 1��31 Art 15��64 Art 21��34 Treaty of Lisbon��151

xxvi

Table of Legislation

Treaty on European Union Art 4(2)��153 Art 6(2)��151 (3)��150 Directives Directive 93/104 Working Time Directive��143 Directive 2000/34 Working Time Directive��143 Directive 2000/78 on equal treatment in employment and occupation (Employment Equality Directive) [2000] OJ L303/16�� 1, 11, 23, 31, 96, 97, 134–50, 152, 156, 159, 160, 162, 168, 175, 177, 181, 220–22, 225, 246, 248, 261, 277 Art 2(2)��137, 165 (b)��137 (3)��138, 246 (5)��137 Art 4��181, 183 (1)�� 137, 144, 145, 147 (2)�� 137, 142, 144–48, 177, 204, 220, 221 Art 11��138 Art 15��183 Austria Equal Treatment Act��139 Canada Charter of Rights and Freedoms�� 249, 256, 259, 261 Civil Marriage Act s 3��253 Constitution��34 Human Rights Act RSC 1985, c H-6��249, 261 Human Rights Act (Newfoundland) 2010 s 14(8)��256 Human Rights Act (Nova Scotia) 1989 s 6(c)(iii)��256 (d)��256 Human Rights Act (Price Edward Island) 2013 s 6(4)(c)��256 Human Rights, Citizenship and Multiculturalism Act (Alberta) RSA 2000, c H-14��249 s 11��249

Table of Legislation

xxvii

Human Rights Code (Manitoba) s 9��249 Human Rights Code (Ontario) 1990 s 24(1)(a)��256 France Labour Code��142 Art L 1121-1��142 Art L 1321-3��142 Loi no 2004-228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics��119 Germany Constitution��145 General Equal Treatment Act s 8��145 s 9��145, 149 India Constitution��34 Arts 25–28��41 Ireland Constitution Preamble��135 Employment Equality Act s 37(1)��147, 148 Equality (Miscellaneous Provisions) Act 2015��148 s 11��148 Netherlands General Equal Treatment Act (GETA)��145 § 2��145 South Africa Constitution��34 United Kingdom Statutes Abortion Act 1967 s 4(1)��207

xxviii

Table of Legislation

Children and Families Act 2014 s 131(2)(a)��193 Deregulation and Contracting Out Act 1994��195 Education Act 1944��216 Education Act 2011 s 62��218 Education and Inspections Act 2006��214 s 37��218 (2)��214 Education (Scotland) Act 1980��215 Employment Relations Act 1999��58 Employment Relations Act 2004��58 Employment Rights Act 1996 s 80F��193, 272 s 98��70, 223 (1)��223 (2)��223 (4)��99, 223 Equality Act 2006��23, 24, 159 s 77��14 Equality Act 2010��1, 2, 9, 14, 20–24, 26, 28, 30, 31, 63, 87, 151, 157, 159–215, 218–27, 263, 266–68, 274, 277, 282 s 13��164 s 19��165, 168 s 20��266 s 26(1)��186, 187, 191 (4)��186, 188 s 27��186 (3)��186 ss 39–60��161 s 53��163, 181 s 55��163 s 57(7)��164 ss 90–94��163 s 149��212 s 158��191 s 159��191 Sch 9�� 165, 175, 183, 204, 248 para 1��175–77, 181 (1)��174 (c)��183 para 2�� 148, 149, 179–82, 219 (4)��179 (5)��179 (6)��179 para 3�� 31, 175–78, 204, 219 Fair Employment (Northern Ireland) Act 1976��1, 41, 159

Table of Legislation

xxix

Fair Employment (Northern Ireland) Act 1989��1, 159 Government of Ireland Act 1920��159 Health and Safety at Work etc Act 1974��70 Human Fertilisation and Embryology Act 1990 s 38(1)��207 Human Rights Act 1998�� 32, 97–100, 134, 158, 169, 224, 225 s 2��100, 134 s 3��98 s 6��98, 99 (3)��98 s 13��98 Places of Worship Registration Act 1855��21 Police (Northern Ireland) Act 2000��80, 106, 184 Race Relations Act 1976��160, 165, 166 Schools Standards and Framework Act (SSFA) 1998�� 214–22 s 58��218 s 59��214, 218 s 60��215, 218 (5)(b)��219 (6)��215 s 124A��219 s 124B��219 Sex Discrimination Act 1975��166, 205 Sunday Trading Act 1994��194, 195 Sunday Working (Scotland) Act 2003��195 Trade Union and Labour Relations (Consolidation) Act (TULRCA) 1992��58 s 188��58 Statutory Instruments Employment Equality (Religion and Belief) Regulations 2003 (SI 2003/1660)��1, 14, 24, 122, 151, 159, 160, 162, 167, 175, 215 reg 2��162 (1)��23 Fair Employment and Treatmant (Amendment) (Northern Ireland) Regulations 2003 (SI 2003/520)��159 Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO) (SI 1998/3162)�� 1, 159, 183, 214 art 70��183 Fair Employment (Monitoring) (Northern Ireland) Regulations 1999 (SI 1999/148) Sch 3��184 Independent Schools (Employment of Teachers in Schools with a Religious Character) Regulations 2003 (SI 2003/2037)��219 Maternity and Parental Leave etc Regulations 1999 (SI 1999/3312)��58

xxx

Table of Legislation

Work and Families Act 2006, Shared Parental Leave and Leave Curtailment (Amendment) Regulations 2015 (SI 2015/552)��58 Working Time Regulations 1998 (SI 1998/1833)��58, 70 United States Americans with Disabilities Act 42 USC Sec 12111 (10) (1990)��240 Civil Rights Act 1964 42 USC § 2000e-2�� 229, 231, 237, 267 Title VII��229–33, 237, 244, 245, 248 s 701(j)��229, 238 s 702��235 s 703(a)(1)��231 (e)(1)��233, 235 (2)��237 (k)��231 (2)��232 Constitution��34, 236 Patient Protection and Affordable Care Act (ACA)��236, 237 Pennsylvania Human Relations Act��245

1 Religious Discrimination and Religious Freedom at Work I. Introduction Freedom of religion is well established as a fundamental human right in international and domestic law. Yet our understanding of the extent to which that freedom should be enjoyed in the context of the workplace is still developing. Legislation protecting against religious discrimination was introduced in the UK1 at the end of 2003,2 and is currently found in the Equality Act 2010, but the interaction of the non-discrimination provisions with broader issues of religious freedom is still not clear. The concepts of religious freedom and religious discrimination are clearly closely related: freedom of religion will be fettered if its exercise leads to discrimination at work.3 Yet the right to religious freedom is not absolute, and limits placed on religious freedom in the context of work can be justified when necessary to protect the rights of others. There will be times when religious freedom may exist in the world outside but may be legitimately restricted at work. The purpose of this book is to examine the interaction of the rules on religious discrimination with the right to freedom of religion and belief, and to contribute to the debate over the proper limits on religious freedom in the workplace.4 The aim of recent non-discrimination legislation would appear to be to protect the civil liberties as well as the social and economic rights of members of different religious groups. It was introduced to comply with an EC Directive on equality at work,5 in turn founded on Article 13, added to the EC Treaty in 1997, which provided powers for the EU to combat discrimination on grounds of sex, race, religion, disability age and sexual orientation. Viewed in the context of other 1 Protection was introduced in Northern Ireland in the Fair Employment Acts 1976 and 1989, and replaced by the Fair Employment and Treatment (Northern Ireland) Order 1998 (SI 1998/3162). 2 The Employment Equality (Religion and Belief) Regulations 2003 (SI 2003/1660), and replaced by the Equality Act 2010. 3 The relationship is discussed in more detail in Ch 3. 4 The focus of what follows is on the regulation of religious interests in the employment relationship. It does not consider religious discrimination in the provision of goods and services, as prohibited by the Equality Act 2010. 5 Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16 (the Employment Equality Directive).

2

Religious Discrimination & Freedom

equality and non-discrimination rights, the prohibition on religious discrimination can be seen to form part of a comprehensive system to address social and economic disadvantage, where such disadvantage is linked to membership of particular groups.6 Viewed from this perspective, the right to religious freedom at work is most likely to bring to mind images of employees from religious minorities being protected against direct discrimination caused by prejudice on the part of employers. It will also protect against indirect forms of discrimination, for example, where employers unreasonably refuse to adapt uniforms to be compatible with religious dress codes, or refuse to adapt working time to allow time off for major religious festivals. Including religious discrimination as a protected characteristic within the Equality Act 2010 also fills gaps in the protection against race discrimination, whereby discrimination against Sikhs and Jews is prohibited7 but discrimination against Muslims is not.8 However, the fuller picture of what non-discrimination on religious grounds may entail is more complex. This is largely because of the multi-dimensional nature of religious discrimination: religious individuals may not only be victims of discrimination, but may also discriminate against others. For example, religious groups may want to employ priests or other key workers, or may run a social or commercial enterprise in order to raise funds or as an element of their mission. They may want to keep themselves separate from non-members and may discriminate against o thers in order to do so. Moreover, discrimination may occur between individuals of d ifferent religions, or between those of the same faith but whose level of commitment or interpretation of the faith differs. Thus, prohibiting discrimination on grounds of religion in order to reduce economic disadvantage experienced by religious minorities introduces a range of further questions regarding the scope of religious freedom that should be enjoyed by religious employees and employers. A further reason for complexity in determining the correct parameters of religious freedom at work is that there are many different types of workplace. What is appropriate for a small religious employer may not be appropriate in a larger secular workplace, and may differ again with respect to public sector employment. Even within the public sector there may be diversity in terms of what is appropriate, as the borderline between the public sector and the private sector is not always clear.9 The fact that some publicly funded services are delivered through bodies that are religious in nature adds to the complexity here. For example, religious schools can be state funded and yet remain religious foundations, and religious 6 For a full discussion of the European policy regarding the Directive, see M Bell, Anti-Discrimination Law and the European Union (Oxford, OUP, 2002); for discussion of the role of religion in the EU, see R McCrea, Religion and the Public Order of the European Union (Oxford, OUP, 2010). 7 This is because it amounted to discrimination on grounds of ethnic group: Mandla v Lee [1983] 2 AC 548; Seide v Gillette [1980] IRLR 427. 8 Tariq v Young Case 247738/88. Muslims can come from a range of ethnic groups. 9 See Ch 3 and D Oliver, ‘Common Values in Public and Private Law and the Public/Private Divide’ [1997] PL 630.

Religion in the UK

3

groups are involved in delivery of a range of other services, such as adoption services and services for young people, which are either directly or indirectly funded by the state.10 The range of different types of employment in which religious freedom may be exercised is thus very wide, and means that it is difficult to determine a simple answer to the question of how religion should be treated at work. However, finding an answer will become increasingly necessary as the Government continues to support the involvement of faith-based organisations in the provision of public services.11 Complexity also arises from the fact that as well as protecting the positive rights of religious individuals and groups, the right to religious freedom may have a negative dimension. It may also encompass a right not to believe, and indeed a right to be free from religion or religious influence. Thus the interests of workers who do not wish to be subjected to the beliefs of a religious group or individual also need to be taken into account. Add to this the fact that there are many different religions and also different groups within those religions, and that the very definition of religion is contested, and it is clear that determining the proper scope for religious discrimination protection and religious freedom at work is not a straightforward task. Before considering the ways in which the law might respond to the range of difficulties that emerge when considering the proper scope of religious freedom in the workplace, it is important to identify some of the problems religious individuals experience in terms of employment, as well as some of the conflicts that may arise if religious freedom is to be protected at work.

II. Religion in the UK According to the 2011 Census,12 Christianity is the religion of 59.3 per cent of the population, although other data suggests that a much smaller percentage of the population are regular church goers.13 Around a quarter of the population declared themselves to have no religion, but this group is likely to be much larger if one adds in those who give Christianity as their religion for the purposes of the Census, but whose identity with the faith is largely nominal. In terms of other religions, the second largest religious group is Muslim (4.8 per cent of the population), followed by Hindus (1.5 per cent) Sikhs (0.8 per cent) Jews (0.5 per cent), Buddhists 10 See the work of the Catholic Children’s Society. See also the work of the Children’s Society, providing support for children and young people at risk, and which receives funding in part from central government (Annual Report 2014, The Children’s Society). 11 See, eg, the guidance for local government on working with faith groups, Ensuring a level playing field: Funding faith-based organisations to provide publicly funded services, available at . 12 Available at . 13 In a poll published in the Guardian (London, 12 April 2015) only 30% of those questioned described themselves as ‘religious’.

4

Religious Discrimination & Freedom

(0.4 per cent) and finally other religions such as Spiritualists, Pagans, Jain, Wicca, Rastafarian, Bahá’í, and Zoroastrian, where the percentages are very small. Around 7 per cent of those completing the Census refused to answer the question on religion, and it is clear that the number declaring a religion overall had declined since 2001. This decline was largely among those declaring themselves to be Christian. In addition, the number of those declaring a religious affiliation may not reflect active religious involvement. Nonetheless, the number of religious adherents remains high, and the range of beliefs is wide.14 Even within Christianity, the numbers attending religious services once a month are high, even if declining. Data for the Church of England suggests that one million people take part in a Church of England service each month, and data for the Catholic Church estimates the number of Catholics as around four million, with weekly Mass attendance at around one million.15 With respect to the minority religions, the numbers of adherents identified in the 2001 Census were in the tens of thousands and thousands.16 Within the religious groupings, a number of subgroups exist. Taking the example of Christianity, huge variations exist within the religion. Not only is there the divide between Protestant, Catholic and Orthodox churches, but even within the Protestant church there are Anglican, Baptist, Methodist and numerous other denominations. Within the groupings, some would not classify the others as truly Christian denominations. Thus the potential exists for discrimination between religions and within them. Of course, even among those declaring a religious affiliation, levels of commitment will vary enormously from the nominally religious to the ‘obdurate believer’.17 For some, belief is central to their sense of identity: it will determine many, if not most, aspects of their lives, and they will not yield their religious beliefs or practices to other interests. Others may identify themselves as believers, and may even attend religious services or ceremonies, but their beliefs may not be particularly strong, and religion may not be the primary focus for their sense of identity. Within this more flexible group, some may be committed to their religion but flexible in its practice. Others may come within the categories that have been identified as ‘believing without belonging’ and ‘belonging without believing’—terms developed by Davie18 to reflect the ambiguous and malleable 14 176,632 people identified themselves as Jedi Knights in the religion ‘write-in’ option, making this the most popular alternative faith. However the numbers were lower than in the 2001 census. See at . 15 Statistics available on the website for the Catholic Church of England and Wales, at and the Church of England website at . 16 Numbers were approximately: Spiritualists (39,000), Pagans (57,000), Jain (20,000), Wicca (12,000), Rastafarian (8,000), Bahá’í (5,000) and Zoroastrian (4,000). 17 The phrase comes from A Bradney, ‘Faced by Faith’ in D Oliver et al (eds), Faith in Law (Oxford, Hart Publishing, 2000). 18 G Davie, Religion in Britain Since 1945: Believing Without Belonging (Oxford, Blackwell, 1994); and G Davie, Religion in Britain: A Persistent Paradox (Oxford, Wiley-Blackwell, 2015).

Experience of Discrimination

5

nature of many adherents’ relationships with religious communities. For these more casual, or fuzzy, believers,19 who may identify with a religion but are neither actively committed to a religion, nor avowedly non-religious, conflicts between religious belief and the needs of the workplace may be minor or non-existent. Thus, for example, where a conflict arises between a work dress code and religious tradition, some may be happy to ignore the religious tradition in order to accommodate an employer’s demands. Similarly, many Christians will not believe that they are forbidden to work on a Sunday. Of those who do, some will refuse to work, while others may decide that they are prepared to work nonetheless, or at least are prepared to work on occasion. Clearly ‘obdurate believers’ are likely to have more difficulty in reconciling religion and work than those with more yielding views. The same may be said with respect to non-belief. Many lack their own religious beliefs but are happy to accept manifestations of belief by others. Others may be classified as ‘obdurate unbelievers’, who object to being subjected to others’ demonstrations of belief. Such individuals may not be happy to work in an environment where religious symbols are present, or where religious dress is worn by staff. To an extent, then, declared religious affiliation or non-affiliation may not tell us much about the effect of religious belief on the workplace because, although susceptible to general classification, the effects of religious belief or its absence are highly personal.

III. Experience of Discrimination According to data from the National Statistics Office, employment patterns vary according to religion. For example, in 2004, Jewish, Muslim and Buddhist people were most likely to be self-employed,20 and some religious groups were disproportionately represented in particular industries, such as Muslim men working in distribution, hotel and restaurant industries, and Jewish men being more likely than men from any other group to work in the banking, finance and insurance industry.21

19 See D Voas, ‘The Rise and Fall of Fuzzy Fidelity in Europe’ (2009) 25(2) European Sociological Review 155. 20 One third of Jewish people were self-employed, and one fifth of Muslims and Buddhists, compared with one tenth of the rest of the population: Office of National Statistics Focus on Religion, available at . 21 37% of Muslim men in employment were working in the distribution, hotel and restaurant industries, compared with 17% of Christian men and no more than 27% of men in any other group. More than one in seven Muslim and Sikh men worked in the transport and communication sectors, compared with less than one in ten from any other religious group. Jewish men were more likely than men from any other religion to work in the banking, finance and insurance industry: Office of National Statistics Focus on Religion, available at .

6

Religious Discrimination & Freedom

In the 2011 Census,22 economic activity varied by religion, with those with no religion having the greatest economic activity, and Muslims having the lowest rates. Of course, data relating to employment patterns and education of itself may not provide evidence of discrimination in employment, and economic activity levels may reflect different age profiles across religious groups, but nonetheless the uneven distribution of religious groups across employment sectors, and the different levels of economic activity, at the very least are not suggestive of employment being discrimination-free. The statistical suggestion of the presence of discrimination in the workplace is complemented by other evidence of workplace discrimination. A study commissioned by the Home Office and published in 200123 found discrimination both on grounds of religious status, such as refusal to employ people because of their religious beliefs, and on grounds of religious practice, such as refusal to accept a religious dress code. Employment was found to be one of the areas of life where religious individuals were most likely to experience unfair treatment.24 The 2001 study, undertaken before the introduction of protection against religious discrimination, was repeated in 2011.25 Despite the introduction of legal protection for religion and belief in the employment sphere, nonetheless, the level of reported experience of unfair treatment in employment on the basis of religion had declined but still remained substantial.26 Examples of discriminatory practices include being required to work on Saturdays or Sundays, being subjected to dress restrictions, suffering reduced promotion prospects and experiencing disrespectful attitudes towards religious customs. One example given in the 2001 Home Office report was that of a Muslim woman who believed she was unsuccessful in a job application because she refused to shake hands with the interviewer at the end of the interview. Other examples, from the 2011 study, include Hindu workers feeling that the refusal to drink alcohol created a social barrier at work; Sikh men being encouraged at interview to remove their turbans and cut their hair in order to fit in at work; and Baha’i employees not being allowed to take Baha’i holidays.27 Unfair treatment was identified at all stages of the employment process. For example, the 2011 study revealed discriminatory treatment at the pre-interview stage, with negative comments regarding religion being made at the shortlisting stage, as well as evidence from one participant that his job application had been rejected when submitted with a ‘Muslim sounding name’ but accepted when resubmitted using the same qualifications

22 See Office of National Statistics, Full story: What does the Census tell us about religion in 2011? available at . 23 P Weller et al, Religious Discrimination in England and Wales, Home Office Research Study No 220, February 2001. 24 The other areas identified as being most likely to give rise to experiences of unfairness were education and the media. 25 See P Weller et al, Religion or Belief Discrimination and Equality (London, Bloomsbury Academic, 2013). 26 Ibid at 99. 27 Ibid at 102.

Experience of Discrimination

7

but a different name. In work, discriminatory treatment included offensive and insensitive behaviour. With regard to dress codes, although incidents still seem to persist, the suggestion is that these are infrequent, and are linked more to the attitudes of individuals rather than to workplace policies. In the 10 years between the two studies of religion and belief in Britain, the level of discrimination does seem to have declined somewhat. Participants in the 2011 study stated that the introduction of the legal protection had created greater awareness among employers about the needs of a diverse workforce, and this was reflected in the creation of new policies and training to address diversity and inclusivity at work. However, issues still remain, with unfair treatment still occurring, albeit that it is sometimes hidden and subtle.28 Incidents of unfair treatment were reported by all religious groups, including Christians, but Muslims, Hindus and Sikhs reported a consistently higher level of such treatment. The evidence of discrimination on the basis of religion and belief in the workplace is replicated by research conducted for the Equality and Human Rights Commission (EHRC). In 2015, the EHRC published the findings of a large-scale call for evidence from individuals and organisations about how their religion or belief, or that of other people, may have affected their experiences in the workplace and in using the services and facilities they need in everyday life.29 The call for evidence had garnered a wide range of responses, including both positive and negative experiences. Many positive experiences were recounted, such as workplaces in which religion and belief were openly discussed, in which employers were described as being supportive of the needs of religion and belief, and where religious individuals reported feeling comfortable and supported at work, with time off allowed for religious holidays. Nonetheless, many negative experiences were also reported, including a report of an offer of a job being retracted after religious holidays were discussed, and of recruitment being restricted to those who went to the same church as the employer. Other examples included difficulty in taking time off for religious observance; a perception of being overlooked for promotion because of religion; an employee’s feeling the need to choose between religious dress and a job; and pressure experienced to keep religious views hidden at work. The findings from the call for evidence also included examples of some of the conflicts and tensions that can arise regarding the protection of religion and belief at work, and provides an illustration of the difficulties some employers have faced in balancing conflicting interests at work. For example, the EHRC findings include atheist staff ’s reporting resentment about religious staff ’s being given preference with regard to time off, and the perception that Christian and Muslim staff had taken over multi-faith rooms. In addition the report included accounts of religious employers who felt that the law was too restrictive, and who would welcome additional freedom to recruit staff who share their religious views. 28

Ibid at 108. M Mitchell and K Beninger (with E Howard and A Donald), Religion or Belief in the Workplace and Service Delivery (Manchester, Equality and Human Rights Commission, 2015). 29

8

Religious Discrimination & Freedom

This evidence suggests that although the legal protection has been in place for over a decade, nonetheless, experiences of discrimination on grounds of religion and belief in the workplace remain commonplace.

IV. Tackling Religious Discrimination The examples outlined in the reports and cases discussed above make clear that the experience of religious discrimination in the workplace is a reality for many people. However, moving from identifying the presence of a problem to determining the best way to tackle it is never easy. In the case of religious discrimination, particular difficulties arise because of the fact that any rights created to protect the religious freedom of individuals in their working lives will also apply to those of no religion. Any protection against religious discrimination will also apply equally to religious employers who are restricted in their freedom to discriminate in favour of religious staff. As a result of the restrictions which non-discrimination protection imposes on the freedom of religious bodies to choose staff who share their religion, some religious groups voiced fierce opposition to the non-discrimination protection, even though they might have been thought to have been the intended beneficiaries of it.30 The reason for the opposition was two-fold. First was a concern that religious bodies would not be able to staff their organisations with fellow believers. Although exceptions apply where being of a particular religion is genuinely necessary for the job, some religious bodies have felt that the exemptions are too narrow. A second concern is that the preference of religious bodies for fellow believers may result in other forms of discrimination, such as discrimination on grounds of sexual orientation, protection against which was introduced at the same time as the religious discrimination regulations. Both these concerns arise from the inherent conflict that can arise between eradicating less favourable treatment on grounds of religion and protection for religious freedom in a broader sense. Whilst these concepts are inherently linked, they can also be seen to be in tension.31

Conflicts Arising from the Exercise of Religious Freedom at Work The first area of conflict between non-discrimination rights and the right to religious freedom concerns the exception to the non-discrimination rules for religious bodies, to enable them to appoint religious staff to undertake work of a religious nature. If the exception is too broad, and any employer can require staff to be of 30 For example, see the briefing of the Christian Institute, European Threat to Religious Freedom (London, The Christian Institute, 2001). 31 See further discussion at p 43.

Tackling Religious Discrimination

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a particular religion because it deems the employment to be religious, this would clearly create a large lacuna in the protection available. It would be particularly difficult where employers are in sectors such as education, where a significant proportion of employers are religious in nature. To allow church schools to require all staff to be Christian, for example, could significantly reduce the employment prospects of non-Christian teachers.32 However, restricting any exception to those who carry out an explicitly religious role at work means that religious groups may have to employ those who do not share their beliefs. This restricts the freedom of religious groups to employ fellow believers. Such restrictions do not operate for other types of organisation, who can demand loyalty to the employer’s ethos from all staff without being subject to legal scrutiny in the same way. For example, a development agency can quite legitimately require all staff to be committed to the aims of the agency, without breaching any discrimination rules. However, a requirement for a religious commitment imposed on all staff in a religious organisation may be too extensive to come within the scope of the exception for religious employment provided in the non-discrimination provisions.33 This conflict, however, can be exaggerated. The Equality Act 2010 does allow for religious requirements to be imposed in order to maintain the religious ethos of a religious employer. Nonetheless, these must be proportionate, a concept discussed in detail in later chapters, and this effectively leaves open for determination by a tribunal the question of whether it is appropriate to impose such a requirement, taking into account the particular features of the job and the organisation. Perhaps a more valid concern, however, is that uncertainty over whether a particular job is covered by the exception will lead to religious employers erring on the side of caution and opening up to those of different beliefs jobs which may not, strictly, need to be opened up. In this way it may be that the religious freedom of groups to employ or work with those of the same religion is reduced, albeit without being specifically legally limited, as employers impose more far-reaching limits on themselves than those which are required by the law. However, although valid, concerns about the consequences of incorrect understandings of the law are of a different order to concerns about the correct ambit of the law, and it is the latter which is under consideration here. Another area of serious contention is the difficulty caused where rights to religious freedom conflict with other rights or interests, such as rights to equality on grounds of sexual orientation, or the interest in being free from religion. Taking sexual orientation equality first, there is a clear conflict between religious freedom and non-discrimination on grounds of sexual orientation with regard to certain religious groups. Some (but not all) Christians, Jews and Muslims oppose homosexuality on religious grounds, believing it to be forbidden. They may be unwilling to employ homosexual staff, to work with homosexual staff or to offer services to homosexual clients. These different types of sexual orientation discrimination 32 33

See discussion at pp 214–222. See discussion at pp 174–183.

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Religious Discrimination & Freedom

will cause different difficulties to organisations. Religious employers may refuse to employ people because they are gay. This may be on grounds of sexual orientation, or on the ground of religion, for example if they believe that the individual cannot be in good standing with the religion if they live in a homosexual relationship. The difficulties are not limited to religious employers. Secular employers will need to decide how to deal with religious individuals who will not provide services to gay clients, or who have religious objections to working closely with gay staff. For example, a social worker could refuse to assess a gay couple who are seeking to adopt. Or a religious employee may express a preference not to share an office with a gay member of staff. Such staff could argue that their religious beliefs are not being respected if their views are not taken into account. On the other hand, accommodation of such views will involve sexual orientation discrimination. How these tensions may be resolved is discussed in the following chapters. Other difficulties can arise in terms of conflict between the rights of religious and non-religious employees. Some staff may wish to work in a religiously neutral atmosphere. It is impossible to reconcile their interests with those of religious staff who wish to manifest their religious affiliation in the way they dress or behave at work. If an employer does not let an employee wear religious dress at work, this may be indirectly discriminatory on grounds of religion, unless it can be justified, for example on grounds of protecting the interests of those who want to work in a neutral atmosphere. Similarly, if an employer does not let an employee offer services to the public in religious dress this may indirectly discriminate against the employee on grounds of religion, unless it can be justified in the name of those who want neutral service provision. It is not at all clear how such conflicts should be resolved: one individual’s religious preference may offset another individual’s secular preferences.

Resolving the Conflict in the Workplace The conflicts identified above involve a range of individual and group rights, based on religious interests and on equality rights. The context in which this conflict is played out is the workplace, a forum in which rights are rarely enjoyed in absolute terms. For example, the right to freedom of religion can, arguably, be protected by the freedom of an individual not to enter a particular workplace. This is because while an individual may have a clear right to freedom of religion, he or she does not have a clear right to exercise that freedom at work. However, to restrict religious freedom to the world outside work is to restrict religious freedom to a significant extent and would certainly harm the economic and social interests of religious individuals. Finding some compromise whereby religious individuals can work, where to do so does not disproportionately interfere with the rights of others, must be the aim of any legal regulation of the issue. Finding such a compromise is the aim of much of what follows. The third chapter considers why religion should be protected in the workplace at all. It suggests

Tackling Religious Discrimination

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that protection is justified on the basis that it helps to uphold fundamental interests in equality, autonomy and human dignity, but that protection may be limited where proportionate, taking into account other conflicting rights. The chapter also examines the concept of proportionality and how it should be determined in the context of the workplace. It seeks to identify a range of factors of relevance when deciding the proper scope for protection, and to develop a model for determining proportionality in the context of religion and work. This model is then used as a measure of the adequacy of the legal protection available for religious interests at work. The fourth chapter assesses the protection of religion and belief in Europe, both under the European Convention on Human Rights and under EU Directive 2000/78 (the Employment Equality Directive). Subsequent chapters consider the current workplace protection in the UK against discrimination on grounds of religion and belief, and compares this protection with that available in the United States and in Canada. Before turning to consider these issues, however, a fundamental issue of definition must be addressed: What is meant by religion and belief? It is not intended to provide a comprehensive review of the question here, but a working definition needs to be produced for the purposes of the discussion in the rest of what follows, and this is the subject of the next chapter.

2 Seeking a Definition of Religion and Belief Before looking at the reasons for protecting religion at work, the preliminary question of how to define religion needs to be considered. The question of what constitutes a religion is the subject of much debate, which is well rehearsed elsewhere,1 and an exhaustive examination of the question will not be undertaken here. It is important, however, to begin with some attempt to define one of the main terms to be used throughout this book. This will be followed by an overview of the approach to definition taken by courts in the context of discrimination on grounds of religion and belief.

I. What is ‘Religion’? Although there are many recognised religions in the world, simple attempts to define the term ‘religion’ almost immediately run into difficulty. A belief in God, which may unite Judaism, Islam and Christianity, is clearly insufficient, as some religions such as Hinduism are polytheistic. A move to ‘belief in God or gods’ immediately comes up against the fact that Buddhism does not include belief in a ‘god’. And yet these are all recognised as major world religions, and they will have been within the contemplation of those who drafted the various international

1 For the debate in the USA on the definition of religion, see: ‘Toward a Constitutional Definition of Religion’ (1978) 91 Harv LR 1056; K Greenawalt, ‘Religion as a Concept in Constitutional Law’ (1984) 72 California LR 753; G Freeman III, ‘The Misguided Search for the Constitutional Definition of Religion’ (1983) 71 Georgetown LJ 1519; D N Feofanov, ‘Definition of Religion: An Immodest Proposal’ (1994) 23 Hofstra LR 309; R R French, ‘From Yoder to Yoda: Models of Traditional, Modern and Post Modern Religion in U.S. Constitutional Law’ (1979) Arizona LR 41; B Clements, ‘Defining “Religion” in the First Amendment: A functional approach’ (1989) 74 Cornell L R 352; R O Frame, ‘Belief in a Non-Material Reality—A Proposed First Amendment Definition of Religion’ (1992) Univ of Illinois LR 819; J Choper, ‘Definition of “Religion” in the First Amendment’ (1982) Univ of Illinois LR 579; M McConnell, ‘The Origins and Historical Understanding of Free Exercise of Religions’ (1990) 103 Harvard LR 1409. See also: W Sadurski, ‘On Legal Definitions of Religion’ (1989) 63 Australia LJ 834; and C G Hall, ‘“Aggiornamento” Reflections upon the Contemporary Legal Concept of Religion’ (1997) 28 Cambrian LR 7.

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documents protecting the right to freedom of religion. The difficulties are compounded once one considers less well known religions such as various pagan traditions, and the rise in new religions whose traditions and beliefs may be undocumented and unfamiliar to the general population. And what of the ‘religion’ adhered to by only a handful or even only one person? Moreover, the question arises as to whether other belief systems, such as veganism, pacifism or communism, are protected, and whether their protection is predicated on them being classified in some way as analogous to religion. What is significant about the court decisions which have dealt with such questions is the marked reluctance of courts to get involved in creating an all-encompassing definition. Indeed, the major international human rights documents do not give any detail on what is meant by religion. Under the European Convention on Human Rights (ECHR), the protection extends to ‘religion or belief ’, thus avoiding the need to identify exactly what constitutes religion, in contrast to other forms of belief. Nonetheless, to qualify for protection, the European Court has required that beliefs ‘attain a certain level of cogency, seriousness cohesion and importance’.2 Similarly, the Universal Declaration of Human Rights (UDHR) avoids a definitive statement about what constitutes religion, in favour of broader terminology, which includes theistic, non-theistic and atheistic beliefs.3 It has been suggested that, in the case of the ECHR, the failure to produce a clear definition of terms was deliberate, given lack of agreement at the time of drafting, in particular over whether atheism should be included as a religion or belief.4 Yet the lack of definition does not appear to have hampered the Court and Commission on Human Rights from reaching decisions in cases regarding atheism,5 Druidism,6 Divine Light Zentrum,7 Scientology,8 Krishna Consciousness,9 pacifism10 and veganism.11 It can be argued that the lack of a clear definition has some advantages.12 In the first place, in many cases, the question of whether or not beliefs are religious in nature does not need to be answered precisely, as the case can be disposed of on

2

X, Y and Z v UK (1982) 31 D&R 50, and Campbell and Cosans v UK (1982) 4 EHRR 293. See ‘General Comment No 22 (48) on Article 18 UDHR by the UN Human Rights Committee’ (1994) 15 Human Rights LJ 233, para 2. 4 C Evans, Freedom of Religion under the European Convention on Human Rights (Oxford, OUP, 2001) 51; and C Evans, ‘Religious Freedom in European Human Rights Law’ in M Janis and C Evans (eds), Religion and International Law (The Hague, Martinus Nijhoff, 1999 and 2004) 389. 5 Angelini v Sweden (1988) 10 EHRR 123 (Eur Comm HR). 6 Chappel v UK (1988) 10 EHRR 510 (Eur Comm HR), Pendragon v UK (1998) EHRR CD 179. 7 Swami Omkaramamda and the Divine light Zentrum v Switzerland (1981) 25 D&R 105 (Eur Comm HR). 8 X and the Church of Scientology v Sweden (1976) 16 D&R 68. 9 ISKCON v UK (1994) 76A D&R 90. 10 Arrowsmith v UK (1978) 19 D&R 5. 11 H v UK (1993) 16 EHRR CD 44. 12 See W Sadurski, ‘On Legal Definitions of Religion’ (1989) 63 Australia LJ 834. 3

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other grounds. Indeed, when one considers the ECHR case law, it is clear that at times cases have been disposed of on other grounds, without addressing in depth whether the belief system in question was ‘religious’. Where a ruling is required, if there is no set definition, there is no danger of courts being prevented from finding that a belief system is religious because of an outdated or under-inclusive definition. Courts are then in less danger of discriminating against newly established religions or those of minority groups. Without a set definition, courts can determine on the facts before them whether the beliefs should be protected, and they can adapt the definition to the circumstances, and take into account modern developments in our understanding of religion. A further reason for taking the view that no formal definition is needed is the fact that neither the ECHR, nor the Equality Act 2010 restricts protection only to ‘religion’. The ECHR refers to ‘religion or belief ’ and the Equality Act covers religion as well as ‘religious or philosophical belief ’.13 This means that the exact dividing line between religious and non-religious beliefs does not need to be drawn, and beliefs such as humanism and atheism will be covered. Despite their clear non-religious content, it is clear that these beliefs are intended to be protected, and yet equally clear that other non-religious views, such as political views, are not. Thus the coverage of belief as well as religion does not avoid the difficulty of definition; it just shifts location. The divide is located between ‘religious or philosophical beliefs’ which are subject to special protection, and other beliefs which are not. In order to determine on which side belief systems such as ‘transcendental meditation’ or ‘veganism’ should fall, one must still determine what is meant by the core terms ‘religion’ and ‘philosophical belief ’. Tempting as it may be to avoid definition altogether, to do so leaves courts acting in a vacuum, and without any principles to guide them. It becomes difficult to predict how a court will make its assessment, and impossible to challenge any individual decision. Moreover, minority religions are particularly likely to be left unprotected.14 A working definition of religion is therefore required, in order to provide a principled basis for deciding cases, and to help determine when a philosophical belief will qualify for protection. Any definition needs to be broad enough to be able to respond to new religions, but also clear enough to be applied to individual cases.15 A full and lively academic debate exists surrounding the ‘proper’ definition of religion, a debate which can only be touched on here, in order to explain the definition which will be used in what follows.

13 The Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660) originally covered ‘similar philosophical belief ’. This was amended to remove the word ‘similar’ by s 77 of the Equality Act 2006, and the new wording was carried forward into the Equality Act 2010. 14 See ‘Toward a Constitutional Definition of Religion’ (1978) 91 Harv LR 1056. 15 See P Cumper, ‘Freedom of Thought, Conscience and Belief ’ in D Harris and S Joseph (eds), The International Covenant on Civil and Political Rights and the United Kingdom (Oxford, Clarendon Press, 1995) 359.

What is ‘Religion’?

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The literature on the subject suggests three approaches to the definition of religion. First is a content-based definition, concerned with identifying the core content of beliefs which makes them religious in nature. Second is an attempt to reason by analogy with those religions which are universally recognised. The idea is to produce a list of key indicators of religion, against which to test those that are less well known. The final approach is to look at the purpose of protecting religion, and to work towards a purposive definition.

Content-based Definitions The simplest way to define a religion is to set out a series of beliefs which any religion will contain. The approach is seen in some of the early cases in the UK in which religions are defined as relating to a belief in God or some other supreme being. Clearly such a theistic definition is inadequate, as it fails to reflect a wide range of spiritualities which do not rely on the concept of an external ‘supreme being’. Nonetheless, more inclusive content-based definitions of religion may be possible. One suggestion, based on the writing of Paul Tillich,16 is that religion relates to a person’s ‘ultimate concern’. The idea is that, if we look deep enough, we all have concerns which are ‘ultimate’, in that they are absolute, unconditional and unqualified. These ‘ultimate concerns’ give meaning and orientation to our lives. Clearly the test is subjective; pretty much any belief can suffice as long as it is ‘ultimate’ for the believer, and in effect, everyone has a ‘religion’ so defined. However, this subjectivity may be an advantage. Objective tests of religion run the danger of failing to protect minority or new religions because of their failure to meet the ‘objective’ standards designed by the ‘majority’.17 A definition based on ‘ultimate concern’ is capable of including less well-established religions, as well as philosophical movements such as humanism or atheism, which do not have traditional religious roots. However, the very inclusiveness of the definition is also its weakness. The suggestion that everyone has an ‘ultimate concern’ may be true, but by classifying all such views as ‘religious’ it leaves no space for those who identify themselves as areligious. Moreover, the definition seems entirely subjective, and somewhat opaque, with no principled way to distinguish between, for example, an ‘ultimate concern’ with the performance of a particular football team18 and an ‘ultimate concern’ with the tenets of Islam.19

16

P Tillich, Dynamics of Faith (New York, Harper & Row, 1958). See ‘Toward a Constitutional Definition of Religion’ (1978) 91 Harv LR 1056. 18 Although see ACAS guidance published in advance of the 2016 European Cup advising managers on how to ‘accommodate’ staff requests for absence during the tournament: 19 T Macklem, ‘Reason and Religion’ in P Oliver et al (eds), Faith in Law: Essays in Legal Theory (Oxford, Hart Publishing, 2000) 79. 17

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Beyond the idea of religion as an ‘ultimate concern’, there have been many other suggestions of alternative content-based definitions. For example, Choper20 has defined religion as concerning beliefs that have ‘extra-temporal’ consequences. Such a definition may help explain why religious adherents may make choices that otherwise seem totally irrational to the non-believer. For example, a decision to refuse life-saving medical treatment is not irrational if understood as a means of avoiding eternal damnation. The definition also provides a reason for the protection of religion: failure to obey religious rules has, in the view of the religious person, consequences beyond those that are visible and able to be experienced in this world. Requiring someone to act in a way that they believe will have negative consequences which can last for eternity involves a serious injury to their well-being, which is difficult to equate with any dis-benefit understood in secular terms. However, although the concept of ‘extra-temporal consequences’ may prove useful in understanding some religious activity, as a determinant of whether a belief system is religious or not, it risks being under-inclusive: any belief system that does not include a belief in some sort of after-life will be excluded.21 A broader content-based definition, suggested by Feofanov,22 is that religion is ‘a manifestly non-rational (ie faith based) belief concerning the alleged nature of the universe, sincerely held’.23 The definition does not require any particular organisational form or structure for a belief to be religious, but relies largely on non-rationality as the distinguishing feature of religion. The non-rationality of beliefs may provide the reason for protecting the beliefs, but it is not the non-rational nature of the beliefs alone which is the determining feature of religion under this definition. The writer points out that the non-rational beliefs must be about the nature of the universe, questions relating to our place in the universe and the meaning of our lives and deaths. ‘[N]on-rational beliefs about tomorrow’s weather’ should not, without more, be defined as religious. The definition suggested by Feofanov is attractive, as it seems to be capable of explaining the difference between an ‘ultimate concern’ with football, and an ‘ultimate concern’ with Islam. However, although these definitions based on the content of the belief system may be helpful, the difficulty remains that they risk being under-inclusive, and in some cases potentially over-inclusive too. On the one hand, a definition can be too detailed, with the consequence that it is unable to respond to developments in religious and philosophical thinking. It can also be based on very orthodox understandings of religion. On the other hand, a definition that is broad enough to encompass a full range of religions that exist, or may exist in future, can become

20

J Choper, ‘Definition of “Religion” in the First Amendment’ [1982] Univ of Illinois LR 579. further criticism of Choper’s approach, see B Clements, ‘Defining “Religion” in the First Amendment: A functional approach’ (1989) 74 Cornell LR 352. 22 DN Feofanov, ‘Definition of Religion: An Immodest Proposal’ (1994) 23 Hofstra LR 309. 23 Ibid at 385. 21 For

What is ‘Religion’?

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too opaque and meaningless: as with refusing to define at all, we are given no real principled basis for determining the content of religious beliefs. As a result of these difficulties, courts have been wary of providing content-based definitions of religion. Instead, an alternative approach has been suggested: defining religion by analogy with those religions that are universally recognised as religions.

Defining Religion by Analogy24 Defining religion by analogy with those religions that are well-recognised is an attractive approach. The idea here draws on the approach outlined by H L A Hart in The Concept of Law,25 that most terms have a ‘penumbra of uncertainty’ surrounding the outer parameters of the meaning of the term; the extent of the penumbra can be determined by reasoning by analogy with the core meaning. For example, in discussing whether international law is really law, Hart compares it with municipal law, to see whether it shares its features. No one feature is sufficient of itself to determine whether a system is ‘legal’, but if the two systems share enough important features then international law can be said to be legal in the same way as municipal law. A similar approach is used by Wittgenstein26 to show that ‘games’ have no common shared feature, but that they share a family of resemblances. Such an approach to defining ‘religion’ overcomes the difficulties identified above, whereby each definition can be undermined by pointing to a set of ‘religious’ views which do not seem to match the definition. Instead, a number of criteria are given which are neither necessary nor sufficient in themselves to define religion but which, if they are present in sufficient quantity, can indicate that a belief system is religious, even though another religion may share none of the same criteria. A range of criteria have been identified that indicate that a belief system is religious, largely drawing on the features of well-established major world religions. Criteria include:27 a belief in God or a supreme being; a comprehensive view of the world and human purposes; a belief in an after-life; communication with ‘God’ via worship and prayer; a particular perspective on moral obligations derived from a moral code or from a conception of God’s nature; practices involving repentance and forgiveness of sins; ‘religious’ feelings of awe, guilt and adoration; the use of sacred texts; and organisation to facilitate the corporate aspects of religious

24 See, in particular, K Greenawalt, ‘Religion as a Concept in Constitutional Law’ (1984) 72 California LR 753; and G Freeman III, ‘The Misguided Search for the Constitutional Definition of Religion’ (1983) 71 Georgetown LJ 1519. 25 H L A Hart, The Concept of Law (Oxford, Clarendon Press, 1961). 26 L Wittgenstein, Philosophical Investigations (Oxford, Basil Blackwell, 1953). 27 See K Greenawalt, ‘Religion as a Concept in Constitutional Law’ (1984) 72 California LR 753.

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practice and to promote and perpetuate beliefs and practices. A further criterion identified in one major US case, which suggests definition by analogy, is that the test of belief … is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by orthodox belief in God.28

The idea is that many of these criteria are present in the ‘core’ religions that are well accepted as religions. However those who advocate the approach29 are clear that no single feature is determinative: should one or more be missing, the belief system can still be a religion. So polytheist or atheist beliefs may still be religious, as would beliefs which do not link a claim to transcendental reality to a particular moral practice. Less well known ‘religions’ can be tested against the list. If they share sufficient characteristics with what we can agree to be religions, then they can be classified as religions too. This approach has several advantages over the content-based definitions of religion, largely due to its flexibility. It is not prescriptive, and is capable of adapting over time to reflect developing understandings of religion. However, it has been criticised on a number of grounds. First, it can be criticised on the basis that it runs the danger of encouraging a view that some religions are superior to others.30 The parallels between the list and mainstream understandings of Christianity are clear. It may not be appropriate, for example, for Wiccans to have to show similarities and analogies with Christianity, Islam and Hinduism before being classified as ‘religious’. The other criticism is that reasoning by analogy is inherently opaque and vague. Analogies can be strong or weak, and it is not clear how strong the analogy has to be between a well-established religion and a less well-known set of beliefs, before the set of beliefs can be classified as ‘religious’. Does the analogy have to be clear, or is a loose analogy sufficient?31 Thus, whilst helpful, something more may be needed before an approach based on reasoning by analogy can achieve sufficient certainty and cohesion. To answer some of these problems, a purposive approach to defining religion or belief may be needed.

The Purposive Approach to Definition If we can identify why we need to protect certain belief systems, this may help to create more certainty, in particular because it will provide a rationale for including any

28

US v Seegar 380 US 163 (1965). Greenawalt, ‘Religion as a Concept in Constitutional Law’ (1984) 72 California LR 753; and CG Hall, ‘“Aggiornamento” Reflections upon the Contemporary Legal Concept of Religion’ (1997) Cambrian LR 7. 30 See T Macklem, ‘Reason and Religion’ in P Oliver et al (eds), Faith in Law: Esays in Legal Theory (Oxford, Hart Publishing, 2000) 79. 31 See D N Feofanov, ‘Definition of Religion: An Immodest Proposal’ (1994) 23 Hofstra LR 309; B Clements, ‘Defining “Religion” in the First Amendment: A functional approach’ (1989) 74 Cornell LR 352. 29 K

What is ‘Religion’?

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of the criteria by which we define religion, and for giving some more weight than others when belief systems share some but not all of the characteristics of religion. The reasons for protecting religion through the legal system will be considered in more detail in later chapters, but they are briefly summarised here in order to provide a general purpose for protecting religion that can aid the definition of terms. One reason may be that, historically, religion has been protected as a political and pragmatic response to religious conflict. A second reason relates to religion as an expression of personal autonomy and identity; or alternatively as an expression of group identity. In either case, religious freedom can be viewed as part of a general cultural diversity which as a plural, liberal society we choose to celebrate and affirm. However, if this is the only purpose for protecting religion, there is no principled reason to distinguish between ‘religious belief ’ and other beliefs, such as a passionate belief in the importance of football or a dedication to English country dancing. Macklem, in ‘Faith as a Secular Value’,32 addresses the question of why religion is given special protection, and produces an answer that may help provide a rationale for including particular criteria within the defining list. His argument is complex, but the basic thesis is that it is the fact that religious views are based on faith, rather than reason, that gives rise to the need to protect them. According to Macklem, religious views are not susceptible to reasoned judgment, and therefore cannot be changed by recourse to reason. Yet despite their irrational nature, the views can be said to have a secular value, and therefore to be worthy of protection via a rational legal system. Their value lies in the fact that these faith-based views also enable their holders to come to terms with matters that are unknowable and beyond reason, matters such as the nature and purpose of life. By helping people come to terms with the unknowable, faith can help increase the well-being of believers. Although some people deal with the unknowable issues of life by recourse to reason, some do so by faith. The value of religion, in Macklem’s view, then, is its ability to help those individuals to deal with the unknowable in life, and thereby increase their sense of well-being. This value is not dependent on the question of whether the view of the unknowable is itself correct, nor is it dependent on whether the religion actually increases well-being: the capacity to increase well-being is sufficient. The key issues in Macklem’s version of the value of religious belief are that the views are faith-based, and therefore not susceptible to reason; and yet those views are of value because of the role they play in individual lives. The difficulty for those with such beliefs is that the beliefs cannot be tested according to the usual rules of the legal system, a system which is based purely on rational argument. Thus, when

32 T Macklem, ‘Faith as a Secular Value’ (2000) 45 McGill LJ 1. For further discussion, see F Ahmed, ‘The Value of Faith as a Justification for the Protection of Religious Freedom: a Critique of a New Fideistic Account’ (2010) 38(2) Religion, State and Society 169.

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tested within the rational legal system, the ‘religious’ will often lose. Unless those views have a value, the fact that they will lose is of no matter, hence the importance of being able to place value on ‘religious’ belief. Clearly it is not all ‘irrational’ beliefs that need protection: a belief in the importance of viewing a weekly football match is, after all, also irrational. However, those beliefs that enable individuals to deal with the unknowable in life are of some objective value to the secular world, but their irrational nature makes them vulnerable to being disregarded by the rational legal system.33 Thus, the function and purpose of protection of religious beliefs within the legal system is that protection enables non-rational views about the nature of the world, views that have an effect on some individuals’ ability to make sense of the world, to be protected via an otherwise rational system. Such an approach views the importance of religion as based in its role in fulfilling individual dignity and autonomy. In sum, the argument is that some people’s understanding of the world and concept of the good is based on non-rational foundations. Yet protection of individuals’ autonomy in choosing and following their own concept of the good is fundamental to the concept of dignity, equality and autonomy on which human rights protection is based.34 Clearly, a purposive definition of religion runs the danger of circularity. If we redefine the purpose of religion to be ‘protecting beliefs of significant importance to an individual’s sense of identity’ we may be able to define ‘religion’ to include anything that may be important to people, including pastimes such as football or country dancing. However, looking for a meaningful purpose for protection, and using this to provide a rationale for determining which characteristics to use to define religion, does create a more complete definition than that provided by either content-based or analogy-based definitions alone.

Defining Religion: The Approach of the UK Courts Although religion is protected in various ways in law, the courts have rarely ventured to provide a definitive definition of religion, and there are no appellatelevel decisions on the definition of religion under the Equality Act 2010. However, in R (on the application of Hodkin and another) v Registrar General of Births, Deaths and Marriages35 the UK Supreme Court did provide a definition of religion, in the context of the law on registration of marriage. Hodkin concerned the question of whether a church of the Church of Scientology could be recorded as a ‘place of meeting for religious worship’, which would enable it to be used to perform a valid

33 This point is also made in P W Edge, Legal Responses to Religious Difference (The Hague, Kluwer Law International, 2002) Ch 1. 34 See fuller discussion in Ch 3. 35 R (on the application of Hodkin and another) v Registrar General of Births, Deaths and Marriages [2013] UKSC 77.

What is ‘Religion’?

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ceremony of marriage under the Places of Worship Registration Act 1855. Whilst it is not directly applicable to the definition of religion under the Equality Act 2010, nonetheless it represents a clear development of a legal definition of religion. It has been used in the interpretation of ‘religion’ in other legal contexts,36 and is likely to be influential in the discrimination context. The definition adopted by Lord Toulson in Hodkin drew on reasoning used in an Australian High Court case, The Church of the New Faith v The Commission of Pay-roll Tax (Victoria),37 also involving Scientology. The Church of the New Faith took an approach that amounted to something of a compromise between content-based definitions and those that suggest reasoning by analogy. A list of characteristics of religious beliefs was developed, and the potential religion was tested against that list. Wilson and Deane JJ stated that no single characteristic is determinative in defining religion, but that the following criteria were helpful in characterising beliefs as religious: a belief that reality extends beyond that which is capable of perception by the senses; that the ideas relate to Man’s nature and place in the universe and his relation to things supernatural; that the ideas are accepted by adherents as requiring or encouraging them to observe particular standards or codes of conduct, or to participate in specific practices having supernatural significance; that adherents constitute an identifiable group (even if loosely knit); and that adherents themselves see the ideas as religious.38 This approach was followed in the UK Supreme Court decision in Hodkin. Lord Toulson relied on Wilson and Deane JJ’s definition in The Church of the New Faith, and described religion as follows: [Religion is] a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system. By spiritual or non-secular I mean a belief system which goes beyond that which can be perceived by the senses or ascertained by the application of science. I prefer not to use the word ‘supernatural’ to express this element, because it is a loaded word which can carry a variety of connotations. Such a belief system may or may not involve belief in a supreme being, but it does involve a belief that there is more to be understood about mankind’s nature and relationship to the universe than can be gained from the senses or from science. I emphasise that this is intended to be a description and not a definitive formula.39

The list of criteria in Hodkin is similar to the list in The Church of the New Faith, although the Hodkin list is shorter, relying mainly on the first two of Wilson and

36 For example the United Grand Lodge of England v Commissioners of HM Revenue and Customs [2014] UKFTT 164 (TC) (3 February 2014). 37 The Church of the New Faith v The Commission of Pay-roll Tax (Victoria) (1982–83) 154 CLR 120. 38 Ibid, per Wilson and Deane JJ, 174. 39 R (on the application of Hodkin and another) v Registrar General of Births, Deaths and Marriages [2013] UKSC 77 [57].

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Deane JJ’s criteria, and not repeating the other criteria of participation in specific practices having supernatural significance, that adherents constitute an identifiable group and that they see the ideas as religious. Both the lists are explicitly said not to be definitive, and so the beliefs do not need to match all the criteria to be classified as religious. To this extent, then, the approach resembles the analogy approach, and has the consequent advantages of flexibility. However, the criteria listed share characteristics of the content-based approach. The definition used in Hodkin does not classify beliefs as religious because of their resemblance to mainstream religions, thus escaping the problem of suggesting that some religions are superior to others. Yet the fact that the list of criteria exists, albeit not in a definitive form, means that the ‘definition’ is not too vague or uncertain to be capable of meaningful use. A definition of religion based on criteria such as those set out in The Church of the New Faith or Hodkin seems to provide a workable basis upon which to consider the question of when beliefs are religious. In neither case does the court explain the reasons for including the particular criteria. Indeed, having endorsed the approach of Wilson and Deane JJ, Lord Toulson does not give reasons for providing a more limited list in his description of religion. However, viewed in the light of Macklem’s purposive justification for protecting religion, the list of criteria suggested in both cases can be explained. Macklem’s purpose for protection of religion also makes sense of the focus in Hodkin on the first two criteria: that religion can be described as a spiritual or non-secular belief system which claims to explain mankind’s place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system.

II. Defining Belief The fact that protection under both Article 9 ECHR and the Equality Act 2010 is not limited to religion alone means that some of the difficulties of definition can be overcome fairly easily. Any borderline religion is likely to be defined as a belief instead, qualifying it for protection in any event. It would seem that although beliefs clearly do not need to be religious in nature to be protected, there is still some limit on the types of belief to be covered. After all, to be included in the definition of belief in this context brings with it rights to respect for those beliefs from others. As Malcolm Evans points out, ‘[n]o system could countenance the right of anyone to believe anything and to be able to act accordingly’.40 Given that the term ‘belief ’ or ‘philosophical belief ’ would encompass religious beliefs in any event, it would seem that the inclusion of the term ‘religion’ in the

40 M Evans, ‘Religious Liberty and Non-Discrimination’ in M L P Loenen and P Rodrigues (eds), Non Discrimination Law: Comparative Perspectives (The Hague, Kluwer Law International, 1999) 131.

Defining Belief

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protections provided by the ECHR, the Equality Directive and the Equality Act 2010 places some boundaries around the meaning of ‘belief ’.41 This suggests that although beliefs do not have to be religious, the outer boundaries of what is protected may be determined in some way by analogy with the term ‘religion’.42 Indeed, as originally drafted, regulation 2(1) of the Employment Equality (Religion and Belief) Regulations 2003 defined ‘religion or belief’ as ‘any religion, religious belief, or similar philosophical belief’. To be defined as ‘similar’ to religion was viewed as offensive to some humanists and atheists,43 and the definition was amended by the Equality Act 2006 to remove the term ‘similar’. At the time, Baroness Scotland, the Minister of State for the Home Office, claimed that the change of wording would make no difference, because ‘the term “philosophical belief” will take its meaning from the context in which it appears; that is, as part of the legislation relating to discrimination on the grounds of religion or belief’.44 However, it has been argued that a broader definition of belief has been adopted in subsequent cases.45 The use of the term ‘belief ’ or ‘philosophical belief ’ means that belief systems which are specifically non-religious, such as humanism, atheism and agnosticism, are clearly intended to be covered, without needing to broaden the meaning of ‘religion’ to encompass them. Yet the purposive approach to defining religion may still be useful in determining the correct parameters to the meaning of ‘belief ’ in this context. The explanatory notes to the original version used the ‘analogy’ approach in drawing the parameters of what constitutes a ‘similar philosophical belief ’,46 stating that effectively, ‘the belief should occupy a place in the person’s life parallel to that filled by the God/Gods of those holding a particular religious belief ’; in the explanatory notes to the Equality Act 2010, this has been replaced by the following, that is, the belief: must be genuinely held; be a belief and not an opinion or viewpoint based on the present state of information available; be a belief as to a weighty and substantial aspect of human life and behaviour; must attain a certain level of cogency, seriousness, cohesion and importance; and be worthy of respect in a democratic society, compatible with human dignity, and

41 This would follow the rule of statutory interpretation that suggests that where wide words follow words with a more restricted meaning, the wider words are interpreted as meaning things that are ejusdem generis (of the same genus or class) as the more restricted words. 42 See the comments of Baroness Scotland at Hansard HL vol 673 col 1109 (13 July 2005). 43 Comments on the Draft Employment Equality (Religion or Belief) Regulations 2003, British Humanist Association, January 2003. See also the comments of Lord Wedderburn in the debate on the Regulations, Hansard HL vol 649 col 788 (17 June 2003). Out of interest, having identified himself as having beliefs that were specifically not ‘similar’ to religion, he went on to swear that ‘[i]f [the minister] does not fail in the courts on the sexual orientation regulations, by heaven, he will one day on these regulations’ (emphasis added). 44 Hansard HL vol 673 col 1109 (13 July 2005). 45 See R Sandberg, ‘A question of Belief ’ in Religion and Law (London, Theos, 2012), available at . 46 DTI Explanatory Notes for the Employment Equality (Religion and Belief) Regulations, para 13.

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not conflict with the fundamental rights of others. This definition is based on that found in the in the case law of the European Court of Human Rights (ECtHR)47 and the UK case of Grainger plc v Nicholson,48 discussed below.

Defining Belief: The Approach of the UK Courts Prior to the change in definition of ‘belief ’ in 2006, the early tribunal-level case law on defining belief was fairly restrictive, rejecting some claims on the basis that the beliefs were not similar to religion. For example, in Williams v South Central Limited,49 an employment tribunal dismissed a claim that loyalty to a national flag could be protected as a belief under the original definition in the 2003 Regulations. Similarly, in Baggs v Fudge,50 the Employment Tribunal (ET) held that belief in the views of the British National Party (BNP) was not a ‘similar philosophical belief ’. Following the removal of the requirement of similarity to religion,51 tribunals appear to have taken a more expansive approach to the definition of belief. However, at the same time, the case law has been somewhat inconsistent, so the overall trend seems to be more towards confusion and incoherence, rather than towards a clear expansion of the definition. A key case on the definition of belief is Grainger PLC v Nicholson,52 in which the Employment Appeal Tribunal (EAT) held that belief about climate change could amount to a protected belief. Mr Nicholson was a surveyor and head of sustainability at Grainger PLC. He was made redundant and claimed that this was due, in part, to his beliefs on climate change. He argued that he had a ‘strongly held philosophical belief about climate change and the environment’. This included the belief that ‘we must urgently cut carbon emissions to avoid catastrophic climate change’. He argued that this was not merely an opinion but had an effect on how he lived his life, including his choice of home, the way he travelled, what he bought, what he ate and drank, what he did with his waste, and his hopes and fears for the future. In determining that these views could amount to a ‘philosophical belief’, the EAT relied on the decision of the ECtHR in Campbell and Cosans v UK, that beliefs must ‘attain a certain level of cogency, seriousness, cohesion and importance … and

47

X, Y and Z v UK (1982) 31 D&R 50; and Campbell and Cosans v UK (1982) 4 EHRR 293. Grainger plc v Nicholson [2010] IRLR 4. Williams v South Central Limited, ET case no 2306989/2003. 50 Baggs v Fudge, ET case no 1400114/2005. 51 It should be noted that the courts have not explicitly linked the new more expansive definition to the change in wording. 52 Grainger plc v Nicholson [2010] IRLR 4. The case was heard under the 2003 Regulations as amended by the 2006 Equality Act, and therefore using the same definition as applies to the 2010 Equality Act. 48 49

Defining Belief

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[be] worthy of respect in a democratic society’.53 In holding that Nicholson’s views amounted to a ‘philosophical belief’, the EAT applied a test based on five criteria: (i) The belief must be genuinely held. (ii) It must be a belief and not an opinion or viewpoint based on the present state of information available. (iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour. (iv) It must attain a certain level of cogency, seriousness, cohesion and importance. (v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.54

Applied to Nicholson, it can be seen that his beliefs were genuine; they were more than mere opinion, as he had settled views about climate change and they affected the way he lived his life; they were cogent, serious, cohesive and important. In addition, a certain amount of emphasis was given by the EAT to the fact that they were worthy of respect in society. However, although one might have thought that Nicholson’s beliefs on man-made climate change were based on scientific evidence, nonetheless, the EAT did not exclude those views, despite the fact that one of its criteria was that the beliefs must not be an opinion or viewpoint based on the present state of information available.55 These criteria have been developed and applied in a number of later employment tribunal and EAT decisions; for example, in Greater Manchester Police Authority v Power56 it was held that a belief in spiritualism and the philosophical belief in life after death and psychic powers met the five criteria. There have been no higher appellate decisions on the definition of ‘belief ’, but what can be seen from a review of the use of the Nicholson criteria in the employment tribunals is that there remains some inconsistency as regards the interpretation of the term ‘belief ’ in practice. The first criterion, genuineness, is reasonably unproblematic; sincerity is a fairly predictable requirement for any legal claim. However, a question arises regarding whether any inconsistent behaviour can undermine a claim that a belief is genuine. For example, could someone who shared Nicholson’s beliefs on climate change be found not to have a genuine belief if she travels by car for work, or goes on holiday by aeroplane? Whilst the requirement that a belief be genuine is uncontroversial, clearly the protection of beliefs would be somewhat precarious if it could be denied whenever a person acts inconsistently with his or her

53 Campbell and Cosans v UK (1982) 4 EHRR 293, para 33. The case was not brought under Art 9 but under Art 2 of Protocol No 1 to the Convention, namely, the right of parents to ensure that education and teaching is in conformity with their own religious and philosophical convictions. 54 Grainger PLC v Nicholson, para 24. 55 See P Edge and L Vickers, Review of equality and human rights law relating to religion or belief (London, Equality and Human Rights Commission, 2015) at 16. 56 Greater Manchester Police Authority v Power EAT 0434/09/DA.

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stated beliefs. In an ET case, Streatfield v London Philharmonic Orchestra Ltd,57 this issue was raised, and the tribunal confirmed that people sometimes have to make compromises over their beliefs, and that this should not automatically undermine the genuineness of the belief.58 The second criterion, that the belief must not be an opinion or viewpoint based on the present state of information available, is more problematic. In the earlier case of McClintock v Department of Constitutional Affairs,59 a Justice of the Peace claimed discrimination after resigning from the Family Panel because of his reluctance to place children for adoption with same-sex couples. He did not base his claim on his religious or other beliefs on sexuality; instead, his refusal to participate in same-sex adoption was based on the doubts he had resulting from a lack of research into adoption by same-sex couples. The EAT confirmed that it is not enough ‘to have an opinion based on some real or perceived logic or based on information or lack of information available’.60 The second Nicholson criterion seems to be derived from this case, with the result that beliefs based on available information should not be protected. However, as suggested above, it would seem difficult to explain why Nicholson’s belief in climate change itself meets this criterion, given that it is a belief based on the present state of scientific information available. Although Nicholson does not seem to meet one its own criteria, the EAT distinguishes between beliefs based on current information and those which can be said to be a philosophical belief derived from, or based on, science.61 Whilst not explicit in the reasoning, presumably a belief crosses the threshold between being based only on information to being based on a philosophy derived from the same information, by meeting other criteria, such as cogency, and relating to weighty matters. The third criterion, that the belief must be a belief as to a weighty and substantial aspect of human life and behaviour, again would seem to be uncontroversial. Given the way in which, from the close association of the words ‘religion or belief ’, some equivalence is expected between these concepts, it is not surprising that elements from the purposive definition of religion can be seen in this requirement. However, while the requirement may be understandable, it can be difficult to predict the outcome of any assessment of this criterion as it applies to any specific belief. The potential for inconsistency that this criterion creates is perhaps most notably illustrated by two cases related to fox hunting. In the first, Whaley v Lord Advocate,62 albeit not a case under the Equality Act 2010, the

57

Streatfield v London Philharmonic Orchestra Ltd ET case no /2390772/2011. Streatfield had written to the press criticising the LPO’s decision to invite the Israel Philharmonic Orchestra to perform at the BBC Proms, but she had previously played with the Israel Philharmonic Orchestra. 59 McClintock v Department of Constitutional Affairs [2008] IRLR 29. 60 McClintock, para 45. 61 Grainger PLC v Nicholson, para 30. 62 Whaley v Lord Advocate [2007] UKHL 53. 58

Defining Belief

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House of Lords held that a person’s belief in his right to engage in fox hunting was not a protected belief. In contrast, in the ET case of Hashman v Milton Park, Dorset Ltd,63 anti-hunting beliefs were found capable of protection. However, it is worth noting that although seemingly starkly in opposition to each other, these findings are not entirely inconsistent: the protected philosophical belief opposing fox hunting included a strongly held belief in the sanctity of life, and this went beyond strongly held opinion. The employment judge in the case also emphasised that this decision applied to the claimant and his particular beliefs, and not to opposition to fox hunting in general. However, the two fox-hunting cases do illustrate the difficulty of predicting how a criterion such as ‘a weighty and substantial aspect of human life and behaviour’ may be applied. Other cases at ET level illustrate how this criterion has been used to decide whether beliefs are protected. In Lisk v Shield Guardian Co,64 a belief that one should wear a poppy to show respect to servicemen was found not to be protected on the basis that it was not a belief as to a weighty and substantial aspect of human life. However, in Maistry v BBC,65 a belief that public service broadcasting has the higher purpose of promoting cultural interchange and social cohesion was found to be covered by the legislation. Again, it is difficult to find any clarity in the way in which this criterion is used to determine whether belief should be protected or not. The fourth criterion is that the belief must attain a certain level of cogency, seriousness, cohesion and importance. The requirement will mean that the motivation for any actions based on belief will need to be articulated in clear terms by claimants, and claims based on unformulated and rather hazy principles will fall at this definitional hurdle. An example of this criterion being used to exclude a belief system can be seen in the ET decision in Farrell v South Yorkshire Police Authority.66 In this case, the claimant held a range of beliefs, including that the 9/11 and 7/7 terrorist attacks had been carried out with the backing of the US and British Governments as part of a strategy intent on establishing a New World Order. Although the claimant argued that these beliefs formed part of an obscure but genuine strand of Protestant Christian theology, the tribunal found that the belief did not meet the bare minimum standard of cogency or coherence: on the weight of the evidence, it was wildly improbable. The tribunal also took the view that the coherence and cogency of beliefs need to be tested objectively. Genuine belief on the part of claimants that their beliefs are cogent will not be sufficient. Whilst it is only to be expected that some level of coherence of beliefs will be necessary to achieve legal protection, this could cause difficulties for new or minority religions or belief groups, where principles of belief may be less well developed and where it is difficult to determine with authority the content of the

63

Hashman v Milton Park Dorset Ltd (t/a Orchard Park), ET case no 3105555. Lisk v Shield Guardian Co ET case no /3300873/11. 65 Maistry v BBC, ET case no 1313142/10. 66 Farrell v South Yorkshire Police Authority, ET case no 2803805/10. 64

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belief system.67 Moreover, a challenge remains as to how the courts should conduct their evaluation of the cogency and coherence of a belief while remaining neutral between different belief systems. This is particularly the case given that not all belief systems will regard cogency and coherence as important.68 The last criterion (that the belief must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others) may appear uncontroversial, but in fact it gives rise to difficulties. This is because it seems to allow room for courts to make their own judgments about the content of beliefs, and this risks imposing what has been termed a ‘morality filter’ on the types of belief that will be protected, leading to a further risk that this may rest on ‘ethical premises which will substantially resemble the dominant religion’.69 Under the ECHR, restrictions on the manifestation of beliefs have been allowed by reference to the fundamental rights of others, dignity or undemocratic content.70 However, to use this criterion to identify which beliefs can be brought within the scope of legal protection in the first place is more problematic, particularly if the courts are to remain neutral as between different religions and beliefs. Courts are usually very wary about ruling on matters of religious doctrine, such as whether Muslim women are required by Islam to wear certain clothing,71 and whether Christians are required to use corporal punishment on children.72 Given the attempts to avoid stepping into religious debates, it would be surprising if courts could deem views not to be covered by the Equality Act 2010 on the basis of the particular court’s view about whether or not they are ‘respectable’. Yet limiting protection to beliefs that are ‘respectable’ may seem an attractive way to avoid protecting ‘unacceptable’ political or other beliefs. For example, in the ET case of Arya v London Borough of Waltham Forest,73 anti-Semitic beliefs were excluded from protection on this basis. The question of whether unacceptable beliefs should be removed from the protection of the Equality Act 2010 at the definitional stage is therefore debatable. On the one hand, because protecting a religion or belief constitutes a burden on

67 See P Cumper, ‘The public manifestation of religion or belief: challenges for a multi-faith society in the twenty-first century’ in R O’Dair and A Lewis (eds) Current Legal Issues, vol 4 (Oxford, OUP, 2000) at 325. It could also cause difficulties in other cases, for example if individuals are unable to formulate their beliefs in a sufficiently clear way because of a lack of capacity for reasons such as youth or disability. 68 See P Edge and L Vickers, Review of equality and human rights law relating to religion or belief (London, Equality and Human Rights Commission, 2015). 69 C Kenny, ‘Law and the Art of Defining Religion’ (2014) 16 Ecc LJ 18 at 20. 70 See, eg, SAS v France, App no 43835/11 (2014). 71 R (On the application of Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15. 72 Williamson v Secretary of State for Education and Employment [2005] UKHL 15. 73 ET case no 3200396/11. Commented on by F Cranmer, Is Anti-Semitism a ‘philosophical belief ’?, available at .

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those required to observe the protection, some form of control on the content of what is protected would seem to be legitimate.74 On the other hand, the danger of the ‘respectability’ criterion in Nicholson is that courts could become engaged in determining which religions and beliefs should be protected by virtue of whether or not those views are deemed to be ‘respectable’. The protection for freedom of speech under Article 10 ECHR makes very clear that the Convention applies to speech that offends, shocks or disturbs, and not just to inoffensive matters;75 and in the context of religious protection, the House of Lords in Williamson was clear that to limit protection only to beliefs that were respectable or of which the court approves is inappropriate.76 Moreover, such an approach could lead to some difficulties if applied in the context of religion, if a court were to assess the respectability of views such as the belief that same-sex unions are contrary to God’s law or that women must cover their hair in the presence of men. Applied to facts such as these, the focus in Nicholson on whether views were worthy of respect can be considered to be verging on dangerous territory for courts, and territory on which they have traditionally been cautious not to tread in the context of religion.77 Thus, although the criteria set out in the Nicholson case are useful, and consistent with the earlier ECtHR decision in Campbell and Cosans v UK that beliefs must ‘attain a certain level of cogency, seriousness, cohesion and importance … and [be] worthy of respect in a democratic society’,78 the law nonetheless remains uncertain. Beyond the concerns related to the five criteria used in Nicholson, two further issues can be identified. First, the extent to which political beliefs are protected remains unclear. In Nicholson, although noting that support for a political party would not be covered,79 Burton J refused to rule out from protection political philosophies such as socialism, Marxism, communism or free-market capitalism.80 Whilst noting the concern that this could protect objectionable beliefs such as racist or homophobic political philosophies, he took the view that the criterion that the views must be worthy of respect should be used to determine which political views should be protected. Thus, political beliefs per se were not ruled out, although support for a particular party was. This rather ambiguous lead

74 P Jones, ‘Belief, autonomy and responsibility: the case of indirect religious discrimination’ in G Levery (ed), Authenticity, Autonomy and Multiculturalism (Abingdon, Routledge Press, 2015). 75 Handyside (1981) 1 EHRR 737. 76 Eg in R (Williamson and others) v Secretary of State for Education and Employment [2005] UKHL 15 Lord Walker stated (at [60]), ‘in matters of human rights the court should not show liberal tolerance only to tolerant liberals’. See also C McCrudden ‘Religion, Human Rights, Equality, and the Public Sphere’ (2011) 13 (1) Ecc LJ 26. 77 See Williamson, (at [60]) where Lord Walker said that ‘the court is not equipped to weigh the cogency, seriousness and coherence of theological doctrines’. For a discussion of the trend of the ECHR to define as religious only those manifestations that support a secular society, see M Evans, ‘Freedom of Religion and the ECHR: approaches, trends and tensions’ in P Cane, C Evans and Z Robinson (eds), Law and Religion in Theoretical and Historical Context (Cambridge, Cambridge University Press, 2008). 78 Campbell and Cosans v UK (1982) 4 EHRR 293, para 33. 79 Grainger plc v Nicholson [2010] IRLR 4, para 10. 80 Ibid, para 28.

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(Burton J also noted that beliefs related to climate change might well be characterised as political),81 has been followed with a corresponding uncertainty in later employment cases: in Kelly and others v Unison82 the tribunal confirmed that not all political beliefs and opinions would be protected, in particular beliefs based on Marxism/Trotskyism and the Socialist Party would not be protected; but in GMB v Henderson83 the EAT did not overturn a tribunal finding that left-wing democratic socialist beliefs were protected. A second issue concerns the protection of beliefs related to the current state of knowledge. The uncertainty to which this can give rise is noted above, but additional difficulties can be identified with protecting such beliefs under the Equality Act 2010. In particular, although beliefs about climate change are cogent, serious, cohesive, important and worthy of respect, so are many other views and beliefs in scientifically proven facts, and it becomes difficult to see where the boundaries lie between the types of belief that should be covered and those that should not. For example, beliefs about the dangers of obesity (beliefs which are generally held to be scientifically proven but which still have their sceptics)84 could match the requirement to be cogent, serious, cohesive, important and worthy of respect, and a number of related actions and lifestyle choices will follow these beliefs. However, while not condoning discrimination on these grounds, it would seem surprising if such views were to amount to a ‘philosophical belief ’. Moreover, there may be additional consequences of designating these ideas as ‘beliefs’. This is because, although the EAT made clear that the Nicholson decision related only to its particular equality law context, it is likely that it will be read across into other forms of religion and belief protection, just as cases such as Hodkin are likely to be used in the equality context. Applied in other contexts, the decision could mean that government-sponsored attempts to combat climate change, or to promote public health through action to tackle obesity, could be viewed as the promotion of a ‘belief ’, and it could be argued that it is inappropriate for the state or public sector organisations to promote such beliefs. For example, the EAT has held, with regard to the question of whether a local authority (as opposed to a particular faith school) can have a ‘religious ethos’, that ‘neither the [city council] nor their education department have any business having an ethos’.85 The consequences of Nicholson for those who are attempting to prevent climate change may be precisely the opposite of those intended: if climate change is viewed as a philosophical belief, rather than as a scientific truth, then its promotion could be viewed as inappropriate in some contexts. Whilst private firms would remain

81

Ibid. ET/2203854-57/08, 28 January 2010. 83 GMB v Henderson, EAT 73/14/DM, 13 March 2015, para 62. 84 Although the belief that obesity harms health is almost universally held, there are some sceptics: see, eg, P Campos, The Obesity Myth: Why America’s Obsession with Weight Is Hazardous to Your Health (New York, Gotham, 2004) . 85 Glasgow City Council v McNab, UKEATS/0037/06/MT, para 61. 82

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free to develop an ethos based on the belief in a green agenda, and this may allow them to require staff to conform to the belief system where proportionate,86 attempts by the public sector to promote a green agenda (or a healthy life style, for example activities to help people tackle obesity such as ‘walk to work week’ or ‘healthy schools’ initiatives) could come under suspicion as promoting a particular ethos based on belief. Furthermore, the protection of belief under the Equality Act 2010 also includes a lack of belief, suggesting that those who deny climate change could be equally protected with those who accept the scientific evidence.

III. Conclusion Although the terms ‘religion’ and ‘belief’ remain without any decisive definition, working definitions can be seen to be emerging through the case law in a variety of contexts, including under the Equality Act 2010. It may be that no single definition is needed, particularly given the range of contexts in which religion can be defined, including employment, planning laws and charity law. However, in the context of the Equality Act 2010, a working definition will be useful. In what follows, then, religion and belief will be taken to include beliefs that are necessary to the dignity and integrity of the individual.87 They should relate to mankind’s place in the world, be important in helping the believer make sense of the unknowable, and be a means through which the individual develops a sense of the good. Defined in this way, protection of religion and belief under the Equality Act is not limited to those belief systems that have already been defined and protected in the past, and it is open to development as human thought develops. It thus attempts to avoid the dangers of too tight a definition, which may be under-inclusive. However, it should be clear that protection is only available to those beliefs that are sufficiently serious to the individual to affect his or her sense of identity and understanding of the world. After all, the legal protection available to religion and belief in the workplace extends beyond tolerance of differences in opinion. It involves a form of obligation on individuals, who are required, at the very least, to set aside personal preference to avoid discrimination against those of different beliefs, and at times more significantly to take positive steps to accommodate religious practices. If this is to be required of people, there must be clear and cogent reasons. These reasons are explored in the next chapter.

86

Equality Act 2010, sch 9(3). See B Hepple and T Choudhury, Tackling religious discrimination: practical implications for policy makers and legislators, Home Office Research Study 221 (London, Home Office, 2001), who point out that Art 13, which provides the basis of the Employment Equality Directive, should be interpreted in the light of Art 1 of the EU Charter of Fundamental Rights, which states that ‘the dignity of the person must be respected and protected’. 87

3 Protecting Religion at Work I. Introduction The work relationship, traditionally viewed as a private contractual arrangement between master and servant, has been transformed over the last 50 years into a highly regulated relationship, in which the worker is protected on many fronts. Statutory protection and developments in the common law1 have increased the duties that are imposed on employers to protect their employees’ interests. Moreover, under the Human Rights Act 1998, public employers must respect the human rights of their employees and, although not explicitly provided for in the Act, the protection probably extends indirectly to private sector workplaces.2 The range of legal protection available to employees means that the workplace can no longer be viewed purely as a private forum governed by contract: instead, the employment relationship is becoming increasingly constitutionalised, and is a place in which workers’ personal rights are granted a measure of respect. Despite these developments in the employment relationship, it remains the case that neither freedom from discrimination, nor freedom of religion per se is an absolute right, and at times they may have to give way to other competing interests, particularly when exercised in the context of work. The main aim of employers is the running of efficient and profitable businesses; and employees give up a degree of autonomy when they enter the workplace, in return for a wage. At times the interests of the employer will not be compatible with full protection for all the rights the employee might enjoy in the world outside work. Moreover, not only are the religious interests that arise at work not absolute in nature, but there are also other good reasons to argue for their restriction. In particular, religious groups often do not recognise other fundamental rights and freedoms, such as rights to be treated equally on grounds of gender, sexual orientation or other grounds. Within the context of work, protecting religious interests may also impose financial costs on employers. It is thus important to determine the extent to which religious interests should be protected or accommodated when 1 Eg Malik v BCCI SA [1997] IRLR 462; Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 347. 2 For a full discussion of how the Human Rights Act 1998 can be applied in public and private workplaces, see Ch 4; and see L Vickers, Freedom of Expression and Employment (Oxford, OUP, 2002) Ch 3.

Introduction

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they conflict with other interests which are also protected in the work context. In effect, the question that arises is whether it is ever acceptable to privilege religious rights over other rights, such as equality-based rights, or the commercial interests of employers, by requiring the protection or accommodation of religious interests in the work sphere. Can religious employees expect that their religious interests will be accommodated at work where to do so imposes some cost on others? As with other conflicts, such as that between privacy and free speech, a resolution may be found by engaging in a balancing exercise, with rights or interests weighed against each other to decide which should prevail. The legal terminology used is one of protecting or accommodating religion where it is proportionate or reasonable to do so, but in practice the meaning of such indeterminate phrases will involve a degree of balancing of interests or values.3 In order to make any sense of the process of balancing rights, we need to have some idea of why the various interests and values are engaged, so that we can judge their metaphorical weight. If the reasons for protection are merely that religion has traditionally been viewed as important in our culture, this may not weigh too heavily when set against equality rights based on essential human dignity. If, however, religious rights are protected also as a result of a link with autonomy, dignity and freedom,4 they may weigh more equally when set against similarly justified interests. Thus it is necessary to establish whether and to what extent it is acceptable for the state, via the legal system, to protect religious interests at all, and in particular when they conflict with other interests or impose a burden on others. This will be considered in two parts: first, the arguments for and against protection of freedom of religion at all; and second, the extent to which that protection should operate in the context of the workplace. A framework of protection can then be created, to enable the debate on the proper scope of the protection for religion within the workplace to take place in a coherent manner. Before turning to consider the question of why religion should be protected at work, two preliminary issues will be discussed: one regarding why religion is subject to its own protection and a second issue relating to terminology.

Particular Protection for Religion? The first preliminary question is whether freedom of religion should be the subject of specialised protection, or whether it can be adequately protected using other rights such as the right to private life, the right to freedom of association and the right to freedom of expression. This is because it is arguable that freedom of religion is just a specialised sub-species of these other human rights, and requires

3 For a discussion of various approaches to interpreting what is ‘proportionate’, see J Rivers, ‘Proportionality and Variable Intensity of Review’ (2006) 65(1) CLJ 174. 4 See T Khaitan, A Theory of Discrimination Law (Oxford, OUP, 2015).

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no additional protection beyond that available to them.5 Indeed, it is certainly the case that a good deal of the practical protection provided to freedom of religion could be provided by use of these other rights. Much religious practice and ritual could be protected by the right to free expression, public worship could be protected by freedom of association, and the right to private life could be used to protect against any overly invasive requirements to disclose religious affiliation. Yet protection based on the particular right to freedom of religion is more extensive than that based on more general protection for free expression and association. Freedom of religion includes protection for the forum internum as well as the forum externum, so it includes more than just expression but is linked to freedom of thought, belief and conscience, even if the view is not expressed. Freedom of expression is protected because of its causal connection with upholding autonomy, and because it can aid the discovery of the truth. Freedom of religion is not protected because it helps discover the truth, and there is no need for the thoughts to be communicated to achieve protection. This suggests that the protection is based on something beyond the right to freedom of expression. The right to private life also fails to capture the full nature of freedom of religion. The right to discuss religion and share ideas is protected, separating the right from that engaged by the concept of privacy or private life. If religious freedom were to be based on privacy interests, it might seem acceptable to limit protection to the private sphere. Yet religious expression is often of a public nature. Similarly, the right to freedom of association does not capture what it is that is occurring when religious people meet for worship or other rituals, in terms of the significance of the ‘content’ of any meeting as helping to define its importance. Thus although the right to freedom of religion could be broken up into parts, and separately protected via the protection provided by other human rights, the scope of the protection is only comprehensible once it is seen as a whole. Moreover, it is clear that freedom of religion is protected as a separate fundamental right in all the major human rights documents.6 The right not to be discriminated against on grounds of religion is also present in many lists of grounds of equality.7 The acceptance of the need to provide protection for religious rights and interests is almost universal. However, the scope of protection in the work context is dependent on an understanding of the basis for providing religion with protection, as only then can we start to understand what weight religious interests should be given when balanced against other rights with which they may be colliding. The issue is highly complex, drawing in debates about the nature of all human rights, and is the subject of its

5

See J Nickel, ‘Who Needs Freedom of Religion?’ (2005) 76 Univ Colorado LR 941. For example, Art 18 UDHR, Art 18 International Covenant on Civil and Political Rights (ICCPR), Art 9 ECHR. 7 For example, Art 14 ECHR, Art 13 Treaty of Rome, Art 21 EU Charter of Fundamental Rights, and also the constitutions of South Africa, Canada, the USA and India. 6

Introduction

35

own full literature, which is not replicated here.8 Instead, in the following sections a number of reasons for and against protecting religious interests are discussed. Conclusions are then drawn about the extent to which religious interests should be given protection within the legal system in general before turning to the specific question of the extent to which religion should be protected in the workplace.

Terminology: Rights or Interests? The second preliminary issue relates to terminology. The context in which the issue of religion is discussed here is the workplace, a sphere that from the start involves non-absolute rights: to restrict rights at work does not involve absolute restrictions on those freedoms, just a restriction on their protection in the particular context of work. As a result, to discuss the issue in terms of rights may be unhelpful. The law governing the employment relationship creates a number of employment rights, such as rights not to be unfairly dismissed, a right to be informed of the main terms and conditions of employment and so on. These are legally enforceable rights of great importance in the context of employment law, and reflect human rights values of dignity and respect to individuals which apply in the workplace as well as outside. However, rights not to be unfairly dismissed, or to a minimum term of notice, remain employment rights, and are not human rights as traditionally understood. The difficulty when considering the issue of religious rights at work is that the language of freedom of religion and human rights mixes with the language of employment rights. There are two dangers if this takes place. First, if the employment rights relating to religion are invested with the full power of the language of human rights, their importance or strength may become inflated. The corollary of inflating the importance of workplace rights is a corresponding deflation in the power of the language of human rights, as the terminology of rights is devalued by over-exposure. To say that an employee has a right to reasonable notice before dismissal is not to say that there is a breach of fundamental human rights if that employment right is not upheld. If we use ‘human rights’ terminology too readily, rights become merely aspirational. Rather than demanding that they be realised as a matter of urgency, we can become inured to the idea that the protection of rights is just something we would, ideally, wish to achieve, and that failure can be adequately compensated financially. If we become too accustomed to such a limited view of ‘rights’, we run the danger of accepting a reduced level of protection for those rights which are recognised to be fundamental in international law.9

8 See, eg, R Ahdar and I Leigh, Religious Freedom in the Liberal State (Oxford, OUP, 2005); B Leiter, Why Tolerate Religion? (Princeton, NJ, Princeton University Press, 2012). 9 See C Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the Century (Oxford, Hart Publishing, 2000).

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The second danger is that by using the same language to discuss freedom of religion generally and freedom of religion at work, the fact that the workplace is a limited sphere is forgotten. The fact that the workplace is only one part of individuals’ lives (albeit, as argued below, a very important one) should not be ignored. Where conflicts arise between different rights, such as gender equality rights and rights to religious freedom, it should not be forgotten that none of the rights is being discussed in absolute terms, but only in the context of work. Suggested compromises between conflicting rights may be appropriate in the work context, without necessarily implying that they are appropriate in a more general sense. In order to avoid confusion, or the inflation of terminology, the term ‘religious interests’ is used in what follows, when referring to the right to freedom of religion in the work context. This is to avoid the suggestion that the right exists in an absolute sense, reflecting the fact that the rights are operating in the limited sphere of the workplace. It should be noted that the fact that rights terminology is not used should not be taken to undermine the importance of the interests discussed. Instead, it will be argued below that freedom of religion is a value or interest that is of sufficient significance that it warrants a significant level of protection at work. Protection for religion in the work context can potentially include an obligation not to discriminate against employees on grounds of religion and belief, and an obligation on the employer to allow some adaptation of usual practices to accommodate the religious practice of the employee, even where to do so involves some cost to the employer. The need for accommodation reflects the fact that religious practice or observance, as well as belief itself, is protected, and religious practice can only really be protected by a process of accommodation.10 At times, protection of religious interests may take the form of allowing an employer to discriminate against others, and in such cases this will be clear from the language used. Although currently it is only the right not to be discriminated against that is protected in the domestic legal sphere,11 for the purposes of this chapter, and in order to assess the underlying rationale for these legal rights, both the terms ‘protection’ and ‘accommodation’ of religion will be used to describe different modes of protection. Later chapters will discuss in more detail the best form for any legal protection that should be provided for religious interests at work, and in particular whether a duty of reasonable accommodation of religion should be created.12 10 See C Jolls, ‘Anti-discrimination and Accommodation’ (2001) 115 Harvard LR 642, who argues that ‘accommodation’ of difference forms part of the concept of discrimination. This view is consistent with the interpretation of equality in Thlimmenos v Greece (2001) 31 EHRR 15, which held that failure to treat different people differently is as unjust as failure to treat similarly people who are the same. This suggests that the concept of accommodation is implicit in the concept of indirect discrimination. For the contrary view, see M Kelman, ‘Market Discrimination and Groups’ (2001) 53 Stanford LR 833. L Waddington and A Hendricks, ‘The Expanding Concept of Employment Discrimination in Europe: From Direct and Indirect Discrimination to Reasonable Accommodation Discrimination’ (2002) 18/3 IJCLLIR 403 consider that reasonable accommodation should be treated as a form of discrimination sui generis. 11 This illustrates the overlap between human rights and employment rights. 12 See discussion in Ch 7.

Why Protect Religious Interests?

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II. Why Protect Religious Interests? In many cases, the protection of religious interests will not involve any cost to others, and there is clearly little difficulty in upholding rights to religious freedom where to do so involves no conflict with other protected interests. For example, protection of the right of staff merely to hold religious views is unlikely to conflict with the rights of others. More complex is to determine the reasons for protecting religious interests when they give rise to some form of conflict, for example where the manifestation of religious views interferes with other rights. There are several difficulties that can be identified with regard to the protection of religion and belief. First, religious interests can conflict with other legitimate interests. This is because many religions do not recognise fundamental rights and freedoms, such as rights not to be discriminated against on grounds of birth, status, gender, sexual orientation or other grounds. It is therefore arguable that a society that values equality and dignity should not protect or accommodate the views of those who do not share those fundamental values.13 A second conflict can arise from the inherent collision between the interests of religious people and the interests of those outside the religious group. In effect, freedom of religion can be understood to have both a positive aspect, which protects the interests of the religious individual or group, and a negative aspect, which protects individuals from having the religious views of others imposed upon them.14 Clearly some forms of protection for the positive aspect of religious freedom risk conflicting with protection for its negative aspect. A third difficulty is that protection for religious interests is unlikely to proceed on the basis that the state endorses one religious viewpoint as, exclusively, correct. A range of religious beliefs are protected, even though in some cases they claim to have an ultimate and exclusive understanding of the truth, making them mutually incompatible.15 Given that the state is not in a position to determine which, if any, religions or beliefs are true or false, legal protection cannot be based on the view that the belief is possessed of an exclusive version of the truth. The protection must therefore be based on something other than the argument that the religious belief is exclusively true. If religious claims are not protected on the basis of their exclusive truth,16 it is arguable that the costs of protecting religious interests should not be imposed on others. 13 See M Nussbaum, ‘A plea for difficulty’ in S M Okin (J Cohen, M Howard and M C Nussbaum, eds), Is Multiculturalism Bad for Women? (Princeton, NJ, Princeton University Press, 1999) and B Barry, Culture and Equality (Cambridge, Polity Press, 2001) for the view that cultural rights should not be protected at the expense of the equality rights of others. 14 See Kokkinakis v Greece (1993) 17 EHRR 397, where the Court confirmed that improper proselytism can interfere with the freedom of conscience of others. 15 This can apply to atheism as much as to theist or other religious beliefs. The belief that there is no god is incompatible with traditional religious belief. 16 If the international community were to come to the view that in fact one religion alone was ‘true’, the implications for public life would be enormous!

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A fourth difficulty that arises with regard to the protection for religious interests is the matter of choice. The argument is that religious affiliation is a chosen characteristic: given that the religious person has chosen to belong to a religion, his rights should yield when set against the rights of others based on non-chosen characteristics. For example, it is arguable that if one is to balance a religious person’s right to discriminate against women against the woman’s rights not to suffer discrimination, the balance will come down in favour of the woman’s rights, because gender is not a chosen characteristic and religion is. The idea is that the religious person can change religions if he or she wishes to, or at least choose to change his or her level of practical commitment to those beliefs, in order to avoid the resulting disadvantage. In contrast, the woman cannot change her gender. This argument has been used to explain why a hierarchy exists within discrimination law between the protection available for gender and race equality and that available for religion.17 However, there are strong reasons to reject a limitation of the protection for religion based on the idea that religious belief is chosen,18 and the question of whether religion is a chosen characteristic is highly contested. In the first place, a high percentage of religious adherents stay in the religious groups into which they were born, suggesting little mobility between religious groups. Moreover, even where there is mobility, the cost to the individual of renouncing religious affiliation should not be underestimated.19 Secondly, discrimination because of religion or belief is not only based on the religion or belief of the individual. It may be based on association, or on perception, neither of which is a matter of choice for the person discriminated against. For example, a worker could be discriminated against because of her child’s religion or belief; or someone with a religiously affiliated name, such as Singh or Mohammed, may be treated less favourably because of that person’s perceived religion, regardless of his or her actual belief; or a person could be discriminated against because he or she is assumed from their ethnicity to be Muslim. In none of these cases does the person discriminated against have any choice in the matter. Thirdly, many religious people do not understand their religion to be a matter of personal choice; they may instead feel chosen by their god, or they may view religious observance as an obligation or duty owed to their god, rather than as a chosen activity.20 Equally, those who do not have a religious belief may not experience this as a ‘chosen’ position either. Moreover, once beliefs based on the state of scientific knowledge, such as beliefs in climate change, are included within the protected category, it seems clear that choice is not a particularly helpful criterion in determining whether religion or belief should 17 D Schiek, ‘A New Framework on Equal Treatment of Persons in EC Law’ (2002) 8 European LJ 290, and M Bell and L Waddington, ‘Reflecting on inequalities in European equality law’ (2003) 28 EL Rev 349. 18 See further discussion below at p 45 ff. 19 See P W Edge, ‘Religious rights and choice under the European Convention on Human Rights’ [2000] 3 Web JCLI; and R Wintemute, Sexual Orientation and Human Rights (Oxford, OUP, 1985). 20 See R Ahdar and I Leigh, Religious Freedom in the Liberal State (Oxford, OUP, 2005) 62.

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be legally protected. Fourthly, it is arguable that even if in some respects the views and beliefs are chosen, nonetheless, this should not be used as a reason to refuse all protection to religion and belief interests. After all, the language of choice is not used to deny equality claims in respect of other grounds of equality, which may in some circumstances be chosen, such as some cases of pregnancy. Choice is not accepted as a reason to deny protection in these cases, usually on the basis that any such choice is a ‘fundamental choice’, as it is clearly closely related to an individual’s concept of identity and self-respect. Yet despite these reasons for rejecting the idea that religion should be afforded lesser protection because it is chosen, the role of choice in the protection of religion remains problematic. This is because, as elaborated further below,21 one of the strongest reasons for the protection religion in human rights law is that of autonomy and the freedom to choose one’s own conception of the good life. If religion is understood as unrelated to choice, then some of the underlying reasons for its protection are weakened. In effect, the role of choice in determining the parameters of the protection for religion and belief remains something of a paradox: religion acquires value from the notion of choice; but for many individuals it is not experienced as chosen. Given the difficulty in resolving the role of choice in determining the scope of any protection available for religious interests, it is suggested that the notion that religion and belief are chosen characteristics should not preclude their protection in the workplace. Thus, while choice might be seen as important in understanding why religion in general is a protected category, the concept of choice should not be used too readily to deny equality claims, particularly for individuals who do not experience religion or religious identity in such terms. However, the issue of choice may be relevant when considering the extent of any protection in the context of work, and so in this context the matter will be returned to below. Although the role of choice is contested, the other factors discussed above, such as the way in which religious interests may conflict with other interests, suggest that protection for religious interests should be limited. However, before reaching such a conclusion we need to consider the strength of the reasons in favour of protecting religion, to see if they are strong enough to warrant protection, especially when to do so imposes some level of cost on others. In particular, we need to see whether there are any reasons that are strong enough to balance against the first argument, that religion should not be protected at the expense of other equality rights. Several justifications for protecting religious interests are set out below. The initial justifications are fairly weak, and are likely to give way in any competition with other interests. The final reason, based on autonomy, dignity and the freedom to choose one’s concept of the good, is stronger, but it provides equal justification for the protection of other interests, such as equality on grounds of gender and

21

See further discussion at pp 45–49.

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sexuality, which may conflict with religious interests. This final justification for protection of religion, therefore, does not necessarily create a case for religion to trump other interests: it merely suggests a reason why religion should be protected alongside them. Moreover, it is not suggested in what follows that all religious or other philosophical beliefs should be protected regardless of their content, even where they are abhorrent. Instead the case is made for allowing religion and belief to cross the first hurdle towards protection, by being recognised as worthy of some, albeit qualified, protection. The extent of any interest in religion or belief when in competition with other interests is then explored further in the specific context of the workplace.

Religious Reasons Many of the earliest writers on human rights argue for their protection on a religious basis: humans are made in the image of God, they are all equal and are entitled to the basic human rights protection due to this status. However, many religions also accept religious explanations for gross breaches of human rights, as well as accepting serious inequalities between people, by believing either that God ordains inequality, or that some people are not equally human (for example, women or slaves).22 Apart from the potential for some rather startling conclusions about basic equality that remain compatible with religious thinking,23 the obvious difficulty with such religiously based explanations for human rights protection is that the reasoning is self-serving. It is not acceptable to base a rational system of protection for religious freedom and equality on reasoning that is predicated on the truth of the religious viewpoint. For example, legal protection for human rights could be based on a Christian view that God created all men in his image. Indeed such reasoning can and has led to significant protection for rights,24 as well as the less enlightened thinking referred to above. However, the reasoning gives no basis for non-Christians to respect human rights. As discussed above, protection for different religions cannot proceed on the basis that one religious view reflects absolute truth. Thus, if protection is to be afforded to religious interests in general, rather than to the interests of one particular religion, it must be based on reasoning that can be accepted by a range of parties, religious and not, rather than just adherents of one religion. This requires

22

eg, Ephesians 5:22–23, Colossians 3:22. See, eg, the verse in the popular children’s hymn All Things Bright and Beautiful by C F Alexander, usually omitted from modern hymnbooks: ‘The rich man in his castle, The poor man at his gate, He made them, high or lowly, And ordered their estate.’ 24 For example, it provided a religious motivation for the movement for the abolition of slavery. Galatians 3:28: ‘There is neither Jew nor Greek, there is neither bond nor free, there is neither male nor female: for ye are all one in Christ Jesus’ (King James Version, 1611). 23

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a secular explanation that is not dependent on acceptance of any particular religious world view.25 That secular explanation should not be based on an assumption that religious viewpoints are wrong, as to do so would, in effect, privilege atheism, itself a particular world view. Instead, reasons must be sought that are not reliant on the acceptance of any particular religious views, but which rely on reasons that can be agreed by all people, regardless of whether they personally hold religious views. To use Rawls’ terminology, the reasons given for protecting religious interests should be susceptible to ‘public reason’, that is, based on arguments that are accessible to all reasonable citizens.26 The basis for protecting religion can therefore not relate to the truth or otherwise of the particular belief, for ‘if there are truths about religious matters, they are not truths that can be publicly demonstrated’.27 The case for the protection of religious interests is, instead, better made using reasoning that is not dependent on religious belief.28

Conflict Resolution and Social Inclusion An obvious ‘public’ reason for protecting religious interests is as a response to the conflict so often caused by religious difference. This can be seen in the writing of Locke,29 who argued for religious tolerance as a response to centuries of war and atrocities inflicted in the name of religion. More recently we can see a commitment to religious equality as a response to religious conflict, for example in the constitution of India,30 and with the introduction of religious equality legislation in Northern Ireland.31 Clearly equality between religions is likely to be a fundamental safeguard of any peace accord that follows a religious conflict. Religious freedom is then granted as part of a peace-keeping process. In effect, both sides in any conflict are given space to practice their religion, not as a result of any objective belief in its value, but as a form of compromise between otherwise warring factions. In a conflict involving other interests a compromise might also involve some sort of equal recognition of rights. For example, a conflict over a right of way might well be settled by allowing both parties a level of access. No moral judgment need be made about the value of the right of way. A guarantee

25 See D Myerson, Rights Limited: Freedom of Expression, Religion and the South African Constitution (Cape Town, Juta, 1997). 26 J Rawls, Political Liberalism (New York, Columbia University Press, 1993). 27 D Myerson, Rights Limited: Freedom of Expression, Religion and the South African Constitution (Cape Town, Juta, 1997) 18. 28 Of course, one might query whether the concepts of dignity or autonomy suggested below as a rational basis for the protection of religion are any more ‘neutral’ than the religious reasons rejected here. However, a full discussion of such a debate is beyond the scope of this chapter. 29 A Letter Concerning Toleration (1698). 30 Arts 25–28 Constitution of India. 31 Introduced by the Fair Employment (Northern Ireland) Act 1976, and since amended.

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of freedom of religion as part of a peace deal thus carries with it no tacit acceptance that religion is of value. It just represents an acceptance by all parties of a need to settle the dispute. In effect, the parties adopt a modus vivendi which does not involve any acceptance of the validity of the other side’s viewpoint.32 An alternative version of this view, which applies to all states (and not just ‘post-conflict’ societies), is that protecting religious interests within society helps to prevent alienation of minorities. Thus is it not full-scale civil war that is prevented, but more generalised social unrest within societies. Where minorities suffer religious discrimination, this is likely to lead to conflict within society. Social exclusion from education, or from participation in the political or economic life of the country, will lead to conflict and unrest, even if this is not demonstrated in violence. In practice individuals will not always surrender their religious interests in order to participate fully in society, and so it is necessary to provide some protection for these interests so that some of the social ills caused by non-participation are avoided. In effect, tolerance of different religious interests can be viewed purely pragmatically as a useful tool for preventing the social disintegration that can follow the exclusion of minorities. Applied in the context of work, religious interests should be protected in order to enable religious minorities to have access to the financial and social benefits of work, thereby increasing social inclusion of minority groups. The role of religious freedom as a method of enhancing social inclusion, and avoiding conflict, social unrest or social exclusion is thus well established, and of significant pragmatic value. However, it provides little reason to protect religion in the absence of disputes, conflict or evidence of exclusion. For example, conflict resolution and social inclusion reasoning fails to explain why we should protect mainstream religions, such as Christianity in the UK, whose adherents do not appear to be under threat of alienation from society. Nor does it provide a reason to protect minority religious groups that do not face exclusion and pose no immediate threat of social unrest. Moreover, such utilitarian reasoning provides no reason for preventing the avoidance of social conflict by other means, such as by suppressing an unpopular minority. A further limitation on the use of conflict resolution as a reason to protect religion in the context of work is that it carries no commitment to the idea that religion has any inherent value. It merely recognises that the religious beliefs are highly valued by the parties, and elicit high levels of emotion and devotion. Given that religion, under this theory, has no independent value, it would give way very readily when confronted by any other value or interest that has its own independent value, such as business interests, or other equality interests.

32 J Rawls, Political Liberalism (New York, Columbia University Press, 1993) 148. He contrasts mere modus vivendi unfavourably with the creation of an ‘overlapping consensus’ in which all parties, although holding different comprehensive world views, can share opinions on how to order the fundamentals of political life.

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‘Aesthetics’ There is no doubt that religion is hugely important to individual religious people. It provides a rich source of personal and group identity, and is immensely varied. From this it can be argued that religious freedom should be protected on the basis that it helps sustain diversity in our world. It adds to the variety of cultural practices and traditions which can be seen among different nations and peoples, and preserves a level of choice of cultural practice for future generations. Maintaining diversity can have benefits linked to individual autonomy and identity, as explored below. However, in some accounts, the benefits of maintaining diversity amount, in effect, to the view that religion should be protected because it is aesthetically pleasing:33 different religions have value because they reflect a variety of practices that have developed through our history, akin to cultural or artistic practices. The difficulty with such an argument is that although this may justify giving some weight to religious interests, the weight would be small.34 Thus the protection of different religions can be justified on aesthetic grounds, in the same way as we might protect other cultural practices, for example by providing funding for teaching art forms such as ballet or classical music. But we need a stronger moral basis for the protection of religion if it is to prevail in any conflict with other interests. Reasoning based on aesthetics also fails to match the significant level of protection available to freedom of religion in human rights documents, which suggests that religion deserves greater protection than freedom of cultural expression.35

Social Cohesion Other pragmatic reasons for protection of religion exist. One example can be viewed as a weaker version of the argument based on conflict resolution, and is the view that religion helps create social cohesion and helps many people to live moral lives. Religious groups can also serve as useful social units, enabling their members to participate in social and political life. Moreover, some religious groups provide services for their members, such as education, social and health care. Religious groups therefore serve a valuable social function, and can be generators of social capital. Again this may well be so, but it does not give any moral basis for protecting religions when their teaching conflicts with the general socially accepted mores.

33

On this argument, see B Parekh, Rethinking Multiculturalism (Basingstoke, Palgrave, 2000) 165 ff. Ibid, 166. For example, religious freedom, viewed as a civil and political right, is protected under the ECHR, and is directly enforceable against the state. If religious freedom is protected as a social, economic and cultural right, the protection will not be directly enforceable. 34 35

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Some religious practices may work to undermine social cohesion, and may undermine others’ attempts to provide social or health care. For example, a religious school may wish to offer education only to members of the religious group; or religious parents may deny their children routine immunisations. To argue for protection for the rights of groups to act in such a way, based on the idea that religion helps maintain social cohesion, is therefore problematic. Similarly, there is no reason, based on the need for social cohesion, to allow protection for those whose beliefs conflict with fundamental beliefs of the society. For example, it is difficult to argue, on social cohesion grounds, for the protection of an individual who holds the religious belief that it is wrong for married women to work. Indeed, the problem with basing protection for religious interests on the need for social cohesion is that many of the conflicts between religion and other rights arise precisely because of a lack of shared morals or values in society. None of the reasons set out so far provides sufficient reason to protect religion if it comes into conflict with other rights. A religion that is protected for aesthetic reasons will only be protected as long as no greater interest arises and, presumably, as long as it remains ‘aesthetically pleasing’: we would not argue for the maintenance of female inequality for reasons of diversity and maintaining tradition. Similarly, reasons based on social cohesion only work for as long as the religion is working to maintain cohesion. Minority religions which do not comply with the general traditions of a society would require no protection on such a basis. Thus, if religious interests are to be protected even where they conflict with other interests, we need to find an alternative reason for doing so. If we cannot find such a reason, other than for aesthetic or conflict resolution reasons, then there is no call for protection of religious interests in contexts such as the workplace. Religious interests should only be protected in such contexts if a religiously neutral but morally justified reason can be found. One religiously neutral reason for providing protection can be based on an alternative version of the social cohesion argument above. The failure of some religious groups to agree with the morals or values of mainstream society can lead them to retreat into isolated groups, risking social exclusion. Protecting the religious views of such minority groups will enable those groups to avoid exclusion. Facilitating social inclusion for groups who otherwise may risk exclusion provides perhaps the strongest secular reason for providing for the protection of religious groups even where to do so imposes a cost on others. However, that reason alone may not be enough to override other interests which may conflict with the protection of religious freedom. Moreover, it only works where the religion in question is a minority religion, and where its members risk social exclusion if they are not protected. Protection based on this ground alone is likely to lead to differing levels of protection for different religious groups, causing additional problems of coherence within the protective system. A justification for protecting religious interests that does not itself distinguish between religions can, instead, be found in the concepts of dignity and autonomy.

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Autonomy and Dignity A more robust justification for protecting freedom of religion as well as equality rights can be found in the wide debate within liberal political theory on the nature of human rights and their provenance. Although early works of political theory were based on religious understandings of the nature of humankind and its importance to God, since the Enlightenment there has been a search for a human rights theory which is not predicated on the existence of God.36 The search and its findings remain highly contested, but despite this there remains a degree of consistency among writers on the importance of the autonomy and dignity of human beings. On the basis of these moral first principles, a framework for protection for human rights can be built, among them a right to religious freedom. The basic foundational concept is the Kantian idea that humans should be treated as ends rather than means. They all have an essential dignity,37 which sets them apart from non-humans and makes them uniquely valuable.38 Dignity is not a natural, empirical, characteristic of human beings, but is a status conferred by humans on themselves, to set them apart from other species.39 It involves a moral judgement that humans are of intrinsic, incomparable and indelible worth, independent of their abilities or accomplishments.40 Though this setting apart of humankind is sometimes explained in religious terms,41 it is also a concept shared by non-religious people on the basis that humans enjoy a unique capacity for higher-level consciousness and thought. Humans have moral power, and a capacity to develop a conception of the good.42 With or without a religious explanation, the idea that human beings can expect others to respect the dignity inherent in their humanity is one that has been agreed virtually universally, perhaps most famously in the Universal Declaration of Human Rights: ‘All human beings are born free and equal in dignity and rights.’43 Identifying any substantive content for a ‘right to dignity’ is problematic, not least because many people subsist without enjoying such a right. It is not clear what

36 For an overview of the history of this thought see J M Kelly, A Short History of Western Legal Theory (Oxford, OUP, 1992). 37 For further discussion, see C McCrudden (ed), Understanding Human Dignity (Oxford, OUP, 2013). 38 E Kant, The Moral Law: Kant’s Groundwork of the Metaphysics of Morals (H J Paton, trans) (London, Hutchinson, 1963). 39 B Parekh, Rethinking Multiculturalism (Basingstoke, Palgrave, 2000) 130 ff. 40 D Réaume, ‘Discrimination and Dignity’ (2003) 63 Louisiana LR 645, 675. 41 For example, Christianity teaches that God created man in his image. Creationists may understand the creation story in a literal sense. Others understand it more figuratively, to explain the unique relationship between God and man. 42 See J Rawls, A Theory of Justice (Oxford, OUP, 1999, revised edition). 43 Art 1 UDHR. Dignity also features in the preamble to the United Nations Charter, and in the preambles to the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

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such a right should contain,44 and it is often accepted that the term ‘dignity’ functions as a placeholder because its precise content has not been articulated.45 However, despite difficulties in defining its precise content, dignity can be accepted as a value that the legal system should seek to enhance. The idea that humans should respect each other’s dignity, and that society should work to uphold and enhance the dignity of its members, provides useful first principles when seeking guidance on why the legal system should protect certain interests. The concept also requires a level of respect for individuals’ identity, enabling them to have a secure sense of themselves as individual and as part of a community.46 This concept of dignity would seem to encompass at least two other elements. First is the idea of equality between humans.47 Humans may not be equal in their abilities and attributes, but they are equal in their humanity and moral worth. There is an objective good in upholding their equality, and in attempting to create a society in which all can flourish. Second is the concept of autonomy, that human beings should be able to develop their own ideas of the good and exercise control over their lives.48 Dworkin49 argues that, by virtue of being human, all people share a fundamental right to equal concern and respect. Although he justifies his commitment to human rights by using equality rather than autonomy as the foundational concept, the conclusion remains that human beings have rights by virtue of some essential quality inherent in being human. Some would argue that we have a right to equality because of our autonomy; others that we have a right to autonomy because of our essential equality. Even if there is no agreement as to which is the foundational concept, they are deeply interlinked, and there is agreement that a commitment to providing protection for human rights can be based on the concepts of equality, dignity and autonomy.50 Terms such as the dignity and the equal moral worth of humanity are, of course, somewhat imprecise. However, as acknowledged by Raz, this imprecision is ‘but a reflection of the incommensurabilities with which life abounds’.51 The basis for endowing humans with dignity and autonomy was their capacity for high level consciousness or conscience, independent thought and the potential to develop an individual concept of the good.52 Humans also possess the capacity to develop a sense of personal identity and it is important to preserve the self-respect 44 See G Moon and R Allen, ‘Dignity Discourse In Discrimination Law: A Better Route To Equality’ [2006] EHRLR 610. 45 C McCrudden (ed.) Understanding Human Dignity (Oxford, OUP, 2013), 11. 46 D Réaume, ‘Discrimination and Dignity’ (2003) 63 Louisiana LR 645, 675. 47 B Parekh, Rethinking Multiculturalism (Basingstoke, Palgrave, 2000) 132. 48 J Rawls, A Theory of Justice (Oxford, OUP, 1999, revised edition). 49 See R Dworkin, Taking Rights Seriously (London, Duckworth Press, 1977); and R Dworkin, A Matter of Principle (Cambridge, Mass, Harvard University Press, 1985). 50 For a much fuller explanation of these ideas, see D Feldman, ‘Human Dignity as a Legal Value’ [1999] PL 682. 51 J Raz, The Morality of Freedom (Oxford, OUP, 1986) 409. 52 J Rawls, A Theory of Justice (Oxford, OUP, 1999, revised edition).

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and sense of self-worth of all individuals. These aspects of dignity interrelate: one’s sense of identity can help to shape one’s concept of the good; and the concept of the good feeds into the individual’s sense of identity.53 This is not to say that the concept of dignity requires that individuals should never suffer a sense of embarrassment or shame,54 but that they should not be made to feel to be inferior at a more fundamental level: they should be sure of their essential equality and dignity as human beings, with a sense of self-worth.55 The need for identity and self-worth, arising from basic human dignity and autonomy, leads to the view that for individuals to flourish they need to enjoy the freedom to choose their own concept of the good.56 In order for that choice to be meaningful, it is essential to protect freedom of conscience and thought, including the freedom to choose, or to change, religion.57 There is no doubt that, given freedom of choice, there will develop a range of understandings of what a concept of the good might contain. Protecting freedom of conscience will involve protecting a wide range of beliefs, including the beliefs of those whose conscience and sense of personal identity are religious in character. Some find their sense of identity and worth in their beliefs about their relationship with a supreme being; others’ sense of identity may be more rationally based and may have no religious aspect. Many will want to ask questions about their nature and place in the universe. Indeed, Nussbaum argues that an ability to ‘search for meaning of life in one’s own way is a central element of a life that is fully human’.58 For some, a sense of the religious enables them to make other important choices necessary for the autonomous life.59 Even if one believes that the secular rather than the religious view of life is correct, the freedom of others to develop their own religious view of the good deserves some protection.60 Note that the claim is not for absolute protection, merely for religion and belief to be within the category of interests deserving of (qualified) protection. A case for respecting a range of different concepts of the good can also be made on the basis of equality: if all humans are equal, and we know that they will have different conceptions of the good, they will deserve equal respect, in spite of their different conceptions of the good.61 For religious individuals, religion is an important source of identity. A personal sense of identity is closely connected 53

See D Réaume, ‘Discrimination and Dignity’ (2003) 63 Louisiana LR 645, 675. See D Feldman, ‘Human Dignity as a Legal Value’ [1999] PL 682. 55 Rawls identifies self-respect as a ‘primary good’: J Rawls, A Theory of Justice (Oxford, OUP, 1999, revised edition). 56 See T Khaitan, A Theory of Discrimination Law (Oxford, OUP, 2015) for the view that discrimination law should be justified on the basis of the desirability of allowing each person to pursue a good life, rather than on purely egalitarian concerns. 57 M Nussbaum, ‘A plea for difficulty’ in S M Okin (J Cohen, M Howard and M C Nussbaum, eds), Is Multiculturalism Bad for Women? (Princeton, NJ, Princeton University Press, 1999). 58 Ibid. 105-114 59 T Macklem, ‘Faith as a Secular Value’ (2000) 45 McGill LJ 1. 60 M Nussbaum, ‘A plea for difficulty’ in S M Okin (J Cohen, M Howard and M C Nussbaum, eds), Is Multiculturalism Bad for Women? (Princeton, NJ, Princeton University Press, 1999). 61 D Réaume, ‘Discrimination and Dignity’ (2003) 63 Louisiana LR 645, 678. 54

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with self-respect and self-worth, and is a valuable aspect of autonomy. Hence, enabling an individual to maintain a sense of identity is a valid method of upholding individual self-respect and dignity. For the majority to impose its values on a religious group, or to force a minority group to conform to the views of the majority, involves the imposition on the group of an alternative concept of good, and undermines the autonomy and dignity of the minority group.62 A reduced level of autonomy in this regard leads to a failure properly to treat members of the minority group as the moral equals of the majority. The case for protecting religious interests could equally be based on the notion of autonomy: maintenance of a full range of beliefs about the contents of the good life is a necessary precondition to full respect for human autonomy. If a person is to experience the freedom to choose that is inherent in an understanding of autonomy, he or she requires the existence of a range of morally acceptable options to choose from. Thus the existence of a range of understandings of the content of the good life is vital for members of society to have adequate autonomy: for there can be no autonomous choosing if one lacks valid options to choose from. Thus ‘valuing autonomy leads to the endorsement of moral pluralism’.63 However, although the discussion above has referred to choice, protection of religious interests does not presuppose that religious views are consciously chosen. The argument based on autonomy, dignity and equality includes the view that individual autonomy requires that one remain free to live according to one’s conscience. If one believes that there is a god who requires one’s devotion, respect for human autonomy requires some form of protection of one’s freedom to perform that devotion.64 Whether the individual believes the devotion to be a chosen activity or not does not really change the argument. Providing some space, figuratively speaking, for an individual to perform religious devotions is part of the respect due to her as an autonomous, equal member of the human race. Thus, as discussed above, the question of whether religion is chosen or not does not materially change the case for its protection. It remains clear that infringing freedom of conscience will undermine the ability of the individual to live the autonomous life, in terms of either ‘choosing’ a concept of good or acting on the principles and values identified by one’s conscience as those by which to live.65 One might argue that protecting religious interests for the reasons set out above runs the danger of protecting any belief that is important to someone on the basis of respect for the inherent human dignity of the belief holder; or that any hobby which becomes an important part of an individual’s sense of identity should be 62 See B Parekh, Rethinking Multiculturalism (Basingstoke, Palgrave, 2000), who argues that cultural diversity should be protected because all cultures provide understandings of the good life. 63 J Raz, The Morality of Freedom (Oxford, OUP, 1986) 398, and see also 408. 64 This will not, of course, be an absolute right. It may need to be balanced against other competing interests. 65 ‘One can see conscience as one of the fundamental aspects of human capacity, and interfering with freedom of conscience prevents people both from choosing a set of values by which to live and from giving effect to those values’: D Feldman, ‘Human Dignity as a Legal Value’ [1999] PL 682, 696.

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protected. Indeed, one of the difficulties in basing human rights protection on the concepts of autonomy and dignity is that the concepts are so wide-ranging that virtually any interest can be classed as a right worth protecting.66 However, although it may not be polite to pour scorn on a matter that another holds dear, if one is to protect practices or beliefs on grounds of dignity, it is those which feed into an individual’s ability to make sense of the world, and through which they develop a sense of the good, that require protection. Thus a person’s interest in being allowed to participate in, for example, country dancing because of its importance to that person as a form of artistic expression will not require the same level of protection as a belief relating to the existence of a supreme being. It is therefore not every interest that will warrant protection in the name of respect for autonomy and dignity.67 Equally, the claim is not for absolute legal protection for religion and belief, merely that religious and belief interests should have some form of protection, albeit of a qualified nature. The argument set out above leads to the conclusion that religious freedom is an important aspect of the individual autonomy and self-respect due to all people as a result of their humanity. If we accept that all humans are equal, we need to have concern for the different world views that they develop, although any interest that is protected on this basis will not be protected absolutely but will need to be balanced against other competing interests. Of course, this reasoning applies to many other aspects of individual identity. To demonstrate that respect for human equality and dignity involves respect for religious world views is not to suggest that this aspect of human identity should take precedence over any other, such as gender, sexuality or race.68 It is merely to demonstrate that religious interests are valid interests that need consideration alongside other interests that flow equally from a concern for human dignity and equality.

The Content of Religious Interests In the jurisprudence of Article 9 ECHR, religious interests are divided between the forum internum and the forum externum. The first refers to the right to have inner thoughts and beliefs, and the protection provided is absolute. However, this is likely to be of little import in the context of the workplace, as it only applies to the internal thoughts and beliefs of the individual, which are unlikely to be known to the employer. It is once religious beliefs are expressed or acted upon that difficulties are likely to occur, and such actions do not form part of the forum internum.

66 See C Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the Century (Oxford, Hart Publishing, 2000) and the discussion at p 35 above. 67 See discussion at pp 18–20. 68 In the context in which the current work is set, these are the other main interests that arise from a concern with dignity, but it is not an exhaustive list.

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Acting on one’s beliefs is protected under Article 9 ECHR in the form of a right to ‘manifest … religion or belief, in worship, teaching, practice and observance’, alone or with others. The right is not absolute, and can be restricted where proportionate to do so to safeguard the rights of others. It is the freedom to manifest religion which has the most potential to affect religious people in the workforce.69 For example, a work uniform may interfere with a religious employee’s right to manifest her religion. Similarly, the employee who requires time off for religious observance or who requires special dietary provision may claim to be manifesting religion. An understanding of the content of religious rights based on a binary division between inner belief and manifestation of that belief may miss some of the additional aspects of religious belief and practice as experienced by religious individuals. Edge70 divides religious rights into four categories: the right to a religious belief; the right to a religious identity; the right to be a member of a religious community; and the right to act on such belief, identity or membership. This categorisation usefully exposes the range of interests that a religious individual may have, and may help to define more clearly the range of behaviours or actions that may warrant protection. For example, the case law on the meaning of a manifestation of religion distinguishes between actions that are required by a religion, which warrant greater protection, and those that are merely motivated by a religion, which may be overridden more readily.71 Understanding religious interests as including interests in expressing a religious identity may provide an additional explanation for why religiously motivated behaviour should be protected. An individual may believe a set of religious tenets; she may then have a choice about how to react to those beliefs, particularly where a specific response is not clearly mandated by the religion. For example, the decision to follow a religious dress code may be part of a desire to express a religious identity as much as an expression of the beliefs themselves. The additional categorisation of religious interests to include the recognition of matters of identity also reflects the role of religion in upholding personal autonomy and identity, which was used above as the justification for protecting religious interests.

Religious Interests and Group Rights The categorisation of religious interests as including the right to belong to a community suggests that religious interests also contain a collective dimension, even though the recognition of religious interests presented above was cast in terms 69

See Ch 4 for more detail on the meaning of manifestation of religion under Art 9 ECHR. P W Edge, ‘Religious rights and choice under the European Convention on Human Rights’ [2000] 3 Web JCLI. 71 See discussion at pp 107–110 below. One of the practical difficulties of the distinction is that it can require courts to determine religious questions such as whether a particular practice is required by a religion or not. 70

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of individual rights, based on the principles of individual autonomy, dignity and equality. Indeed, the liberal basis of this line of reasoning is clear, and is based on a notion that human beings are individual and separate, with their own interests and moral rights. The right to freedom of religion is, on this view, a personal, individual interest. However, the concept of dignity, and the sense of identity which forms part of that, may demand some respect for community rights. This is because involvement in communities which share one’s identity can be crucial to the development and enjoyment of a sense of identity and the experience of selfrespect that goes with the valuing of that identity.72 Moreover, many religions contain a collective dimension in their practice. Groups of religious people may wish to have a religious leader, and may wish to be involved in collective acts of worship or other rites of religious observance. It is arguable that full religious autonomy for the individual will therefore need to include a group dimension. There is some debate over whether religious interests should be understood to comprise an individual and a group dimension, which co-exist as separate but complementary aspects of religious freedom. For example, as well as being based on belief, religion can be understood in terms of culture, identity, practice or descent,73 and if defined in this way it does seem to be more collective in nature.74 However, the difficulty with this collective view of religion is that if one recognises collective interests as having a separate independent existence, they could continue to have weight even if no individuals actually hold the beliefs being collectively represented. It is not clear on what basis group rights should be protected in the absence of individuals standing behind the collective. The alternative view, taken here, is that collective rights are an important aspect of individual rights, but that they derive their value from individual interests. Full enjoyment of the individual interest in freedom of religion entails a measure of protection for the collective expression of that freedom, but collective rights gain their validity and value from the individuals who make up the collective.75 Although it may be a derivative interest, there is a clear collective dimension to religious freedom: comprehensive freedom of religion will require some protection for the interests of associations of religious people. Enjoyment of religious freedom thus comprises rights to manifest and practice the religion, alone or with others, and rights to protection of one’s religious identity by participation in group activity, freedom of choice of religious leader, and other collective rights. 72

D Réaume, ‘Discrimination and Dignity’ (2003) 63 Louisiana LR 645, 678. See, eg, R (on the application of E) (Respondent) v Governing Body of JFS and the Admissions Appeal Panel of JFS [2009] UKSC 15. 74 See, on the failure of liberal views to take proper account of collective interests, B Parekh, Rethinking Multiculturalism (Basingstoke, Palgrave, 2000). See also R Ahdar and I Leigh, Religious Freedom in the Liberal State (Oxford, OUP, 2005) Ch 2; J Rivers, ‘Religious Liberty as a Collective Right’ in R O’Dair and A Lewis (eds), Current Legal Issues, vol 4: Law and Religion 227 (Oxford, OUP, 2001); and J Rivers, The Law of Organized Religions: Between Establishment and Secularism (Oxford, OUP 2010). 75 J Raz, The Morality of Freedom (Oxford, OUP, 1986) 208. See also J Donnelly, Universal Human Rights, Theory and Practice (New York, Cornell University Press, 1989) 151 ff. 73

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Freedom of Religion and Freedom from Religious Discrimination Not everyone has a religious world view, but for those who do, it is an important aspect of their concept of self, and a significant part of their conception of the good. On the basis of the fundamental role religion plays in the lives of adherents, the case has been made for its protection as part of the respect that should be afforded to individual human dignity. Such an argument applies equally to all religious world views, as well as other philosophical beliefs relating to man’s nature and place in the universe.76 As personal autonomy and equality are so deeply interlinked, it becomes clear that those with different views and values are entitled to equal concern and respect as individuals, even if one does not respect the views themselves. It is not tolerable for a society to allow differences in social and economic chances to be based on religious difference, as to do so is to deny equal worth to individuals. As noted above, it makes little practical difference whether the concern and respect is due to the essential equality of individuals, or whether the equality of individuals arises out of their essential dignity: in either case we can reach the position that those with different religious views should be tolerated,77 and that individuals should be treated equally in terms of concern and respect, without distinctions drawn on grounds of religion.78 The result of this line of argument is that freedom of religion and freedom from discrimination on grounds of religion are closely linked.79 Freedom from religious discrimination is required because of the fundamental equality of human beings. It is unjust to allow inequalities in life prospects to arise as a result of an individual’s religion or belief. Respect for individuals’ inherent dignity entails respect for their ability to come to their own conclusions about fundamental questions relating to the nature of life: to allow the exercise of this freedom to result in unjustified differences in life prospects infringes individual dignity. Freedom of conscience is a fundamental part of individual dignity and autonomy. That freedom will be fettered if its exercise leads to an unjustified reduction in life chances. Full and meaningful enjoyment of autonomy, equality and dignity therefore requires protection for both freedom from religious discrimination and freedom of religion.

Conclusion Arguments based on autonomy, dignity and equality give good grounds for providing protection for freedom of religion, freedom from religious discrimination, 76

See discussion above at pp 12–31. This does not mean that all beliefs, however abhorrent, should be accepted as valuable. 78 J Donnelly, Universal Human Rights, Theory and Practice (New York, Cornell University Press, 1989). 79 They are not the same concept, however. Evans argues that non-discrimination ‘is simply a tool that assists the realization of religious liberty; a means not an end’: M Evans, ‘Religious Liberty and Non-Discrimination’ in M L P Loenen and P Rodrigues (eds), Non-Discrimination Law: Comparative Perspectives (The Hague, Kluwer Law International, 1999) 120. 77

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and some level of accommodation of religious practice. However, the basis for protecting religious interests is the same as that for protecting other rights, such as gender and sexual orientation equality, with which the religious interests may well conflict. The question of how to resolve the conflict between the right to religious freedom and equality on grounds of gender or sexuality is highly contested, and it is not proposed to attempt to resolve it fully here.80 Instead, the issues are addressed in the particular context of the workplace. The difficulty here is that the right to freedom of religion is not absolute, and it may be argued that restricting its exercise at work is justified, where conflicts arise with the rights of others. It is therefore necessary to establish whether religious interests should be protected in the work environment; or whether it is adequate to limit the protection of religious interests to the world outside work.

III. Protecting Religious Interests in the Work Context Clearly, the right to religious freedom is not an absolute right. For example, in Article 9 ECHR it is accepted that restrictions on the manifestation of religion can be imposed where necessary to safeguard the rights of others. Moreover, it may be that the solution to the conflict between religion and other interests in the context of the workplace will be to rely on the fact that one does not have an enforceable right to a job. Hence any conflict between rights that occurs at work can be resolved by the religious individual’s resigning: religious freedom persists, and indeed is arguably protected by, the right to resign.81 However, it will be argued below that such an approach fails to provide adequate protection for religious interests, given the strength of the argument in favour of their protection set out above.

Should Religious Interests be Protected at Work? It has been proposed above that it is legitimate for society to provide some protection for religious interests without needing to resort to religious arguments. What has not been established is why this protection should extend to the workplace, given the undeniable fact that no one is forced either to enter or remain in the workplace. 80 For some of the debate see: M Nussbaum, ‘A plea for difficulty’ in S M Okin (J Cohen, M Howard and M C Nussbaum, eds), Is Multiculturalism Bad for Women? (Princeton, NJ, Princeton University Press, 1999); B Parekh, Rethinking Multiculturalism, (Basingstoke, Palgrave, 2000); C Kukathas, ‘Are There Any Cultural Rights?’ (1992) 20 Political Theory 105; W Kymlicka, Multicultural Citizenship (Oxford, OUP, 1995); W Kymlicka, Liberalism, Community and Culture (Oxford, OUP, 1989); B Barry, Culture and Equality (Cambridge, Polity Press, 2001); P Kelly (ed), Multiculturalism Reconsidered (Cambridge, Polity Press, 2002); J Raz, Ethics in the Public Domain (Oxford, OUP, 1994) Ch 8. 81 See, eg, the approach of the ECtHR in the early religion at work cases: Ahmad v UK (1981) 4 EHRR 126 and Stedman v UK (1997) 23 EHRR CD168.

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The ‘Right to Resign’ At its most basic, the employee’s freedom of religion is protected through the employee’s freedom to resign, if work and religion are incompatible. The relationship between employer and employee is voluntary, and if the employee has religious objections to complying with an employer’s requirements, he or she can choose not to take up the employer’s offer of employment. This freedom remains the ultimate protection for religious freedom.82 To take an extreme example, if a programme of ‘religious instruction’ were imposed upon staff who were then forced to attend work, there would clearly be a breach of religious freedom. In such circumstances, a right not to attend work would provide protection against the interference with the right to freedom of religion. The right not to work against one’s will is well protected both within the interpretation of domestic labour law and in international human rights law. In domestic law it can be seen in the refusal of courts to require specific performance of employment contracts. Where employees leave their employment in breach of notice terms or other restrictive covenants, courts will not grant specific performance as a remedy to employers. Instead they opt for damages, or put employees on ‘garden leave’, rather than requiring employees to attend work unwillingly.83 Thus, freedom of religion at a fundamental level is protected by freedom to resign. Another illustration of the basic limits on religious freedom at work is that employers are never going to be required to accommodate every religious practice or belief at work: for example, a pacifist could not apply for a combatant role in the armed forces, refuse to take part in active service and then complain that she has been denied full freedom of religion or belief. The right to freedom of religion or belief does not entail a right to be employed in the employment of the religious adherent’s choice, or a right to demand that any religious practice be accommodated. Indeed, it is well established that religious observance does not have to be cost-free for the observer. Under Article 9 ECHR, the freedom to practice religion, or to participate in religious observance, is not absolute. It is only protected where it is proportionate to do so. This suggests that it is not an infringement of Article 9 to burden the practice of religion where it is proportionate to do so, for example by refusing to accommodate a religious practice that places too much of a cost on the employer. 82 See A Bradney, Religions, Rights and Laws (Leicester, Leicester University Press, 1993), who suggests that the protection of religious interests in employment is relatively unproblematic, because the employee remains free to resign. See also R Epstein, Equal Opportunity or More Opportunity? The good thing about discrimination (London, Civitas, 2002), who argues that the freedom to resign is the best protector of employee interests, as the threat of resignation will cause employers to change their practices or risk losing good staff and a good reputation. See also the counter-arguments by S Deakin in the same volume. 83 There is no legally enforceable duty to work. The only sense in which such a duty exists is as part of the social security system, where some benefits are dependent on the recipient’s willingness to try to find work, and to take suitable work that is available.

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It is clear, then, that in the final analysis a degree of protection for the religious interests of employees is provided by the right to resign. However, even though resigning may be the ultimate freedom, to limit protection to this somewhat drastic remedy may be to fail to provide adequate protection to religious interests.84 In order to determine the proper scope for the protection of religion in employment, it is worth considering the reasons for its protection in the context of work.

The Case for Protection in the Workplace It was established above that the right to freedom of religion is well-founded and works to help sustain individual autonomy and dignity. To fail to provide any protection for the right in the work context is to fail to protect individual autonomy and dignity in a very important sphere of life. Clearly, the purpose of most workplaces is to engage in business and generate profit, not to create space for religious observance; and it is certainly not suggested that workplaces should have as a primary concern the protection of religious interests. Yet employees spend a significant part of their lives at work, and it is not feasible to expect them to leave their interests in autonomy and dignity behind when they enter the workplace. It might be tempting to suggest that an answer to the conflict between work and religion is for religion to be confined to the private sphere of the home, with work forming part of the public sphere. However, requiring the separation of work and religion in this way is not a practicable option for many workers. Some individuals’ work is religious in nature, so such separation is impossible; for others, who may work at home, making any separation is impracticable. Indeed, the difficulty of separating work from other parts of life is well recognised in the case law of the EtCHR: it is not always possible to distinguish clearly which of an individual’s activities form part of his professional or business life and which do not. Thus, especially in the case of a person exercising a liberal profession, his work in that context may form part and parcel of his life to such a degree that it becomes impossible to know in what capacity he is acting at a given moment of time.85

Special problems arise regarding religious practices which apply to individual’s whole lives and which cannot easily be separated between the home and work spheres. Religious adherents often observe special behavioural codes of conduct, such as dress codes or practices of prayer. These practices have supernatural 84 This argument was accepted by the ECtHR in Eweida and others v the United Kingdom App nos 48420/10, 59842/10, 51671/10 and 36516/10 (Judgment, 15 January 2013). See E Howard, ‘Religious Rights versus Sexual Orientation Discrimination: A Fair Deal for Everyone’ (2015) 10 Religion and Human Rights 128; M Pearson, ‘Article 9 at a crossroads: interference before and after Eweida’ (2013) 13(3) Human Rights Law Review 580–602; S Ouald Chaib, ‘Religious Accommodation in the Workplace: Improving the Legal Reasoning of the European Court of Human Rights’ in K Alidadi, M-C Foblets and J Vrielink (eds), A Test of Faith? Religious Diversity and Accommodation in the European Workplace. (Farnham, Ashgate, 2012). 85 Niemietz v Germany (1992) 16 EHRR 7, para 29. See discussion at p 102.

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s ignificance to the believer, and often apply at all times, rather than being restricted to a religious observance at a particular time of the day or week. Of course, some practices may be accommodated outside work; observance such as a requirement to pray each day may be observed without interfering with the workplace.86 But the same is not true of other requirements. Religious dress codes may require a woman to have her head covered at all times when in public. Such a requirement cannot simply be dropped during working hours; indeed, it may be that work is the main forum in which the requirement arises, precisely because it is not a private space. To require the individual to reserve this type of religious observance to the world outside work amounts to a denial of the option to comply with the religious requirement. Whether it is acceptable to deny this option will be considered later; at this stage, it is sufficient to note that some religious requirements apply at all times, and cannot be limited to the non-work sphere. Even for those who do not have specialised religious duties, there are sufficient objective benefits attached to working life that mean that religious interests should be given some degree of protection.

Economic Benefits of Work Work clearly has significant instrumental value for most people. Work provides the main income stream for most people, enabling them to house, clothe and feed themselves and their dependants. For many, work also provides access to pension provision, sickness benefits, and a range of insurance services such as deathin-service payments. Paid maternity and paternity leave, tax credits for child care, and compensation for redundancy are also available for employees, with some employers providing substantial additional benefits such as subsidised housing, travel or health insurance. As well as the economic benefits provided directly by employers, there are other significant economic benefits of being in work, for example the fact that substantial sums of money can be borrowed on the promise of future earnings, providing those in work with the financial resources to buy their own homes. Those with independent financial means may also be able to achieve these economic benefits, but for the vast majority, paid work (whether as employee or self-employed) is the only way to access them. Access to such financial benefits also encourages social cohesion and helps to reduce social exclusion.87

Non-Financial Benefits of Employment Apart from the obvious and extensive economic benefits of work, there is significant support for the view that work brings other non-financial benefits. Work is related to concepts of responsibility and citizenship, and is the medium through

86 Unless prayer is required so often and for so long that it is incompatible with completing a day’s work. 87 H Collins, ‘Discrimination, Equality and Social Inclusion’ (2003) 66 MLR 16.

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which many people gain self-respect and self-realisation,88 and a sense of participation and inclusion in society.89 Engaging in the workforce can promote engagement in wider civil society for otherwise marginalised groups. In this respect, the workplace can be viewed as a site of inclusion and integration for religious minorities. Enabling participation in work can lead to greater participation of minority groups in civic life, leading in turn to greater integration.90 Indeed, the importance of employment as a key part of the process of integration is recognised in a number of EU social policy statements.91 Without this participation and integration, minority voices within the community will be far weaker, ensuring a continuance of their marginalisation.92 Beyond its role as a forum for integration, however, the workplace can also be a significant site for individual interests too, a forum in which the individual employee enjoys some level of personhood.93 The fact that work fulfils a number of roles beyond the purely economic in the life of the individual worker is fundamental to the recognition that human rights such as the right to religious freedom should have some traction in the workplace.94 For example, work can act as a signifier of social status; it may help uphold individual dignity; and it may help achieve personal fulfilment.95 Many people invest psychologically in their work; one’s occupation is one of the first pieces of information that people share when meeting, suggesting that it is an important part of many people’s sense of identity.96 Of course, not everyone will gain their sense of identity from work, and the social status provided by work is not experienced by all workers. However, for many, the personal fulfilment gained from work means that a level of protection for their wider human rights and interests is needed in the work context. 88 See H Collins, ‘Is there a Human Right to Work?’ in V Mantouvalou (ed), The Right to Work (Oxford, Hart Publishing, 2015) 17; and A Bogg, ‘Only Fools and Horses: Some Sceptical Reflections on the Right to Work’ in V Mantouvalou (ed), The Right to Work (Oxford, Hart Publishing, 2015) 149. 89 V Schultz, ‘Life’s Work’ (2000) 100 Colum LR 1881. 90 For a discussion of the role of the law on religious discrimination in relation to integration and migration, see L Vickers, ‘Migration, Labour Law and Religious Discrimination’ in C Costello and M Freedland (eds), Migrants at Work: Immigration & Vulnerability in Labour Law (Oxford, OUP, 2014). 91 eg Council Document 14615/04, ‘Common Basic Principles for Immigrant Integration Policy in the EU’ (19 November 2004). See also the opinion of AG Kokott in Achbita & Anor v G4S Secure Solutions NV [2016] CJEU C-157/15 [123] where it is recognised that the principle of equal treatment is intended to make it easier for disadvantaged groups to gain access to employment and occupation, in order to promote their participation in economic, cultural and social life and the realisation of their potential. 92 See A Hirschman, Exit, Voice and Loyalty (Cambridge, Mass, Harvard University Press, 1970), for the argument that groups that are traditionally discriminated against are particularly in need of a voice, as the other method of getting heard, exit, is not effective. 93 See M Finkin, ‘Menschenbild: The Conception of the Employee as a Person in Western Law’ (2001–02) 23 Comp Lab L & Pol’y J 577. 94 Again, this is not to say that such rights require absolute protection at work, it is merely to recognise that the rights should survive entry to the workplace. 95 H Collins, ‘Is there a Human Right to Work?’ in V Mantouvalou (ed), The Right to Work (Oxford, Hart Publishing, 2015) 17. 96 K Karst, ‘The Coming Crisis of Work In Constitutional Perspective’ [1997] Cornell LR 523, 533; and V Schultz, ‘Life’s Work’ (2000) 100 Colum LR 1881, 1891.

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However, although the importance of work as part of one’s identity and a means of personal fulfilment is significant, it should not be overemphasised. It was asserted above that religious interests should be protected on the basis that religion and belief form an essential aspect of personal identity, fundamental enough to warrant significant protection, but that the same would not be said of other less important aspects of personal identity, such as a hobby. The sense of identity or personal fulfilment granted by employment is probably of similar weight in any proportionality test as that provided by participation in other activities outside work. It may be important to the individual, but may not be so strong that it should outweigh other interests based on individual autonomy. A more objective work-related benefit, then, is the psychological benefit of active participation in the workforce,97 including a reduced level of depression, an improved sense of well-being and higher self-esteem. These benefits are enjoyed by all types of employee, not only those doing high status work that one might expect to carry such benefits.98 The fact that these non-financial benefits are felt by all workers, not only those who gain traditional esteem or high financial reward, suggests that being in work does provide objective non-financial benefits. Yet it also suggests that it is not necessarily being in a particular job that brings these benefits: the benefits may be derived from any job. Proper treatment for religious observers will therefore not necessarily require that a particular person should be accommodated in a particular job, or in a job of his choosing. However, if a failure to accommodate religion makes it very difficult for those of a particular religion to participate at all in the workforce, it will amount to a significant failure to protect those who hold the religious views in question, given the value of work for individual human flourishing. Recognition of the importance of work in non-economic terms is clear within modern employment law, which increasingly requires respect for autonomy and dignity at work. The importance of the non-financial benefits of work, and its role in upholding individual identity and dignity, has been recognised in the recent development of the content of the employment contract and the creation of specific employment rights. The new ‘family friendly’ employment rights99 can be viewed as a recognition of the importance of work to individuals, as well as being economically driven. Moreover, legislatively imposed requirements on employers to consult with employees on redundancies,100 protection for the collective rights of employees,101 and rights to union recognition102 arguably reflect the idea that the workplace is more than merely a means to economic benefit for staff or 97

For references see V Schultz, ‘Life’s Work’ (2000) 100 Colum LR 1881, 1890. Ibid, 1892. 99 See, eg, Working Time Regulations 1998 (SI 1998/1833), Maternity and Parental Leave etc Regulations 1999 (SI 1999/3312), Work and Families Act 2006, Shared Parental Leave and Leave Curtailment (Amendment) Regulations 2015 (SI 2015/552). 100 Trade Union and Labour Relations (Consolidation) Act (TULRCA) 1992, s 188. 101 TULRCA 1992. 102 Employment Relations Acts 1999 and 2004, amending TULRCA 1992. 98

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employer. If economics were the only driver of employment legislation, many of these employment rights would not strictly be needed. The reason for protecting job security, and the imposition of workplace democracy, must be for reasons connected to the importance of work to the individual rather than merely the pure economic benefit of the employer. After all, dismissal of staff, and their replacement by others, causes no net loss of employment; and employees who are unfairly dismissed can receive compensation even if they immediately find employment elsewhere. Developments in the duty of trust and confidence which is implied into employment contracts also reflect the increasing recognition of the non-financial significance of work to the worker.103 For example, the duty of trust and confidence owed by the employer goes well beyond preserving employees’ economic interests, to protect them from abuse or insult from their colleagues or others.104 It also extends beyond the treatment of employees during working hours, and provides a duty to compensate where the employer’s conduct has damaged the employee’s future career prospects,105 and a general duty to safeguard the employee’s economic interests.106 In Johnson v Unisys, the fact that the employment relationship must involve the observance of fundamental human rights was recognised.107 It is thus well recognised by courts that work fulfils more than just an economic role in the lives of workers. This forms part of a general trend towards recognition of a right on the part of employees to dignity, respect and autonomy both at work and beyond.

Protecting Religion for Equality Reasons The reasons given above for protecting religious interests at work are based on the idea that employment is such an important aspect of life that to deny religious protection in that sphere is to create a significant infringement of religious freedom in practice. Denial of protection at work amounts to a significant reduction in religious freedom. The argument for protecting religion based on its value as an aspect of self-realisation and human flourishing is given additional weight when equality is added to the equation. It has been argued above that work provides many benefits, economic, psychological and social. The principle of equality demands that all people should have equal access to such benefits, and that life chances should not be dependent on holding a particular world view. Some people find it easy to access these benefits, 103 eg, in Gogay v Hertfordshire County Council [2000] IRLR 703 there was breach of the term of mutual trust and confidence, even though the suspension was with pay. The loss to the employee was therefore not merely economic. 104 eg, see Isle of Wight Tourist Board v Coombes [1976] IRLRL 413, and Moores v Bude Statton Council [2001] ICR 271, in which it is accepted that rudeness and abuse from someone at work can give grounds for a claim of breach of the terms of the employment contract. 105 Malik v BCCI [1997] 3 All ER 1 and Spring v Guardian Assurance plc [1994] 3 All ER 129. 106 Scally v Southern Health and Social Services Board [1992] 1 AC 294. 107 Johnson v Unisys [2001] UKHL 13, per Lord Hoffman at [37].

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because there is no incompatibility between their beliefs and employers’ requirements. Such individuals will have an advantage over those whose religious beliefs make compliance difficult or impossible. Moreover, although many of the requirements of employers may well appear to be religiously neutral, it can often be the case that even apparently neutral workplace practices in fact put individuals from minority religions at a disadvantage. Thus what appears to be similar treatment leads to religious inequality in terms of access to employment. The most obvious example of religious practices that may be easier or more difficult to reconcile with work concerns days of rest and the requirement to attend work during the normal working week. For Christian workers in the UK, the weekly religious day of rest, together with the major religious holidays, coincide with the normal working week and working year, meaning that most workers enjoy a day off from work on Sundays, as well as time off at Christmas108 and Easter. This means that religiously observant Christians will rarely come across work rules with which they cannot comply, unless they work in an area of employment that requires staffing all week. This shaping of the ‘normal’ working calendar around the traditional Christian year, creates a work system that is compatible with mainstream Christian practice.But this is not the case for those of different faiths. Beyond the shaping of working time, there are other ways in which different religious groups may find it easier or harder to combine work and religious practice. These relate to the range of different practices that can be in play, such as religious dress codes and dietary laws. These again can be difficult to accommodate with traditional western working practices—practices that have already adapted to Christianity due to its dominance in Western Europe over recent centuries.109 However, there may be additional, more deep-rooted reasons why some religious groups have more difficulty than others in complying with what appear to be religiously neutral workplace requirements on working time or dress codes, and these reasons may be related to aspects of the religions themselves. Some religions, such as Protestant Christianity, have a theology focused on belief, and this can make it reasonably easy to adapt to the secular workplace.110 This focus on belief, or orthodoxy, rather than on practice, means that dress codes, dietary rules and prayer rituals tend to be less central as signifiers of religious observance, leading to fewer difficulties in adapting to workplace rules and practices. In contrast, other religions, such as Judaism and Islam, focus more on orthopraxy—a concern 108 Note, however, that the timing of Christmas probably reflects a much earlier accommodation by Christians of the traditions of pagan religions. 109 P Cumper, ‘The public manifestation of religion or belief: challenges for a multi-faith society in the twenty-first century’ in R O’Dair and A Lewis (eds), Current Legal Issues, vol 4: Law and Religion (Oxford, OUP, 2001). 110 See generally M Juergensmeyer (ed), The Oxford Handbook of Global Religions (Oxford, OUP, 2006). For further discussion see L Vickers, ‘Religious Freedom: Expressing Religion, Attire and Public Spaces’ (2014) 22 J L & Pol’y 591.

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for correct religious practice as a signifier of religious adherence. In these traditions, codes of conduct relating to attire, diet and prayers have greater prominence as means to practise and observe religion, and these religious practices can cause conflicts at work. If these theological understandings are brought to bear on the issue of inequality as regards religion and the workplace, it becomes clear that there is more than one way in which a supposedly neutral workplace rule can be non-neutral. Not only are rules such as those prohibiting the wearing of religious dress at work, or refusing time off on Saturdays, likely to have a disparate impact upon adherents of minority faiths because their rules are less likely to be compatible with mainstream social norms; but also, some religions are more likely in the first place to have rules of practical religious observance that conflict with workplace norms. The cumulative effect of a Christian-based working calendar, together with greater significance given to practical observance from some religions, means that failure to adapt the workplace to accommodate religious practice can lead to significant inequality as between different religious groups in their experience of integrating their religion with work. The resulting inequality in the ease with which groups can comply with employer demands in a way that is compatible with religious duties can lead to inequality in access to the substantial benefits of employment, on grounds of religion. The argument from autonomy and dignity, used above to justify protecting religion, requires that religion or belief should not determine access to benefits or cause differences in life chances. It is therefore important to ensure that access to the not inconsiderable benefits of work is as equal as possible in religious terms. To argue that religious interests are protected by the right to resign would therefore be to ignore the inequalities of protection this provides. The link between religion and inequality is particularly stark where religious groups have suffered systematic disadvantage in the past. For these groups, in addition to the general matter of equal treatment, access to work may represent the best way to avoid further social exclusion and economic disadvantage. Moreover, there is significant potential for religious inequality to intersect with other forms of inequality such as gender or race inequality. This can result in multiple discrimination for minority ethnic women from minority religious groups. Full equality therefore requires that access to employment should be open to all and should not be dependent on religious affiliation. The various arguments from equality suggest that it will not be possible to contend that the right to resign will provide sufficient guarantees for freedom of religion. The fact that some religious groups will need to exercise the option to resign more often than others means that the parallel right to equality is infringed, and leads to the conclusion that religious interests should be provided with some level of protection within the workplace. Of course, the right to equality on grounds of religion is not absolute, and at times protection or accommodation may not be feasible. Yet the fundamental principle of equality demands that protection or accommodation be attempted,

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rather than leaving religious interests to be protected by the freedom to resign or withdraw from the workplace.

Contracting Out Even if one rejects the reality of the employee’s freedom to resign in practice, it might still be argued that it is acceptable to restrict religious interests at work because those who accept employment have already accepted certain restrictions on their autonomy by coming to work. After all, employers will control how employees spend their time, where they go and what they say, with a consequent reduction in individual autonomy, for the duration of the working day. Thus it is arguable that the notion of autonomy cannot be used to argue for protection for religious interests at work: if so much individual autonomy has been given up on entering work, it is not clear why autonomy should demand protection of religious practice. However, this argument misinterprets what is demanded by a respect for autonomy, as the term was used above to argue in favour of granting some level of protection for religious interests. The underlying autonomy and dignity of human beings demands a core level of respect for the person, which may include respect for their religious interests. This core respect is not undermined by a person doing as he is bid and complying with his employer’s instructions in order to fulfil the needs of the business, even though the individual is not a totally free agent when doing so. However, one cannot rely on the restriction on freedom inherent in being at work, rather than at leisure, to deny any protection at all for religious interests at work. The reduction in autonomy that accompanies an agreement to accept an employer’s instructions does not entail a consequent reduction in the extent to which an individual’s core human dignity and autonomy should be respected at work.111 It is thus not the case that entering the workplace involves an implicit acceptance that personal dignity and autonomy are limited within that workplace.

Stepping Out of the Employment Relationship One additional way to reconcile the competing interests at stake in cases where religious interests clash with other interests is to protect religious individuals, but not within the traditional employment relationship. For example, a religious group that wished to employ only men would usually be subject to a claim from a female applicant who was refused employment. This would lead to a conflict between the right of the religious group to employ only men, and the right of the woman to be given access to employment. This conflict of rights could be

111 In fact, it has been suggested by Collins that much of the legal protection for employees at work can be understood to be based on the need to protect the dignity and autonomy of employees in the workplace. H Collins, Justice in Dismissal (Oxford, Clarendon Press, 1992)16.

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resolved by accommodating the needs of the religious employer and allowing the discriminatory employment policy; or by refusing to accommodate and granting the woman a remedy against the employer. An alternative might be to allow the religious group to opt out of the employment or work relationship altogether. That way it would not be subject to the non-discrimination rules that apply to the relationship. The difficulty here is that there may be significant consequences for other areas of employment law of widening the range of work relationships that are not subject to the protection of discrimination and employment law.112 The definition of the term ‘employee’ for the purposes of the ascription of employment rights is developing very fast,113 and the Equality Act 2010 already extends to cover workers who are not part of the traditional employment relationship. As courts determine the types of contractual arrangement to which employment or worker status should be afforded, so employers seem to draft contracts in order to avoid the creation of such a status in their workers.114 To create a new subgroup of workers to whom usual workplace rights do not apply could be a dangerous option. Any alternative non-employment status could be exploited by other employers to deny protection to vulnerable workers. It is thus better to seek the correct level of protection for religious interests within the employment relationship, rather than to achieve the same end by excluding religious organisations from the relationship altogether.

And Yet … The Residual Protection of the ‘Right to Resign’ There are many good reasons to protect religion at work within the employment relationship. The reasons are based on the importance of religion, the importance of work and the equality interest in distributing the benefits of employment without discrimination on religious grounds. They also reflect the failure to respect core dignity if workers are allowed to contract out of protection. Yet, despite all these reasons to protect religious interests at work, in the final analysis the right to resign does provide the ultimate protection: if the employee finds it impossible to reconcile religious practices or beliefs with her work-based obligations, she is free to leave.

112 See discussion of the relationship between discrimination law and employment law in this regard in C McCrudden, ‘Two Views of Subordination: The Personal Scope of Employment Discrimination Law in Jivraj v Hashwani’ (2012) 41 ILJ 30; and M Freedland and N Kountouris, ‘Employment Equality and Personal Work Relations—A Critique of Jivraj v Hashwani’ (2012) 41 ILJ 56. See also discussion in Ch 5 at pp 162–3. 113 For full discussion of the development of the law on the definition of employment, and the implications of the changes, see M Freedland, The Personal Employment Contract (Oxford, OUP, 2003); and M Freedland and N Kountouris, The Legal Construction of Personal Work Relations (Oxford, OUP, 2011). 114 See A Bogg, ‘Sham self-employment in the Court of Appeal’ (2010) 126 LQR 166; A C L Davies, ‘Sensible Thinking About Sham Transactions’ (2009) 38 Industrial Law Journal 318; see also discussion in Ch 5 at p 163.

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Important though religion and belief interests might be, they do not give rise to an unfettered right to act accordingly.115 The fact that religious freedom can, in the final analysis, be protected through a freedom to resign pervades any assessment of how to resolve any conflict of rights that arises in the context of the workplace. Any assessment of the level of protection that should be afforded to religious interests must be carried out in the light of this residual protection. However, the arguments above regarding the importance of work and the importance of religion mean that resignation should remain the residual protection where accommodation of the religious interest is inappropriate, rather than the starting point for the provision of protection.116

Conclusion Religious belief has crucial significance for individual identity, linked as it is with beliefs about our nature and place in the universe. Given the gravity of the issues involved in the lives of adherents, they should not have to relinquish their practices too lightly. However, important as they are, religious interests are not absolute. It is accepted that in some circumstances limitations may need to be placed on religious practice, and that at times the rights of others will prevail over religious interests. However, the non-absolute nature of the rights as exercised in work cuts both ways. The rights with which religious interests may collide, if they are rights being exercised at work, are equally subject to the residual protection of resignation. If a worker is unhappy with the accommodation offered to a religious employee, she also enjoys the freedom to resign. Moreover, it is well established that there is no clear right to work in a particular job.117 In effect, the right to resign ensures that neither religious rights nor the other rights enjoy automatic precedence. The importance of employment as a benefit to which all should have equal access means that respect for religious interests should be provided in the work context, along with respect for other rights. The importance of the benefits offered by working suggest that to deny the opportunity to some to take up those benefits because of their religious beliefs would be to significantly diminish their dignity.118 115 ‘No system could countenance the right of anyone to believe anything and to be able to act accordingly.’ M Evans, ‘Religious Liberty and Non-Discrimination’ in M L P Loenen, and P Rodrigues (eds), Non Discrimination Law, Comparative Perspectives (The Hague, Matinus Nijhoff, Kluwer, 1999) 131. 116 See Eweida and others v the United Kingdom App nos 48420/10, 59842/10, 51671/10 and 36516/10 (Judgment, 15 January 2013). 117 The European Charter of Fundamental Rights, Art 15 provides that everyone has a right to engage in work and to pursue a freely chosen or accepted occupation. However, this does not extend to providing a right to a particular job. See further, V Mantouvalou (ed), The Right to Work (Oxford, Hart Publishing, 2015). 118 D Réaume, ‘Discrimination and Dignity’ (2003) 63 Louisiana LR 645, 688.

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It is not argued here that religious interests should take priority, merely that they should not be ignored. They should take their place alongside other interests as worthy of some protection at work. Where the protection of religion gives rise to conflict with other interests, the additional and complex question arises of how much protection should be granted, and how the conflicting interests should be reconciled. As suggested at the start of the chapter, the method generally used for reconciling competing legal rights is to engage in a balancing exercise, in order to determine whether it is proportionate to uphold religious interests over other interests, or vice versa. What follows is an examination of the various interests and issues that need to be considered in order for the proportionality of any legal response to be assessed.

IV. The Proportionality Equation: Religion and the Workplace The case has been made above for providing a measure of protection for religious interests at work. However, it has also been recognised that religious interests can conflict with other interests within the workplace, such as the economic freedom of the employer, and the equality and other interests of fellow employees. If both sets of interests are to be given adequate protection, then a fair balance needs to be struck between them. In some cases, the competing rights will be irreconcilable, and all that can be hoped for is for the competing interests to be held in some sort of equilibrium. The most common method of finding an equilibrium as between different interests is to restrict interests only as far as it is proportionate to do so, in the light of the other competing interests. Proportionality is a mathematical term, which implies that the correct balance can be calculated with a degree of precision. But when using it in the legal context, one is measuring incommensurable interests, and mathematical precision is impossible. Although the use of proportionality aims to introduce an element of objectivity into the analysis, it is inevitable that value judgements will be made as to the relative importance of the different interests.119 Nonetheless, in the absence of a better analogy, the concepts of balance and proportionality are used by courts to determine conflicting interests. They enable a structured

119 For a discussion of the theoretical difficulties inherent in any balancing exercise of this type, see L Vickers, Freedom of Speech and Employment (Oxford, OUP, 2002) Ch 2, and discussion at pp 277–281. See also J Rivers, ‘Proportionality and Variable Intensity of Review’ (2006) 65(1) CLJ 174, who argues (at p 201) that the values are not truly incommensurable: ‘few would view with indifference a massive loss of liberty for a marginal gain in national security’. He argues instead that the difficulty is that the balancing of rights can only be carried out in a crude manner. Further support for the use of proportionality as a method for resolving conflicts between rights can be found in D Beatty, The Ultimate Rule of Law (Oxford, OUP, 2004).

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approach to be taken to balancing fundamental rights against each other, and will be adopted here. In assessing whether it is proportionate to protect religious interests, one assesses whether the accommodation required serves a legitimate aim, and whether there is a proportionate relationship between the means used and the aim one is trying realise, given the existence of competing interests.120 This involves considering whether the aim can be realised using alternative means which impinge less on other interests. The strength of the argument in favour of protection of religious interests at work demonstrates that their protection serves a legitimate aim. Whether or not accommodation should be required in any particular case will thus depend on whether it is proportionate to do so, bearing in mind the relative strength of the competing interests in question, and whether the aim can be realised in a way that reduces the adverse impact on those other interests. The determination of proportionality will depend on the assessment of a complex range of factors. It is not proposed to establish with precision here what the outcome will be in any given case. Instead, a range of the factors that should influence the determination of whether it is proportionate to accommodate religious interests at work will be considered, on the basis that the more detailed the consideration given to the question, and the more complete the range of factors considered, the more objective the determination of the question can be. Given the incommensurable nature of the interests being considered, precision and pure objectivity are not achievable, but a reflective and detailed consideration of relevant factors may lead to outcomes which can be more readily justified to those on either side of any conflict. The first issue in the proportionality equation is to assess the relative strength of the competing interests. The strength of the interest in protecting religious interests within the workplace was discussed earlier in the chapter. The second issue is to consider the range of interests with which such interests may compete in the workplace, such as employers’ financial interests and the equality interests of other employees. These interests, considered below, will interact with each other, and may act singly or cumulatively to suggest that protection should be limited. Finally, a range of additional contextual factors will be considered which may have an effect on the determination of whether it is proportionate to require protection. Issues in this category include the type of employer, as well as background issues such as whether the workplace is viewed as a public or a private space.

120 See D Schiek, ‘Proportionality in Age Discrimination Cases—a Model Suitable for Socially Embedded Rights’ in A Numhauser-Henning and M Roennmar (eds), Age Discrimination and Labour Law: Comparative and Conceptual Perspectives in the EU and beyond (Alphen aan den Rijn, Kluwer Law International, 2015) for a discussion of how proportionality analysis may vary depending on the type of competing interests at stake, such as where some interests are based on human rights and some on economic requirements of the employer.

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Competing Rights In what follows, a range of rights is considered, all of which may compete with the right to freedom of religion and belief, and with the right not to be discriminated against on grounds of religion and belief. It is not proposed to provide a full discussion of the relative strength of each of these interests here. Instead, the various interests are identified in order to acknowledge their scope and the ways in which they can interact with religion and belief in the context of the workplace.

The Equality Rights of Others The most obvious interests with which religion is likely to compete are the equality rights of others. For example, an employee who has religious objections to working on an equal basis with women would need to be able to show that his religious interests outweighed the interests of gender equality if he is to succeed in having his religious views protected. Similarly, a religious employer who was unhappy about employing a gay man would need to show that his religious interests should prevail against the equality interests involved. Given that the basis for protecting religious interests in employment is the need to protect human autonomy and dignity in the practically important sphere of the workplace, it is unlikely that religious interests will often prevail over other equality interests, similarly based on dignity and autonomy. The interests in equality on grounds of gender and race are generally recognised to be the most powerful equality interests, and are granted greater legal protection than other grounds.121 Some122 have justified this on the ground that biological differences and ascriptive differences (sex, age, ethnicity) should be granted greater protection. Others123 point to differences in the socio-political context in which the discrimination occurs, and the differing levels of historical disadvantage, and of social exclusion. These factors suggest that, as a general rule, race and gender equality interests will take precedence over competing religious interests, and such a position would reflect the current legal and political compact. However, the strength of the case for protecting religious interests, together with the fact that the interests are not being protected at large but in the more restricted context of the workplace, means that there may be times when religious interests should be accommodated, even when to do so involves infringing some other equality right. For example, an interest in religious freedom may allow for the employment of men in particular roles (such as priests), despite the fact that 121 M Bell and L Waddington, ‘Reflecting on inequalities in European equality law’ (2003) 28 EL Rev 349; M Bell and L Waddingon, ‘More Equal Than Others: Distinguishing European Equality Directives’ (2001) 38 CML Rev 587. 122 eg, D Schiek, ‘A New Framework on Equal Treatment of Persons in EC Law’ (2002) 8 European LJ 290. 123 eg, C McCrudden ‘Thinking about the discrimination directives’ (2005) 1 European AntiDiscrimination Law Review 17.

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this discriminates against women. In effect, it may be the case that in some circumstances the factors discussed below combine in such a way that it is proportionate to accommodate religion and belief, even though to do so involves giving precedence to religious over other equality interests.

The Negative Aspect of Freedom of Religion and the Protection of Religious Interests As noted above, tension exists in the protection of religious interests as a result of the extension of the protection to many forms of religion and belief. Those who have a particular religious belief are protected equally with those who have either a different belief or none. The double-sided nature of the protection, protecting belief and absence of belief, creates an inherent conflict. For example, to give full protection to the rights of believers to practise their religion in public places entails an infringement of the rights of non-believers to enjoy those same public places free from the influence of religion. Similarly, providing an accommodation for religion within the workplace will involve infringing the interests of those who prefer the workplace to remain religiously neutral. In assessing whether it is proportionate to protect religious interests in any situation, then, it will be necessary to consider in the balance both the interests of the religious group or individual, and the interests of those who wish to remain free from the influence of religion.

Rights to Private Life, Freedom of Speech and Freedom of Association The argument was made above that the workplace is a sufficiently important part of life for religious interests to be protected there. If this is true for religious interests, then the same must be true for other fundamental human rights such as rights to private life, freedom of speech and freedom of association.124 At times, the employee may enjoy a right to private life, which will need to be balanced against an employer’s need to know information regarding religious affiliation. For example, where a religious employer has a genuine occupational requirement that an employee be of a particular religion, the invasion of privacy entailed in establishing that the employee complies with the requirement is likely to be proportionate. If there is no genuine occupational requirement to be of the religion, the invasion of privacy may be viewed as disproportionate, depending on other circumstances. Clashes between religious interests and freedom of speech may also occur, particularly with regard to the protection against religious harassment at work. The freedom to debate religious doctrine may need to be balanced against the need to protect the dignity of religious workers. Again, the proportionality of any restriction will need to be considered in the light of many other factors, such as whether the harassing speech was directed at the victim.125 124 125

Protected under Arts 8, 10 and 11 ECHR respectively. See further discussion below at pp 186–191.

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Freedom of association is another right with which religious interests interact. The interest in being free from religious discrimination may come into conflict with the rights to freedom of association of groups who need to engage employees to serve the group’s needs. For example, to require that a group must employ someone who disagrees with their beliefs, in order to avoid infringing discrimination rules may, arguably, interfere with the right to freedom of association of the group. However, such interference may be proportionate if it is viewed as necessary to uphold the equality interests of those involved. In each case, the interaction of the competing interests must be taken into account in assessing the proportionality of any suggested protection of religious interests. Moreover, as with religious interests, the interests in private life, freedom of expression and freedom of association are not absolute rights, and the proportionality equation will need to be assessed in the light of the freedom to resign, which remains the residual protection for all fundamental rights in the context of the workplace.

Economic Efficiency The employer will have a number of interests to be taken into account when assessing the proportionality of any protection of religious interests, including the interest in the good management and efficient running of the enterprise. Good management and efficiency enables the employer to maximise profits, as well as serving the more general public interest. A strong economy and good levels of employment are dependent on the existence of profitable businesses, which rely on a certain level of employer freedom to manage the business free from too many external constraints.126 It will no doubt be the case that that protecting religious interests at work will involve the employer in financial costs in some cases. For example, allowing staff time off for religious observance increases the length of time that those staff are economically inactive. Even if time off is awarded without pay, this may still reduce the capacity for employers to use plant to maximum efficiency or generate profit at the same rate as they are able to where no time is awarded for such activity. Economic loss for the employer can also have an adverse effect on other workers, especially if it is at such a level as to risk the viability of the business. Other forms of accommodation may also be unrealistic given the need to respect the rights of other employees at work. For example, a religious employee who needed to work in a single sex environment may not be able to be accommodated without significant interference with the interests of other workers. The need for employers to be able to run viable businesses is clearly a factor to be considered when assessing the proportionality of any protection for religious 126 For more on where the balance between employee protection and employer freedom should lie, see R Epstein, ‘In defense of the contract at will’ (1984) 51 U of Chicago LR 947; and R Epstein, Equal Opportunity or More Opportunity? The good thing about discrimination (London, Civitas, 2002) and the reply by S Deakin in the same volume.

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interests. It is arguable that protecting the autonomy and dignity of staff at work will lead staff to feel more valued, leading to the recruitment of better staff, higher motivation and ultimately higher profits. However, this may not always be the case, and it is inevitable that at times protection of religious interests will lead the employer to incur costs, for example because of the need to employ extra staff to cover religious leave, or because of a loss of custom if religious interests are accommodated.127 Where the profitability of an enterprise would be reduced if religious interests were to be protected, this may tilt any balance against the protection. However, as with many of the work-based interests, the employer’s interest in enjoying the fruits of the business is clearly not an absolute interest. A large number of employment rights in the UK restrict the right of the employer to put profit before the rights of others, such as restrictions on working time,128 unfair dismissal,129 and the need to safeguard health and safety.130 Of course, not all employers aim to make a profit. The public sector does not operate with a primary brief to make a profit. Instead, its primary purpose is the delivery of the various services it provides, although financial efficiency may be required of it in order to achieve this. As well as the public sector, there exists a large sector of not-for-profit organisations, whose aim may not be to improve economic efficiency but to provide a service, but which are nonetheless required to use the employment relationship to regulate the relationship between the organisation and those who work for it. For example, a religious group that has as its aim the propagation of a religious message may need to utilise the employment relationship to regulate its relationship between workers and the organisation. The economic interests of such organisations are unlikely to be as significant in the analysis of the proportionality of any restriction on religion as the economic interests of for-profit organisations. Although not an absolute interest, then, the need for an employer to run an economically viable business is a clear interest that needs to be taken into account in assessing the proportionality of any protection of religious interests.

Employer Autonomy and Reputation An additional factor to take into account in assessing proportionality is that the employer, as well as the employee, may be entitled to some respect for autonomy. Both the European and US legal systems recognise that companies as well as individuals can enjoy the right to freedom of expression.131 In some cases, protection of employees’ religious interests could clash with the right of the employer

127 For example, an employer could argue that customers may prefer not to be served by staff wearing religious dress. 128 Working Time Regulations 1998 (as amended). 129 Employment Rights Act 1996, s 98. 130 Health and Safety at Work etc Act 1974. 131 First National Bank of Boston v Bellotti 435 US 765 (1978).

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to portray the image to the public that it would wish. One example might be an employer that wishes to project a secular image, and thus may not wish its employees to attend work in religious dress. Another example of employer autonomy can be seen in the case of Ladele v Islington Borough Council,132 where the employer, Islington Council, had a policy of being ‘wholly committed to the promotion of equal opportunities and to requiring all its employees to act in a way which does not discriminate against others’. This policy outweighed Miss Ladele’s religious freedom interest when it came to determining whether she could refuse, on religious grounds, to register civil partnerships and remain employed.133 However, the need to uphold employer autonomy will not always prevail over religious interests of staff. Corporations that act as employers will not find fulfilment through self-expression, as a human right. If there are no other factors at stake, the human interest in upholding autonomy and dignity should prevail over the rights of a corporation. However, where other interests are also of relevance, such as economic interests, then the balance may be more finely graded. Religious employers will also have autonomy and reputation interests. It was argued above that the individual right to religious freedom involves a degree of protection for collective religious rights.134 The right of a religious group to enjoy a level of autonomy is reflected in the protection for freedom of religion, which extends to a right to manifest religion alone or in community with others.135 This means that religious groups should enjoy some of the protection afforded to individual religious interests. Respect for group autonomy should mean that religious groups are enabled to enter employment relationships, in order better to organise or facilitate religious activity. In some cases, religious groups may want to appoint someone to act as a teacher, or as a full-time religious official. In other cases, the religious group may want to appoint other staff, for example catering or administrative staff, to improve the group’s ability to fulfil its manifestation or practice of religion. For example, a church which spreads its message to young people by running a youth group may wish to employ a group leader. If there are a large number of groups, it may need a leader’s co-ordinator, and, of course, work with young people may be only part of the outreach work the group engages in. It is not difficult to see how a large organisation will generate its own bureaucracy and administrative systems, which will need staffing. In other cases, religious individuals may wish to work with others of the same religious persuasion, grouping together to supply goods and services without any specific religious link. For example, a group of Christians may wish to run a café, or a group of Muslims may wish to open a book shop. In these cases, the employment

132 Ladele v Islington Borough Council [2009] EWCA Civ 1357 (Court of Appeal); then heard with Eweida and Others v the United Kingdom, [2013] ECHR 37. 133 See discussion below at pp 208–9. 134 See discussion at p 51 above. 135 Art 9 ECHR.

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is not the result of the need for support for religious activity but is a secular activity, carried out by a religious group. In these cases, the link with freedom of religion is less direct, although it is still present. In some cases the activity may reflect a personal preference by the employer to work with co-religionists. In others, the view of the employer may be that the activity can be the forum for some type of religious outreach, in that it may provide opportunities for proselytism. In each case, the activity is motivated by religion, and although not directly involved in the manifestation of belief, it is the result of the outworking of religious commitment. Full respect for autonomy involves the recognition that religious groups have an interest in being able to act as employers, as part of the respect due to group autonomy and dignity. As with the other interests discussed here, this is not absolute, and needs to be weighed against other interests. In assessing the extent of the religious employers’ interest in autonomy, the extent of the link between the activity engaged in and the manifestation of religion is important. Where a group acts as the employer of a religious person who officiates at religious ceremonies, the employee is playing a key role in the group’s manifestation of religion and the autonomy of the religious group should be accorded great weight when set against other interests.136 Where the activity is only motivated by religion, rather than being an outworking of religious practice, then the weight accorded to the employer’s autonomy may be reduced.

An Interest in Being in Work There is no legally enforceable right to work,137 but the importance of work to the individual, for both financial and non-financial reasons, was highlighted above. The argument was made that individuals gain such significant benefits from work that they should not be unreasonably denied the opportunity to participate in the workplace on grounds of religion. Thus the case was made for accommodating religious interests within the workplace. The interest in having a job is clearly not absolute. However, it can provide a significant component of individual autonomy. If an individual is excluded from employment because his religion cannot be accommodated, this will be a relevant factor to take into account when assessing where the balance should lie between clashing interests. The extent of exclusion from work can vary: because of religion, a person may be denied access to a particular job which she would like; she may be denied access to a particular profession; or she may be denied access to the workforce altogether. Clearly total exclusion will be more serious, and more difficult to justify, than exclusion merely from the particular job for which the religious person applied. 136 See, eg, Hasan and Chaush v Bulgaria (2002) 34 EHRR 55, para 62; and Serif v Greece (2001) 31 EHRR 20. 137 B Hepple, ‘A Right to Work?’ (1981) 10 ILJ 65; V Mantouvalou (ed), The Right to Work (Oxford, Hart Publishing, 2015), in particular the chapters by H Collins, ‘Is there a Human Right to Work?’ and A Bogg, ‘Only Fools and Horses: Some Sceptical Reflections on the Right to Work’.

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If a religious person is unable to take up a job because she cannot meet its requirements, but remains free to take other jobs, there will only be a minor infringement of her interests, as she remains free to take up other work. For example, a Christian might be unwilling to work for a shop that requires its staff to work on Sundays. The individual remains free to work for other shops, or in another occupation, and so her interest in working is not significantly reduced. Similarly, a refusal to allow staff in a café in a large town to wear headscarves would limit the choice of job for a Muslim woman who wears a headscarf and wishes to work at that café. However, she may still be able to work in a different café. Thus her job opportunities are diminished, but only marginally so.138 Of course, accommodation of particular days of work, or the wearing of headscarves, may be very simple for the employer. In such a case it may still be proportionate to require accommodation because of the ease with which the employer can achieve this, set against the infringement of freedom of the employee of any denial. If the employer is a small employer, with no possibility of rearranging shifts, or if there are strong reasons for imposing the uniform rule, then it may not be proportionate to require accommodation: the economic or other interests of the employer may then outweigh the interests of the employee. In contrast, if all shop workers are expected to work on Sundays, then the Christian who wants to work in the retail sector may find it hard to work in the particular area of work she wishes. This is a more serious infringement of her interest in having a job, as she is excluded from a particular sector of employment. Similarly, if a large employer such as the NHS were to ban the wearing of headscarves, this would severely limit the freedom to choose a career in or allied to medicine for many Muslim women. The interests served by such a restriction would need to be very strong if they were to counteract the interests of Muslim women in being able to choose a career as a health professional. In some cases, a religious requirement may be very difficult to accommodate, because it may in turn involve the employer in infringing others’ rights. For example, an employee might refuse to work with, or be managed by, women on religious grounds. It is likely to be proportionate for a secular employer to refuse to accommodate such an employee. The equality rights of women in the same employment would be infringed by acceding to any such request, and these interests in dignity and respect would outweigh the rights of the individual religious employee. However, accommodating such an employee might not always be disproportionate, especially if the employer shares the religious view. Allowing a religious employer to accommodate such a request would infringe the rights of others and would amount to indirect discrimination against women.139 However, depending 138 See the reasoning used in Muhammad v The Leprosy Mission International, ET 2303459/0989, 16 December 2009, discussed below at pp 176–177. 139 The employer may not refuse to employ women, but a workplace where such requests are accommodated is likely to be a difficult place for women to work, and so they will be at a disadvantage in comparison to men.

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on the circumstances, it is possible for this to be justified as proportionate. One factor to consider is whether the religious employee can be employed elsewhere in the absence of the accommodation. In practice, most employers would not accommodate such a request, and so if a person cannot be employed even by a co-religionist, he may find it difficult to be employed at all. This amounts to a significant infringement of his interests because of the importance of work to individual dignity and autonomy. If the effect of a failure to accommodate is that an employee becomes virtually unemployable, then any countervailing interests will need to be strong if they are to outweigh the effective denial to the employee of a chance to work at all. Of course, the interest in working applies to both the religious employee and the female employee who will thereby be disadvantaged. If the employer is of a size or a nature that means that the woman is denied access to employment, or to a particular type of employment, then accommodation of the religious requirement is unlikely to be proportionate. For example, if a major local employer had a religious ethos, which accepted that men might wish to work separately from women, the resulting gender discrimination would be unlikely to be proportionate because it would reduce the chances of women to work in the area. If, however, the employer were a small employer, and plenty of other job opportunities were available to women, such a practice could possibly be proportionate, depending on the interaction of the other factors relevant to the proportionality equation, particularly if it were necessary to enable members of the religious minority to work at all. This is not because of the size of the employer per se, but because of the effect of any denial of employment on the individual’s general employment prospects. For example, it might be proportionate for a religious group that does not believe that women should undertake paid employment to employ only men in the running of their organisation. Such a practice would preserve the religious autonomy of the organisation and provide employment for some men who might find it difficult to work elsewhere, and it would have a minimal impact on the general employment prospects of women.

The Right to be Free from Offence One further competing right that should be considered when assessing the proportionality of protecting religion at work is the right to be free from offence.140 The concept of dignity, with which autonomy and equality are so closely related, is infringed where an individual is subjected to offence or abuse. To insult or offend another on the basis of their religion or belief, gender, race, disability, sexual orientation or any other personal characteristic is to devalue the other person and treat them as of less worth. A practice cannot be said to be harmless if it involves a reduction in the dignity accorded to an individual. Even if there is 140 See, generally, J Feinberg, Offence to Others (Oxford, OUP, 1985), looking at offence in the context of criminal law prohibitions on causing offence.

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no direct victim, the tolerance of such behaviour can be said to be harmful as it implies a lack of respect for individual dignity. The importance of the interest in not being offended is recognised in the inclusion of anti-harassment measures in the equality legislation: harassment on grounds of religion or belief, gender, sexual orientation, disability, age and race are all prohibited on the basis that such behaviour infringes individual dignity. However, it may be that the wrong of causing offence is one that has to be tolerated, at least to some extent, if we are to provide sufficient space to all to follow their conception of the good. Clearly, requiring an individual to tolerate being offended will only be acceptable when it is proportionate. Thus, in assessing whether it is acceptable to allow an individual to cause offence, the range of factors discussed above will also need to be assessed. The aim of this section is to assess the weight that should be given to the right not to be offended so that it can be properly taken into account in assessing the proportionality of any proposed exception to the general non-discrimination principle. Offence may not only be caused by the presence of exceptions to the non-discrimination principle, but can also be caused in a variety of other ways that are of relevance here. Offence can be caused by harassment, behaviour that has the purpose or effect of violating dignity, or causing a hostile environment. In relation to the conflict between religion and other rights, harassment could occur if a religious worker were to cause offence to a co-worker by persistently telling her that her actions were sinful. Alternatively, allowing a male worker to refuse to work with women could create a hostile environment and cause offence to female workers. Where such behaviour is concerned, the interest in protecting the victim, based on her interest in maintaining dignity, is clear. The ‘offender’ may have some religious interests which are harmed by any restriction on his freedom of action, as the harassing behaviour may also entail the exercise of religious freedom. However, any such harm to the harasser’s religious interests is likely to be proportionate given the legitimate aim of protecting the dignity interests of the ‘victim’. Religious individuals may have a right to hold their beliefs, but they do not have a right to impose those views on others at work, not least because any ‘victim’ will find it difficult to avoid the offending behaviour, and the harasser does not have an absolute right to be in the workplace. If an employer allows an employee to treat another in a way that undermines her dignity, then the employer will have failed to provide adequate protection for the autonomy and dignity of its workers. However, offence is not limited to that caused by direct harassment by an individual; it may be caused in other ways, and in some circumstances the interest in being free from offence may not be so strong. It may then be that the religious interests of the ‘offender’ can prevail over the interest of the victim in being free from offence. For example, if a religious employer is allowed to maintain an employment practice of only employing co-religionists (through use of a genuine occupational requirement), this could cause offence to those who are thereby refused a job, but it would be proportionate because of the religious interests of the group.

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This becomes more problematic if individuals are denied the status of coreligionists because of their race, gender, sexuality or other protected characteristics. Thus, a religious group that is intolerant of homosexuality could recruit only those of the same religion, and it could be legal for such a requirement to be introduced, for example because there is a genuine occupational requirement that the employee be of the particular religion. In such a case there may be no direct ‘victim’ to be offended: it is unlikely that a gay person will apply, because he is unlikely to belong to the requisite religious group. However, the denial of work to gay applicants could still cause offence in a more general sense: the dignity of gay and lesbian people is undermined by the tolerance of such behaviour within the legal system, through the acceptance of genuine occupational requirement exceptions, in such circumstances. The question then arises of whether the fact that such practices may be tolerated infringes dignity to such an extent that a genuine occupational requirement will be disproportionate in the circumstances. It is suggested below that although the harm should be recognised, it should not be accorded overriding weight in assessing proportionality. It may be that allowing such indirect harm to dignity is a price that has to be paid to enable groups with conflicting beliefs to live and work together. The work of Feinberg in Offence to Others141 may aid the analysis here. Feinberg considers a number of factors when assessing the level of harm involved in causing offence, including the seriousness of the offence balanced against the reasonableness of the offending conduct. Applied in the context of the workplace, rather than in the context of the criminal law, they suggest that the offence caused by the ‘bare knowledge’ of the existence of work practices which one finds offensive should not give grounds, of itself, to prohibit those practices. This is not to say that such practices should be allowed where other interests are harmed, merely that where the only harm is one of ‘bare knowledge’ it may not provide sufficient harm to justify prohibiting a practice. In considering the seriousness of offence caused, Feinberg considers its magnitude in terms of its intensity, duration and extent. He also looks at questions such as whether it is possible to avoid the offence, or whether the victim has consented to be subject to it. In the work context these are difficult questions. Technically the employee who is a victim of more than single incidents of harassment may be able to resign,142 but this freedom carries significant cost, and is not a very realistic option.143 In the context of workplace harassment which is directed at a specific victim, the idea that a person consents to the harassment and is always free to leave 141

J Feinberg, Offence to Others (Oxford, OUP, 1985). See discussion at p 186 ff. 143 On the debate surrounding the freedom to resign in the context of harassment, see E Volokh, ‘Freedom of Speech and Workplace Harassment’ (1992) 39 UCLA LR 1791; D Epstein, ‘Can a “Dumb Ass Woman” Achieve Equality in the Workplace? Running the Gauntlet of Hostile Work Environment Harassing Speech’ (1996) 84 Georgetown LJ 339; and L Vickers, ‘Is All Harassment Equal? The Case of Religious Harassment’ (2006) 65(3) CLJ 579. 142

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will not carry much weight in assessing the seriousness of the offence. However, this may not be the case in the context of ‘bare knowledge’ offence. For example, a religious employer could require that staff be of the same religion, and the religion may teach that the employment of married women is wrong. In effect, requiring staff to share the religious view will mean that the employer will not employ married women. This impinges on the dignity of all married women, whether religious or not. However, the ‘offence’ is not directed at any particular woman, and those of the offended group are not forced to confront the offending behaviour. Thus, offence may exist, but it is less serious than that caused by direct harassment at work. Balanced against the seriousness of the offence caused is the ‘reasonableness’ of the conduct which causes offence. Here Feinberg considers a number of issues:144 the importance of the offending conduct to the actor; the social value of the behaviour; the value of freedom of expression; the presence of alternative opportunities for the conduct that might cause less offence to others; whether the conduct is motivated by malice or spite; and whether the conduct is to be expected in the locality. Using the example of offence caused by bare knowledge that a religious employer’s requirement that staff share the religion results in a failure to offer work to married women, these factors combine to suggest that offence caused should not, of itself, weigh particularly strongly in any assessment of proportionality, albeit that other factors may influence that assessment. If the offending behaviour is the result of religious belief then it will be viewed as being of great importance to the actor, and the fact that religious freedom is protected within human rights law suggests that it is accorded social value: both of these factors weigh in favour of allowing the offending behaviour. The fact that the conduct is not directed at any individual and is not inspired by personal malice or spite similarly militates against the suggestion that the offence caused makes the practice a disproportionate interference with any interests others may have in not being offended. In these circumstances, the balance between the seriousness of offence and the ‘reasonableness’ (in Feinberg’s terms) of the offending behaviour is likely to come down in favour of allowing the offending behaviour to continue. This is because the behaviour is not directed at any particular person, relates only to ‘bare knowledge’ and can be avoided; and yet the behaviour is of great importance to the individual as an outworking of religious belief. Of course, there may be other factors which tip the balance against allowing the employment practice, for example, if married women are thereby significantly disadvantaged in the workplace because the employer is a major employer in the area. The final factor suggested by Feinberg (whether the offensive behaviour can be expected and then avoided) is of more relevance in cases where an employee works for a religious employer and takes offence at some of the work practices. For example, a non-religious employee may find it offensive to be invited to pray by 144

J Feinberg, Offence to Others (Oxford, OUP, 1985) 44.

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colleagues, or may find overtly religious conversations offensive. Here the conduct in question may be expected given the type of employer. If the employee has chosen to work for a religious employer, he or she cannot complain of offence when the employer acts in a religious manner.145 The offending behaviour meets the standards of reasonableness set by Feinberg, suggesting that the balance should be struck in favour of allowing the behaviour to continue, even though the bare knowledge of the behaviour may cause offence to some. Again, if the employer is a major employer in the sector or in the area, then it is arguable that the employee has not really chosen freely to work in such an environment, and the religious practice may then be disproportionate overall. Although it involves tolerating some level of offensive behaviour, such a compromise is essential if groups who disagree fundamentally on many issues are to co-exist in a plural democracy. It may well be that accommodating an employee who believes in women’s inequality implicitly infringes the dignity of women. But it may correspondingly be argued by a religious employer that a refusal to allow accommodation of such views infringes the autonomy of the religious group, as it effectively prevents it from acting as an employer. Religiously motivated people should have the freedom to employ others, in order to fully exercise their freedom of religion, and their autonomy. It may therefore be proportionate to tolerate their employment policies, where there are no direct victims, even though their very existence may be offensive to some. For example, a religious group that is opposed to the employment of women could have a genuine occupational requirement to employ a co-religionist as a religious teacher. Women who share the faith will not want to undertake this work, and so there are no direct victims of the indirect discrimination involved. In contrast, where there are victims, for example the employer is a large or monopoly employer and so the restriction on co-religionists has an impact on women’s employment prospects, the level of offence caused may be one of the factors to take into account in assessing proportionality, albeit not necessarily the paramount interest.146 The overall effect of this position is that only small religious employers are likely to be able to restrict employment to coreligionists, but this is not because of anything inherent in being a small employer: it is merely because of the range of factors considered in the proportionality equation, such as the impact of any restriction on the employment prospects of those outside the religious group. Such an approach would not create a licence to private employers simply to refuse to appoint people on religious grounds, as the right to be free from offence is only one factor in the proportionality equation. However, to return to the question of the weight to be afforded to the right not to be offended, it is suggested that

145 Although this may also be subject to proportionality. For example, if it was not clear that religious activity would be expected at work at the start of the employment, it may not be acceptable to impose such a requirement on non-religious staff. 146 See also L Cariolou, ‘The right not to be offended by members of the British National Party’ (2006) 35(4) ILJ 415.

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‘bare knowledge’ offence, caused by allowing genuine occupational requirements which may indirectly discriminate on other grounds, should not be given undue weight in the proportionality equation. It may be necessary to tolerate some level of ‘bare knowledge’ offence if groups who disagree fundamentally are to coexist.

Contextual Issues The factors discussed above should all be taken into account when assessing the proportionality of any protection of religious interests at work. In addition, the contextual issues discussed below should be considered, as they may have a bearing on the final outcome of any balancing of interests that is bound to occur when assessing proportionality. The first contextual factor to consider is the type of employer. This involves the question of whether the employer is part of the public sector or the private sector, as well as a consideration of the special status of religious employers.

The Public/Private Divide The exact dividing line between public and private sector employers is acknowledged to be difficult to draw with any certainty.147 The question has become increasingly complex in recent years after the privatisation of numerous public utilities, the contracting out of some parts of state-run enterprises such as cleaning and catering in hospitals to private contractors, and the move of parts of the public sector, such as individual prisons, to the private sector.148 In the context of remedies such as judicial review, the division between the public and private sector is vital, as the status of the body determines whether the remedy is available at all. However, in the context of determining the proper scope of religious interests when in competition with other interests in the workplace, it may be best to understand the division as a continuum or spectrum rather than as a sharp dividing line. The question of whether an employer is public or private sector could cause particular difficulties in the context of religion, as there are increasing moves to hand over the provision of public services to charitable or other private providers, some of which are religiously based.149 Education provides a prime example of the

147 D Oliver, ‘Common Values in Public and Private Law and the Public/Private Divide’ [1997] PL 630; G Morris, ‘The Human Rights Act and the Public/Private Divide in Employment Law’ (1998) 27(4) ILJ 293; G Morris and S Fredman, ‘Public or Private? State Employees and Judicial Review’ (1991) 107 LQR 298; G Morris, ‘Employment in Public Services: The Case for Special Treatment’ (2000) 20 OJLS 167. 148 See G Morris, ‘The Human Rights Act and the Public/Private Divide in Employment Law’ (1998) 27(4) ILJ 293. 149 See, eg, the guidance for local government on working with faith groups discussed at p 3 above.

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provision of a public service by religiously based providers with a large proportion of state schools having the status of faith schools. Here religious organisations provide services, funded by the state, which fulfil the fundamentally public obligations on the state to provide education for children. Other examples include charities involved in the delivery of public services, such as the provision of adaptations to the home for disabled people, of child welfare services and of health services, such as hospice care. In these cases, while the bodies themselves are not part of the public sector, they are clearly a long way along the continuum towards public status and away from purely private status.

Public Sector Employers Where the employer can be viewed as on the public end of the continuum, to the extent that they may fairly be said to represent the state, there may be additional factors at play, which call for particular types of protection for religious interests, whilst at the same time placing limits on the scope of the protection that is appropriate. If the employer is viewed as representing the state, protection of religious interests should only occur where it accords with the aims and interests of the state. The state, if it is committed to a pluralist society, may wish to accommodate a range of religious practices, so that it can encourage equal participation in the workforce for a range of religious groups.150 The state’s interests here are in reducing social exclusion to certain groups by encouraging participation in employment. This prevents detriments caused by being excluded from the economic benefits of working. Equal participation at work also encourages social cohesion by including the minorities in mainstream society, and improving integration between social groups who make up the society.151 It is also important for the state to reflect the full range of its citizenry in some jobs to reflect the inclusive nature of the society, sending the symbolic message to the rest of society that all citizens are equal and valued. Thus, ensuring that those from minority religions can participate in the armed services, or the police force, serves a legitimate aim of public policy.152 Moreover, many jobs or careers can only realistically be carried out in the context of state employment. Although there is a developing role for private medicine in the UK, the overwhelming majority of health-related careers operate in the context of the National Health Service. The same can be said for careers in education, 150 See J Rawls, A Theory of Justice (Oxford, OUP, 1999, revised edition) 196, who argues that justice as fairness requires equal participation in the state. 151 C Estlund, Working together: How Workplace Bonds Strengthen a Diverse Democracy (Oxford, OUP, 2003). See also M Kelman, ‘Market Discrimination and Groups’ (2001) 53 Stanford LR 833, 885. 152 See further, P W Edge, ‘Religious rights and choice under the European Convention on Human Rights’ [2000] 3 Web JCLI, who cites the MacPherson Report’s recommendation that those responsible for staffing ‘should seek to ensure that the membership of police authorities reflect so far as is possible the cultural and ethnic mix of the communities which those authorities serve’ (The Stephen Lawrence Inquiry, Report of an Inquiry by Sir William Macpherson, London, The Stationery Office, Cm 4262-I 1999 Recommendation 7). See also the discussion of the Police (Northern Ireland) Act 2000 at p 106 and 184.

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where the vast majority of primary, secondary and tertiary education comprises state provision. Those choosing careers in health or education, or indeed social work, the armed forces, professions related to the criminal justice system, and many others have little choice but to be employed within the public sector. As discussed above, there is no doubt that staff in these sectors remain free to choose other forms of employment, and the proportionality question must be determined in the light of the residual right to resign. Nonetheless, the fact that whole sectors of employment could be barred to members of particular religions if no protection is allowed, is an important contextual factor to be taken into account in assessing the proportionality of any protection. The various interests served by the protection of religious interests by public sector employers will vary according to the circumstances, such as the extent of the protection requested, and the strength of any competing interests. It may also vary according to the exact place on the public/private continuum the particular employer holds. The importance of having a cross-section of the population in terms of gender, ethnicity and religion may be stronger in an employment sector of symbolic importance such as the police and armed services, than in the case of a religious hospice providing care to patients, some of whom are funded by the state. However, the fact that a public sector employer represents the state may also work to create special limits on the extent to which religious interests can be protected, because of the equal interest the state has in upholding the dignity and equality of others on grounds of gender, race, sexuality and other grounds. Thus, although public sector employers may need to provide a level of protection to religious interests in order to uphold the public policy of promoting diversity and pluralism within the state, this will not extend to protecting religious interests at the expense of other equality interests to which the state is equally committed. The public policy imperative of protecting the dignity of all members of society means that where religious interests conflict with other equality interests those equality interests will usually prevail, especially where the employer can be identified as on the public end of the public/private continuum. The right to freedom of religion may be sufficiently strong to warrant protection in the workplace, but the case for its protection is based on the same factors as the case for protection of equality on other grounds. The need to uphold dignity and autonomy leads to a need to protect the individual on a number of grounds, and does not give reason for one ground to trump another. The protection from discrimination on religious grounds does not give rise to grounds for overriding others’ equality interests. It is therefore important that the state protects equality on grounds of gender, race and sexual orientation, etc, for all the same reasons set out above, namely the symbolic importance of public sector employment as reflecting public policy, the dominance of the public sector in certain spheres of work such as health and education, and the need to encourage employment in all social groups so as to equalise access to economic benefits and to improve social cohesion. The assessment of the proportionality of any protection of religion should therefore take into account

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the status of the employer, and its place on the continuum between public and private employment, along with other interests such as the need to provide a high quality of service and to achieve a degree of economic efficiency. Those engaged in employment of a public nature should have their religious needs accommodated where possible, but only to the extent that to do so does not infringe other equality rights, in order to reflect the public policy of maintaining the dignity and equality of all groups in society.

Private Sector Employers In contrast, the private sector is not compelled to promote the state’s social policy agenda, and may not have the same imperative to promote religious equality at work or to uphold other social policies within the workplace. Thus private employers may not need to provide the same level of protection for religious interests as public employers; but equally an employer which chooses to uphold religious interests may not have the same limit as public employers in terms of the extent to which they must also uphold other equality interests, at the expense of protecting those religious interests.153 As with the public sector, the notion of private employment may also be understood as a continuum. One can draw distinctions between the levels to which enterprises engage with the public. For example, some employment relationships may resemble private family arrangements, such as employment of a nanny or domestic cleaner, or employment in a small family business. In some cases the parties might not in ordinary language understand themselves to be part of an employment relationship, but for the needs of employment law policy this classification is made.154 Other enterprises engage to a greater degree with the public, and are more clearly within the category of employment with a more managerial relationship between employer and employee. One could go so far as to suggest that any organisation that provides services to the public, even though those services are not publicly funded, is somewhere along the continuum away from the purely private arrangement. An employer which wishes to engage with the general public in order to gain some benefit, such as access to the public market for the purpose of generating profits, is engaging with the public sphere to an extent, and could be required to conform to publicly accepted standards as regards the necessity to protect religion. This public level of protection is likely to involve some measure of accommodation to enable members of religious groups to achieve a degree of equality with other sections of the public, so as to reflect a basic level of protection for religious freedom. However, such employers would also be expected to limit religious accommodation where it is necessary to safeguard the equality rights of others. This argument can apply to religious ethos employers, where the religious 153

See discussion of autonomy of religious employers above at pp 70–72. To interpret employment law not to apply to these essentially private arrangements would lead to different but equal difficulties in other areas of employment law. See above at pp 62–63. 154

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group wishes to carry on a business, offering services to the public. They may have regard to the religious ethos in their recruitment policies, in order to respect the autonomy of the group, but this cannot be at the expense of the equality rights of others. However, where the employment relationship is more truly private, as with the nanny or domestic cleaner, the requirements to protect religious or other interests may be lessened.155 This may also apply to religious employers who are employing staff to serve the needs of the religious group, such as cleaning staff or administrative staff, or employing a helper for a church toddler group. The extent to which such jobs can be viewed as religious in nature will depend on the details of the job description, and the religious beliefs of the parties involved. For example, some religious groups may require that certain services be carried out by those sharing the religion.156 However, even where the work is not defined as religious in nature, the employment relationships in the case of those serving the needs of a religious employer are of a private nature, and do not involve any interaction with the public market. Greater freedom may therefore be given to the religious group to act in accordance with their beliefs, even where to do so may indirectly interfere with other equality rights. In effect, the role of the state in requiring compliance with the socially accepted norms of behaviour is reduced where the relationship is such a private one.157 The treatment of religious interests within the employment relationship may therefore vary depending on where on this spectrum the employment fits, with more flexibility regarding the protection of religious interests being given to more private employment relationships. This may involve greater or lesser protection, depending on the employer’s wishes, with religious ethos employers being given increased freedom to accommodate religion at the expense of other interests where the employment relationship is at the private end of the spectrum. The question of whether any particular protection or accommodation is proportionate should be assessed in the light of these contextual issues.

Work as a Public or Private Space There is an additional dimension to the question of whether employment is public or private in nature, and this is the question of whether the workplace itself should be seen as a public or private space. Although clearly the workplace is not private in the same way that the home is, work is not entirely a public space either. 155 The point is also made by M Kelman, ‘Market Discrimination and Groups’ (2001) 53 Stanford LR 833, 849, that there may be less need for anti-discrimination rules with regard to employment relationships that are ‘quasi-intimate’ relationships. 156 On the difficulty of determining the division between the religious private sphere and the secular private sphere, see R Wintemute, ‘Religion vs Sexual Orientation’ [2002] 1:2 Journal of Law and Equality 125. 157 It is plausible to achieve the same end by excluding such relationships from the definition of employment, but to do so would create further problems for vulnerable workers, and would be counter-productive. See discussion at pp 62–63 above.

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For example, individuals often enjoy close social friendships with colleagues, and may well socialise with them outside work. Indeed, a remarkable number of individuals meet their life partners at work. Courts have acknowledged the crossover between work and leisure time in sexual harassment cases where after-work socialising has come within the remit of the employer’s responsibility to protect staff against harassment. Examples from this case law of the cross-over between work as a public space and the private dimension of work are after-work drinks, work parties, or works family outings.158 The private nature of the workplace is also reflected in workplaces that encourage or allow staff to personalise their work spaces, for example by decorating them with pictures or photos. Such practices demonstrate the hybrid nature of the workplace, formally a public space but experienced by many in practice as having a private dimension. This private aspect of the workplace has been recognised in the case law of the ECHR. With respect to the privacy issues, it is recognised that individuals are entitled to a degree of respect for private life at work.159 Moreover, in Sidabras v Lithuania,160 the ECtHR recognised that work can play an important role in one’s ‘private life’, with a role in developing relationships with the outside world. It was also argued above that work plays an important role in creating individual identity and providing status. These may not be interests that prevail over other interests when considering the proportionality of protecting religious interests, but the assessment of proportionality should take into account that the workplace is not solely a public arena but can also be regarded as having a private dimension. One aspect of the private nature of the workplace is the role it can play in educating individuals about wider society. Not only is work an important forum in which individuals live out a large proportion of their lives, it is also an important space in which individuals can meet those they might not otherwise meet in other areas of their lives. For many, particularly those who live in religiously homogeneous groups in their private lives, the workplace is the main forum for meeting those with differing views, and for sharing ideas. Estlund has gone as far as to argue that the workplace is a valuable forum for religious discourse.161 Even though the facilitation of such discourse is clearly not the primary function of the workplace, it is clear that the workplace has the potential to act as a ‘melting pot’, where groups that might otherwise not mix actually engage with each other. As Schultz puts it, the workplace is ‘one of the few arenas in which diverse groups of citizens can come together and develop respect for each other due to shared experience’.162 158 Waters v Commissioner of Police of the Metropolis [1997] IRLR 589; Chief Constable of Lincolnshire Police v Stubbs [1999] IRLR 91; Sidhu v Aerospace Composite Technology [2000] IRLR 602. 159 Halford v UK (1997) 24 EHRR 523. 160 Sidabras v Lithuania App nos 55480/00 and 59330/00 (27 July 2004). 161 C Estlund, ‘Freedom of Speech in the Workplace and the Problem of Discriminatory Harassment’ (1997) 75 Tex LR 687, and C Estlund, Working together: How Workplace Bonds Strengthen a Diverse Democracy (Oxford, OUP, 2003). 162 V Schultz, ‘Life’s Work’ (2000) 100 Colum LR 1881, 1885.

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Thus, encouraging religious groups to mix within the context of work can enable religious understanding and tolerance to be developed. Clearly, employers are not responsible for providing spaces for private socialising, nor for religious debate, and it is not suggested that they should be. Nor should employees be forced to mix socially with their work colleagues. However, any assessment of the proportionality of protecting religious interests at work should take into account the hybrid public and private nature of the workplace. The fact that the workplace can be viewed as both a private and a public space has implications for the treatment of religious issues at work, particularly by religious ethos employers. Issues that may be viewed as wholly private, and therefore irrelevant to the employer in non-religious employment, may be of relevance to religious employers, and the recognition of a private dimension to the workplace means that they cannot be dismissed as irrelevant at work. For example, from a secular point of view, matters relating to the private lives of staff, as well as matters of personal and private morality, such as marital status and sexuality, should be irrelevant to the employer. However, religious employers can be intensely interested in issues of private morality as reflecting good religious standing and loyalty to the religion. Both employer and employee may view the employment as a forum for the expression of religion as much as any other part of their lives. It is inevitable that matters of personal morality will be relevant to a religious employer who wishes to maintain a religious ethos: part of having a religious ethos at work is that matters that to outsiders would be viewed as personal and private are shared. Where the employee has chosen to work for a religious employer, it may not be inappropriate for the employer to show interest in matters that in other contexts may be viewed as private.163 Of course, the extent to which secular employers have regard to personal morality is not a constant. Issues of private morality, such as honesty, may be relevant to the employer: it is accepted that an employer may dismiss for theft, rather than being required to put into place mechanisms to ensure that there will be no future incidents. Thus even with regard to secular employment matters of morality may be relevant, although the range of relevant issues may be greater with regard to religious employers. In considering the proportionality of an accommodation of religious interests, the fact that it is not always simple to create clear boundaries between a public workplace and the rest of life needs to be taken into account.

Religious Manifestation or Religious Motivation Under Article 9 ECHR a distinction is drawn between conduct that is motivated by religion and that which is a manifestation of the religion.164 That which is 163 See R Ehrenreich, ‘Dignity and Discrimination: Toward a Pluralistic Understanding of Workplace Harassment’ (1999) 88 Georgetown LJ 1, 27, who points out that the boundaries between public and private issues can be hard to draw in some harassment cases, where the judgment of whether behaviour is appropriate may be very context-specific. 164 Arrowsmith v UK (1978) 3 EHRR 218.

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merely motivated by religion is not a manifestation of religion, and so restrictions imposed by the employer on religiously motivated activity do not offend the ECHR. Although the distinction between the two can be difficult to draw at times,165 a broad distinction may be relevant in determining the proportionality of any restriction on religious freedom. Where behaviour is mandated by the religion to which an employee adheres, any refusal to allow the behaviour will involve a greater infringement of religious interests than a refusal to accommodate religiously motivated behaviour. To rule out employment protection for behaviours that are religiously motivated may be to provide too little protection for religious interests, not least because the distinction can be difficult to define with precision. It may also lead to the risk that greater protection is given to religions with more rigid beliefs than to those that are more flexible. This could create an inequality within the protection for religious interests, with stronger protection given those who believe there are severe, perhaps eternal, consequences for non-compliance with religious commands, and weaker protection for those whose rules are viewed as guidance rather than as mandatory. However, taking account of the centrality of the belief to the religious individual may nonetheless be of some relevance for the determination of proportionality. Where a work practice prevents a religious person from observing key tenets of the religion it will be harder to justify any refusal to protect the religious interest, than where the practice interferes with a religious preference. For example, a key tenet of the religion may be a requirement to pray at certain times of day. To refuse time off for prayers will involve a more significant infringement of religious interests than either to fail to provide a comfortable space to pray (however desirable that may be), or to refuse time off for members of other religions who would like to form a prayer group, but who are not required by their religion to do so. Similarly, where religious interests collide with other interests, the centrality of the belief will be one of the factors that will be relevant to the determination of proportionality. For example, where a religious group believes that religious rites can only be validly performed by men, that belief is so central to a core part of the religion that the gender equality interests of women will not prevail over the religious interests of the religious organisation. This is recognised in most human rights systems, where the freedom of religious groups to appoint their religious leaders is respected. However, where a preference for male staff applies other than in the appointment of those performing religious rites, then the equality interests of women will have more weight. In effect, the centrality of

165 See discussion in Ch 4 at pp 107–110. See also C McCrudden, ‘Religion, Human Rights, E quality and the Public Sphere’ (2011) 13 Ecclesiastical Law Journal 26, discussing the competence of courts to rule on such issues, and the need for judges to develop a ‘cognitively internal’ point of view when considering religious issues.

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the belief to the religious belief system is of some relevance to the determination of proportionality.166

Organic or Functional View of the Religious Workplace One particular difficulty that can arise with respect to religious employers is that the divide between work that is viewed as religious in nature and that which is not may be difficult to draw. Where employment is clearly religious, it would seem proportionate to allow the imposition by the employer of religious requirements, if religious freedom is to be respected, even though to do so may infringe other equality rights. For example, a requirement that an employee should be an observant Muslim may indirectly discriminate against gays and lesbians, due to Islam’s intolerance of homosexuality. It would seem clear that employment167 as a religious practitioner, such as a teacher of a religion, or as an officiator at religious ceremonies, is religious employment, and that religious requirements are appropriate even though they may infringe others’ rights. Refusing to accept limits on the non-discrimination principle with respect to such religious functions would be a significant restriction on religious freedom.168 However, once one moves from the realm of religious practitioners, matters become more difficult, as the boundaries between work within the ‘religious sphere’ and the ‘secular sphere’ are less easy to draw. Some would claim that any work for a religious ethos employer is within the ‘religious sphere’ and that it is acceptable to impose strict religious requirements on such workers. Others would argue that once one leaves those who officiate at religious ceremonies to one side, other staff are outside the ‘religious sphere’ and religious restrictions should be limited to those that do not discriminate on any other ground. The question which arises here is the extent to which we allow the idea of the religious sphere to expand.169 The assessment of whether it is proportionate for religious employers to impose religious requirements on staff will depend on the range of factors discussed above, such as whether either party is denied access to the workforce. It will also depend on whether an organic or functional view is taken of the workplace.170

166 See B N Bagni, ‘Discrimination in the Name of the Lord: A Critical Evaluation of Discrimination by Religious Organisations’ (1979) 79 Colum LR 1514, who suggests an analytic framework based on concentric circles of spirituality and secularity: matters relating to the core, central circle, such as appointment of clergy, should be insulated from state regulation. 167 There is significant debate over the employment status of clergy for the purposes of employment law, however such appointments are covered by the non-discrimination provisions of the Equality Act 2010. See P Edge, ‘Judicial Crafting of a Ministerial Exception: The UK Experience’ (2015) 4(2) Oxford Journal of Law and Religion 244. 168 Moreover, as discussed above at pp 62–63, the alternative response, denial of employment status, causes as many problems as it solves. 169 See R Wintemute, ‘Religion vs Sexual Orientation’ [2002] 1:2 Journal of Law and Equality 125. 170 A Esau ‘“Islands of Exclusivity”: Religious Organizations and Employment Discrimination’ (1993) 33 Univ British Columbia LR 719.

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The functional view is that the workplace exists to fulfil various functions, and each role should be considered with regard to that function. Thus the function of an officiator at a religious ceremony is to carry out religious observance, and it is necessary to comply with the religious rules if that observance is to be valid for the religious adherents. At the other end of the scale, the function of a cleaner of a church hall is to clean the building, and the religious beliefs of the individual worker have no impact on job performance. Again, there is a spectrum between these two extremes in which the religious nature of the functions is less clear cut. For example, it could be argued that an individual whose job is to teach the religion to young people, for example a church youth leader, need only have a good understanding of religious doctrine, without actually believing the truth of what he or she is teaching. However, most religious individuals would view it as essential that those who teach the religion to young people be active believers themselves.171 An alternative view of the workplace is more organic in nature, and recognises that some religious workers view work as a form of worship. For example, some Christians may view working for a Christian organisation as part of their Christian witness,172 particularly if they work in a role which involves interaction with the public. Thus, some religious workers might argue that their work entails a manifestation of their belief, even though the work does not involve direct proselytism. If one takes an organic view of the workplace, viewing it as a whole, one can see that a much greater range of jobs within the workplace should be viewed as religious in nature. A religious group may view every worker, from cleaner to religious teacher, as part of a team whose role is to witness to the truth of the religion. The idea that even the lowliest of workers can be fulfilling a religious function is well established in Christian teaching, and may resonate clearly with other religions too. If such a view is recognised by courts, it would enable religious groups to argue that a wide range of employment is religious in nature, although evidence may well be needed to show that religion permeates the particular workplace in practice.

The Meaning of Equality In assessing the proportionality of any response to religious discrimination, regard should be had to the overarching aims of discrimination law in promoting equality between different groups. The difficulty here, of course, is that equality has a variety of meanings, and determining what ‘promoting equality’ might require is both complex and contested. Indeed it has been suggested that we should now think in terms of equalities rather than equality, in recognition of the fact that no

171 This may not be the case in relation to the teaching of theology, or the teaching of religious education in schools, where not all religious experts are necessarily active believers. 172 This point is developed in R Fahlbeck, ‘Ora et Labora on Freedom of Religion at the Work Place: A Stakeholder cum Balancing Factors Model’ [2004] IJCLLIR 1.

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single understanding of equality is complete.173 The meaning and purposes of equality have been the subject of extended academic debate, and it not proposed to give a full account of that debate here.174 However, an outline of some of the main thinking is useful in order to see how different concepts may influence the outcome of any proportionality assessment regarding religion and belief protection at work. The most obvious meaning of ‘equality’ is formal or symmetrical equality, which requires that like cases be treated alike, with a focus on consistent treatment of individuals rather than on achieving any particular outcome. Clear disadvantages with this seemingly simple concept have long been recognised, and include the difficulty in determining when, indeed, likes are alike.175 The shortcomings of the formal equality concept have led to a search for more substantive concepts of equality. One model focuses on the link between equality and individual dignity and identity; a second model focuses on disadvantage and redistribution; and a third is based on equality as a means of addressing social exclusion and promoting participation.176 The first model of equality is based on the concept of human dignity and autonomy, and requires a response that goes beyond formally equal treatment. The concept of dignity and autonomy was used above177 to argue that religion is not adequately protected by the right to resign (formally equal treatment) but should be provided with at least some protection at work. Basing the understanding of equality on the idea of dignity also creates room to provide broader recognition178 for differences. It encompasses the idea that equality might involve recognition of the uniqueness of individuals, and their distinctiveness, thereby preserving the self-respect and sense of self-worth of all.179 The idea of recognition in this sense acknowledges that inequality arises not just in socio-economic terms, but in more

173 C McCrudden ‘Thinking about the discrimination directives’ (2005) 1 European Anti-Discrimination Law Review 17. 174 See, eg, D Hellman and S Moreau (eds), Philosophical Foundations of Discrimination Law (Oxford, OUP, 2013); T Khaitan, A Theory of Discrimination Law (Oxford, OUP, 2015); C O’Cinneide, ‘Fumbling Towards Coherence: The Slow Evolution of Equality and Anti-Discrimination Law in Britain’ (2006) 57(1) NILQ 57; C Barnard and B Hepple, ‘Substantive Equality’ (2000) 59 CLJ 562; S Fredman, Discrimination Law (Oxford, OUP, 2002); B Hepple, ‘The Aims of Equality Law’ in C O’Cinneide and J Holder (eds), 61(1) Current Legal Problems 1 (Oxford, OUP, 2008); See also N Fraser, ‘Rethinking Recognition’ (2000) 3 New Left Review 107; and C Taylor, Multiculturalism and ‘The Politics of Recognition (Princeton, NJ, Princeton University Press, 1992). 175 See P Westen, ‘The Empty Idea of Equality’ (1982) 95 Harv LR 537. See also C Barnard and B Hepple, ‘Substantive Equality’ (2000) 59 CLJ 562; and S Fredman, Discrimination Law (Oxford, OUP, 2002). 176 H Collins, ‘Discrimination, Equality and Social Inclusion’ (2003) 66 MLR 16; S Fredman, The Future of Equality in Britain, EOC, Working Paper Series No 5, (London, Equal Opportunities Commission 2002) 11; N Fraser, ‘Rethinking Recognition’ (2000) 3 New Left Review 107. 177 See discussion at pp 45–49 above. 178 See N Fraser, ‘Rethinking Recognition’ (2000) 3 New Left Review 107; and C Taylor, Multiculturalism and ‘The Politics of Recognition’ (Princeton, NJ, Princeton University Press, 1992). 179 Rawls, too, identifies self-respect as a ‘primary good’. J Rawls, A Theory of Justice (Oxford, OUP, 1999, revised edition).

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cultural and symbolic terms too.180 Inequality, or misrecognition, in this sense can lead to negative self-image, stigma and lack of self-esteem, all of which are harmful in themselves, as well as leading, in some cases, to economic disadvantage. Such an understanding of equality could be of significance in assessing the proportionality of a request by a religious employee for an accommodation of religion at work; for example, it may be proportionate to allow a particular accommodation (such as time off for prayer) on the basis that it would be beneficial to provide some recognition for a minority group, even if the same accommodation (flexible time off) would not be offered to everyone.181 An alternative conception of equality is based on removing socio-economic disadvantage, or, in its more radical form, in redistribution of wealth and advantage more fairly across society, thereby removing disadvantage. Such an approach sees the wrong of discrimination as being in the way it causes disadvantage, rather than in its lack of recognition of different identities. Given that religion and belief do have some correlation to disadvantage,182 a concern for redistribution could have some effect on any assessment of proportionality in the workplace. For example, it may shift the balance in favour of accommodating religion at work as a way to alleviate that disadvantage, where the accommodation is requested by a disadvantaged group. One of the benefits of a focus on disadvantage is that any accommodation provided for religion does not have to imply an endorsement of religion on the part of the employer. Instead, the accommodation is offered with the aim of removing disadvantage rather than valuing the religion or belief itself. A third model of equality is based on inclusion and participation. Fredman identifies a vision of equality based on the need to allow all groups an equal set of alternatives from which they can pursue their own version of a good life. She suggests that equality law should aim at a number of ends, such as breaching the cycle of disadvantage associated with out-groups, as well as promoting respect for the equal dignity of all and redressing stigma, stereotyping, humiliation and violence because of membership of an out-group, and affirming community identities. In effect, this vision embraces both recognition and redistribution. She adds an additional aim, however, which is to facilitate full participation in society.183 Collins184 also seeks to move thinking about discrimination law towards issues such as social inclusion. Again, the argument is that minority groups need to be encouraged to participate in civic life, so that their voice within the community can become stronger, leading to an end to their marginalisation. This may mean

180 N Fraser, ‘From Redistribution to Recognition? Dilemmas of Justice in a “Post-Socialist” Age’ (1995) New Left Review 1/212 68. 181 This is not to suggest that time off for prayer will always be proportionate, as this will depend on the interaction of the other factors discussed in this chapter. 182 See discussion in Ch 1, at pp 5–8. 183 S Fredman, The Future of Equality in Britain, EOC, Working Paper Series No 5 (London, Equal Opportunities Commission, 2002) 11. 184 H Collins, ‘Discrimination, Equality and Social Inclusion’ (2003) 66 MLR 16.

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using both recognition and redistribution, not as ends in themselves but rather as ways to achieve a more equal society in terms of economic distribution and social harmony. Fraser185 provides another voice advocating full participation in society as an aim of equality. She notes that both lack of recognition and economic disadvantage can impede full participation in social life, due to lack of confidence or esteem, or lack of resources; and suggests that greater participation in society is a way of moving towards a broader form of social justice. A focus on inclusion as part of the aims of equality law could have a significant effect on the scope of the protection for religion and belief at work. As suggested above,186 the workplace can play a key role in promoting inclusion, not only because it provides economic benefits to individuals, but also because the workplace itself is a significant forum for social mixing. The vision of equality held by any tribunal or court will thus be an important contextual factor likely to influence the determination of proportionality. For example, if formal equality is the goal, courts are unlikely to view as disproportionate neutral requirements with which religious people have difficulty complying. Where Fredman’s broader concept of equality is used, with promotion of participation as part of the vision of equality, outcomes could be quite different. Tribunals may want to encourage religious groups to engage in mainstream society by limiting the extent to which they can create religiously homogeneous workplaces. Or they may take account of the role of religion in shaping cultural identity, and so allow minority groups the freedom to express their cultural identity at work. Such an approach results in a very nuanced approach to equality as the facts of different cases interact with the different factors. Assessing proportionality in order to promote ‘equality’ is thus a very complex process, and requires an analysis of the interaction of different factors. In addition, if equality is understood to encompass the need to redress disadvantage, the broader socio-political context, discussed below, is likely to become important in assessing what ‘equality’ might require.

Socio-Political Context In assessing proportionality the socio-political context is also of significance where the view of equality is not purely formal. The importance of such factors as the historical disadvantage of the relevant groups, and the level of social exclusion or disadvantage currently experienced, should be taken into account in assessing whether it is proportionate to allow either religious freedom to be infringed or, indeed, whether other equality rights can be overridden in the name of religious freedom. It was suggested above that discrimination law can be understood to include an aim of increasing social inclusion, and that this aim should help 185 N Fraser, ‘From Redistribution to Recognition? Dilemmas of Justice in a “Post-Socialist” Age’ (1995) New Left Review 1/212 68. 186 See discussion at p 41 above.

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to determine the correct parameters of the law. Clearly this will not help resolve every contentious issue in this area, but helping increase social inclusion for groups that have suffered exclusion from society’s goods in the past may help to resolve the clash between rights on a principled basis in some cases. For example, if it is acknowledged that Muslims have suffered disadvantage in access to the job market, it may be proportionate to require a greater level of protection for their religious practices than for religious groups for whom such disadvantage cannot be shown.187 Thus the need to improve social inclusion for out-groups should be taken into account in assessing the proportionality of any religious requirement for a job. However, factors such as historic disadvantage will not always point towards protection of religion, and what is proportionate could vary according to the religion in question: the Muslim community in Britain will have a different experience of disadvantage from the Anglican community. Where religious groups’ employment practices discriminate against women, for example, historic disadvantage as a factor may cut both ways: it may favour protection of a minority religious group, as well as protection for women or lesbian and gay people who have also been subject to historic disadvantage. Where such contextual issues do not provide clear answers, the conflict will only be resolved with reference to the other factors discussed above. Thus, for example, although women have suffered disadvantage historically, this may not automatically outweigh the benefits of affirming community identities among disadvantaged communities that wish to employ only those of the same conservative religious traditions in small private sector religious organisations.

The Role of the State One final factor which should be taken into account in difficult cases is the extent to which it is appropriate for the state to intervene to settle disputes. Where individual human rights interests are clearly infringed, it is right for the state, through the courts, to intervene to provide protection.188 However, where the question of whether the rights are infringed or not is finely balanced, it may be worth considering whether it is proper for the state to intervene to uphold one set of interests over another, where to do so involves intervening in the conduct of what may be viewed as a type of private relationship. It is, arguably, not appropriate to expect legislative intervention in the regulation of the religious sphere. Of course, it might be argued that the employment relationship is public in nature, and so intervention is appropriate, but it is part of the argument of this chapter that employment has a private dimension so that the employment relationship is of a hybrid publicprivate nature. 187 Such groups may be Christians, who as members of the majority religion may face less systemic disadvantage. 188 Young, James and Webster v UK [1981] IRLR 408.

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Moreover, one of the reasons for providing protection for religious interests is the fact that protecting religious freedom can be a useful tool in preventing or overcoming religious conflict.189 Although it was suggested above that this reason was insufficient alone to provide a rationale for the protection of religious interests at work, it remains of significance. Despite the existence of an established church within the UK, it is still arguable that the state should remain neutral in religious disputes. Courts may well be wary of intervening where to do so amounts to state regulation of religious matters. Again, whether or not state intervention will be appropriate will be determined by considering all the proportionality factors. The decision may depend on the centrality of the religious interest to the religious group, the extent to which the job involved is religious in essence and the extent to which any restriction interferes with the individual’s ability to work, as well as the other factors discussed above.

V. Conclusion It has been argued above that religious interests are sufficiently important to individual dignity and autonomy to warrant protection within the workplace. This is the product of the importance of the workplace as a forum for the exercise of fundamental rights combined with the importance of religious interests themselves. Equally important, however, are other rights based on dignity and autonomy, and rights to equality on a number of grounds such as gender, sexual orientation, race and disability. It is where these interests conflict that difficulties arise with regard to establishing the correct parameters for any protection for religion within the workplace. It was not the aim of this chapter to reach conclusive answers on how to resolve such conflicts, as this would depend on the complex interplay of a wide range of factors. Instead, the aim was to consider the range of factors at stake in cases where religious matters arise at work, and to consider how those factors should be balanced in seeking proportionality in the treatment of conflicting interests. Those factors range from individual or ‘micro’190 interests, to more contextual or ‘macro’ interests. For example, ‘micro’ interests may include the personal interests of employees and colleagues, the business interests of the employer and the religious interests of religious ethos employers. Macro interests will include wider contextual issues, such as whether the employer forms part of the public or private sector, the extent to which the employer engages with public markets, whether the

189

See discussion above at pp 41–42. See S Choudhry, ‘Rights Adjudication in a Plurinational State: The Supreme Court of Canada, Freedom of Religion, and the Politics of Reasonable Accommodation’ (2013) 50 Osgoode Hall LJ 575, discussing Multani v Commission scolaire Marguerite-Bourgeoys [2006] 1 SCR 256. 190

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workplace can be viewed as a public or private space, and the socio-economic factors that are at work. Exactly how these factors interact will depend on the facts and the socio-economic context. Within the employment context, any deliberations on proportionality must be carried out in the light of the fact that no-one has a right to a given job. This remains the basic answer when religious groups require excessive accommodation. The arguments for protection of religious interests at work are strong, but they do not require that an employer should have to make very costly adjustments to accommodate a religious employee. The employee’s residual protection lies in his freedom to leave his job. Take the hypothetical example of an employee who wishes to work in public relations, whose core job involves ‘meeting and greeting’ clients, but who refuses, for religious reasons, to shake hands with women: this employee does not have a right to a job, and has no ‘right’ to work in this particular line of work. He remains free to exercise his freedom of religion outside work. It may therefore be acceptable for the employer to refuse to accommodate his religious practice. However, the ‘right to resign’ argument should not be the starting point of any discussion, and will not always prevail. For example, a woman who wants to wear trousers at work for religious reasons, in a workplace where the uniform is a skirt, may need to be accommodated, unless there are very strong contra-indicators. Accommodation is unlikely to be costly to the employer, and a conclusion that her freedom of religion is protected by freedom to leave would seem inadequate, given the ease with which accommodation could be granted. A particular problem is caused by religious ethos employers, and the question of whether it is ever proportionate to protect their religious interests at the expense of the equality interests of others. As a general rule, discrimination against others, even where motivated by religion, will not be proportionate. However, respect for autonomy may involve allowing some space for religious intolerance of others, albeit of a very limited kind. It may be that discriminatory religious groups should be allowed to retreat from mainstream society to create ‘islands of exclusivity’ from which they can exclude those with different views.191 This allows adequate protection for religious freedom for individuals who hold these views, as they remain free to associate with those of the same religion. They also remain free to enter into employment relationships with others of the same faith, in order to regulate the provision of services within the group. Within this restricted sphere, groups can operate in an exclusive manner, without being required to provide employment for those of other religions or lifestyles. Allowing religious groups to retreat in this manner provides sufficient protection for their religious interests, without causing much harm to other interests. Other interests may be infringed, but not to a significant extent. For example, a religious group’s requirement that

191 A Esau, ‘“Islands of Exclusivity”: Religious Organizations and Employment Discrimination’ (1993) 33 Univ British Columbia LR 719.

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their toddler group leader share the group’s religion will not significantly reduce the job prospects of non-religious child care workers. The main detriment is the offence caused to others by allowing such practices to continue. However, in the absence of other harms, offence caused by the bare knowledge that religious practices occur should not be sufficient to determine proportionality.192 To the extent that the group wishes to interact with the rest of society, however, they can be expected to conform to the norms of the rest of society in terms of respect for the dignity and autonomy of others.193 Thus if a religious group wishes to enter a contract with the state to deliver services to the public, such as medical or social services, the group should conform to the standards of respect for others that is required by the state. Thus the religious group would not be able to provide such services if the job requirements indirectly discriminate against women or against gay or lesbian workers. This requirement could be limited to cases where the religious group provides services that are paid for by the state. However, a stronger version of the argument would mean that where the religious group engages in any way with wider society, the norms of society should be respected. Thus where a religious group offers commercial services to the public, it should be required to do so equally for all members of society. For example, a coffee shop run by a religious group would not be able to discriminate in its employment practices if the coffee shop were open to the public. In contrast, if coffee were being served only to members of the same religious group, for example after church services, the employing church might be allowed to discriminate indirectly in its recruitment practices. Those who seek the advantages of access to the public market, however, need to respect the dignity and equality of all members of the public.194 Using the model of work-based religious accommodation outlined above will enable a reasonable balance to be achieved between the right to freedom of religion and other competing rights. The model is predicated on maximum respect for dignity, autonomy and equality within the public sphere, broadly defined, but retaining the right for groups, religious or not, to retreat to ‘islands of exclusivity’ that remain essentially private. Interpreting the UK law according to this model should result in most workplaces engaging in respectful pluralism,195 or inclusive even-handedness,196 where religious practice can be accommodated a longside

192

See discussion above at pp 74–79. S Wessels, ‘The Collision of Religious Exercise and Governmental Non-discrimination Policies’ (1989) 41 Stanford LR 1201, who draws a distinction between the inward-looking and outward-looking activities of religious organisations, and suggests that inward-looking activities should be free from government restrictions, but that outward-looking activities, where the group has chosen to step outside its internal life, should be subject to non-discrimination rules. 194 See the discussion in Ch 6 of the position in the USA and Canada, where religious requirements can only be imposed for work in the not-for-profit activities of religious organisations. 195 D A Hicks, Religion and the Workplace: Pluralism Spirituality, Leadership (Cambridge and New York, CUP, 2003). 196 See M-C Foblets and K Alidadi (eds), Summary Report on the Religare Project (RELIGARE, 2013), in Foblets et al (eds), Belief, Law and Politics: What Future for a Secular Europe? (Farnham, Ashgate, 2014) Ch 2. 193 See

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other equality and dignity rights. Where religious groups wish to dissociate from the rest of society, they should remain free to do so, out of respect for their religious freedom. However, any intolerant religious practices will be significantly burdened, as they will not be able to gain any benefits from engagement with the wider society.197 It has been noted that religious discrimination and freedom of religion are closely linked. Later chapters consider the current law on religious discrimination at work in the UK and beyond, and assess the extent to which protection matches the model developed above. First, the European protection for religion will be considered—both that of the Council of Europe under the ECHR, and that of the EU, under Directive 2000/78.

197 It should be noted that although some of the observations may be of use in the wider debate over how to reconcile competing rights, any conclusions suggested here are offered in the limited context of reconciling conflicting rights at work.

4 Freedom of Religion at Work: The European Dimension The right to freedom of religion is granted extensive protection within international law, demonstrated by its inclusion in the Universal Declaration of Human Rights (UDHR), the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR).1 In addition, EU law protects against discrimination on grounds of religion and belief in employment and occupation under EU Directive 2000/78. The focus of this chapter is on the protection for religion and belief2 provided by the two European legal frameworks of the Council of Europe and of the European Union, and the extent to which they apply to the work relationship. The chapter starts by considering the protection provided for religion and belief under Article 9 ECHR. It then moves on to explore the protection under the EU Equality Directive, before concluding with a discussion of how the two legal frameworks interact. A preliminary issue is the relationship between the two legal regimes and domestic law. In the case of EU law, all member states are bound to comply with the terms of EU Directives. In the case of the ECHR, the position in the UK is governed by the Human Rights Act 1998, considered below.

I. Freedom of Religion and the European Convention on Human Rights Protection under the Human Rights Act 1998 Under the Human Rights Act (HRA) 1998, the ECHR is partially incorporated into domestic law.3 This means that where a Convention right is infringed at work, 1

Art 18 UDHR, Art 9 ECHR, Art 18 ICCPR. See Ch 2 for a discussion of the meaning of religion in the case law of the ECtHR. 3 The discussion here is brief. For more detail on how the HRA 1998 works to incorporate the ECHR into domestic law, see J Wadham, H Mountfield and A Edmundson, Blackstone’s Guide to the Human Rights Act 1998, 6th edn (Oxford, OUP, 2011). See also L Vickers, Freedom of Expression and Employment (Oxford, OUP, 2002). 2

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rather than having to make an application directly to the Court in Strasbourg (the ECtHR), an applicant will be able to use the ECHR in domestic courts. The HRA 1998 provides individual rights of action against public authorities4 for breach of Convention rights, as well as requiring statutes to be interpreted to comply with the Convention5 and the common law to be developed in harmony with Convention jurisprudence. In addition, where a question to be determined by a court or tribunal might affect the exercise by a religious organisation of the Convention right to freedom of thought, conscience and religion, the court or tribunal should have particular regard to the importance of that right.6 Under the HRA 1998, employees of public bodies who believe that their right to freedom of religion or belief under Article 9 is interfered with by their employer have an independent cause of action under the Act. Accordingly, those who work for government departments, local government, health authorities, education authorities and the police can claim directly against their employer for any breach of their Convention rights. The range of employees potentially covered by this provision is wider than just the traditional public sector. Under section 6(3) the term ‘public authority’ includes any body whose functions are ‘of a public nature’,7 thus covering some private organisations. For example, organisations such as the former public utilities and private sector prisons may be hybrid in nature, due to their private ownership coupled with provision of publicly funded services. Section 6(3) has the potential to cover private organisations that contract with the state to provide services, under the process of contracting out or privatising services previously provided by the state. However, the meaning of public authority has been fairly narrowly defined in this context,8 so that services commissioned by a public authority will not automatically be ‘of a public nature’ so as to be governed by the 1998 Act. Beyond the limiting of protection to public or hybrid public authorities, the potential for direct protection for employees under the HRA 1998 is further narrowed by the distinction it draws between acts of a public nature and those of a private nature. The distinction does not apply in the context of overtly public authorities, such as local government, but an otherwise private body, which is a public authority because it carries out some public functions, is only bound to 4

HRA 1998, s 6. HRA 1998, s 3. 6 HRA 1998, s 13. Given that under the HRA 1998 a court should have regard to the rights under Art 9, it is not particularly clear what this section adds to the general protection, although it does suggest that where religious employers seek to rely on religious rights, the importance of the right to religious freedom should be considered. 7 The exact division between public and private sector remains elusive. See H Woolf, ‘Public Law— Private Law: Why the Divide?’ [1986] PL 220; G Morris and S Fredman, ‘The Costs of Exclusivity’ [1994] PL 69 and G Morris and S Fredman, ‘Public or Private? State Employees and Judicial Review’ (1991) 107 LQR 298; D Oliver, ‘Common Values in Public and Private Law and the Public/Private Divide’ [1997] PL 630; A Grear, ‘Theorising the Rainbow? The Puzzle of the Public-Private Divide’ (2003) 9 Res Publica 169. For a general discussion of the impact of public law on employment law, see P Davies and M Freedland, ‘The Impact of Public Law on Labour Law 1972–1997’ [1997] ILJ 311. 8 YL v Birmingham City Council and others [2007] UKHL 27. 5

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comply with the Convention in relation to those public functions. Acts of a private nature carried out by hybrid bodies are therefore not susceptible to a direct claim under the HRA 1998; and it is fairly well established that employment matters are viewed as private in nature.9 Thus employees in private organisations will be unable to make direct claims against their employers for breaches of their Article 9 rights in the workplace, whether or not their employers fulfil public functions. This avoids the creation of an anomaly whereby only some of the staff in a private sector organisation would be covered by the HRA 1998, with others left unprotected, depending on whether the part of the business in which they work is public in nature in terms of the services provided. However, an alternative anomaly is created, whereby staff doing the same job, such as working as a prison officer, may or may not be protected by the 1998 Act, depending on whether their employer is part of the public or the private sector.10 Although the existence of such anomalies in the protection provided to human rights within the work context is far from satisfactory, there is more potential for using the HRA 1998 in relation to private sector employment than might be apparent at first sight. This is due to the fact that courts and tribunals are viewed as public authorities,11 meaning that they are themselves bound to uphold Convention rights in hearings, regardless of whether the parties are public or private in nature. Consequently, the Convention must be taken into account in interpreting the common law and statute, even where the subject matter of the dispute is of a private nature. This provides significant potential for Convention rights to be taken into account within the work context, regardless of the nature of the employer. The most obvious example of the effect of the HRA 1998 in the employment relationship can be found in the statutory remedy of unfair dismissal, and the fairness of a dismissal under section 98(4) of the Employment Rights Act 1996. In assessing the fairness of a dismissal, Employment Tribunals will need to consider the question of whether the dismissal infringes one of the Convention rights, in order to comply with their obligation as public bodies to comply with the Convention. Where a dismissal touches on a Convention right, the question of whether it was ‘reasonable or unreasonable’ to dismiss in the circumstances thus needs to be answered with reference to the Convention standard. For example, the fairness of dismissal should be assessed not only by reference to current employer standards, but also with due regard for the employee’s human rights, and making reference to the legitimacy of the aim of the employer in dismissing the employee and the proportionality of the employer’s response.12 It is also arguable that the duty on courts and tribunals to interpret and develop the common law in accordance with the jurisprudence of the ECtHR could have 9 McClaren v Home Office [1990] ICR 824 establishes that employment disputes are viewed as private matters in relation to judicial review. 10 See further, L Vickers, Freedom of Expression and Employment (Oxford, OUP, 2002) 74–76. 11 Section 6. 12 See Pay v Lancashire Probation Service [2004] ICR 187 EAT; X v Y [2004] EWCA Civ 662.

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an effect on the development of the understanding of the contract of employment in general, and the duty of trust and confidence in particular. Hepple suggested13 that the duty of trust and confidence14 might be developed to include an understanding that Convention rights are to be protected within the employment relationship, on the basis that it is unlikely that either party would envisage a relationship at odds with the fundamental rights protected in international law. Indeed, in Johnson v Unisys,15 Lord Hoffman referred to the fact that the employment relationship must involve the observance of fundamental human rights as well as recognising general economic interests.16 The scope of the duty of trust and confidence within the employment relationship is still developing,17 and it may be that, in time, such an understanding will evolve. However, it should also be noted that other developments within employment law suggest a hesitance on the part of the judiciary to extend the scope of the duty of trust and confidence too far.18 The HRA 1998 thus creates potential for the right to freedom of religion or belief under the ECHR to operate within the employment relationship, and to be protected in domestic law. Employees in the public sector have the potential to make direct claims under the Act if their Convention rights are infringed at work; and all employees, public or private sector, can expect the jurisprudence of the ECtHR to be taken into account when employment disputes involve Article 9 rights.19 In fact, domestic courts are not bound to follow the European decisions, only to take them into account. They remain free to develop their own applications of the Convention. If domestic interpretation is more restrictive than that available at the ECtHR in Strasbourg, the individual’s right to appeal to the ECtHR remains, notwithstanding the existence of the HRA 1998. However, the fact that the rights available to individuals under Article 9 ECHR can apply within a work context, even if sometimes indirectly, will be of little consequence if the protection under Article 9 itself is inadequate. What will be seen below is that the protection under the Convention is not particularly strong. However, the domestic courts are not bound by the European jurisprudence, as it allows courts to interpret the Convention rights to give the best protection to religious freedom in the domestic setting. Instead of being bound to follow decisions from Strasbourg, they could follow a more progressive approach, particularly with regard to the use of the margin of appreciation. This will be discussed further below. First, the protection under the ECHR will be considered.

13

B Hepple, ‘Human Rights and Employment Law’ (8 June 1998) Amicus Curiae 19. ‘general obligation not to engage in conduct likely to undermine the trust and confidence required if the employment relationship is to continue in the manner the employment contract implicitly envisages’: Malik v BCCI [1997] 3 All ER 1, per Lord Nicholls at 5. 15 Johnson v Unisys [2001] UKHL 13. 16 Lord Hoffman, at [37]. 17 D Brodie, ‘Mutual Trust and Confidence: Catalysts, Constraints and Commonality’ (2008) 37(4) ILJ 329. 18 For example, the overall decision in Johnson v Unisys [2001] UKHL 13. 19 HRA 1998, s 2. 14 A

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Protection of Freedom of Religion Under the European Convention on Human Rights The ECHR provides two bases for the protection of religious interests: Article 9, the right to freedom of thought, conscience and religion; and Article 14, the right not to be discriminated against in the enjoyment of Convention rights on grounds including religious grounds. The right to freedom of religion under Article 9 is divided between what is known as the forum internum, an absolute right, referring to the right to have inner thoughts and beliefs, and the forum externum, referring to the right to manifest religion or belief. The right to manifest is not an absolute right, and it can be restricted where necessary and proportionate to protect others’ rights.20 Before looking at the scope of the protection under Articles 9 and 14, the preliminary question of whether the Convention provides protection in the workplace will be considered.

The Application of the Convention to the Workplace Although the right to freedom of religion and belief is protected under Article 9 ECHR, the question of whether the Convention rights apply at all within the workplace has been contested within the case law, and the ECtHR has not always taken a consistent view on this issue.21 Traditionally the jurisprudence of the ECHR has accepted the ‘specific situation rule’, the recognition that a person’s Article 9 rights may be influenced by the particular situation of the individual claiming that freedom. In particular, where individuals voluntarily submit themselves to a system of rules that limit their manifestation of religion, their claims will be limited. Examples of the specific situation rule can be seen in the context of religion and employment, as well as in other contexts, such as the school dress code cases.22 The specific situation rule applied in the case of the workplace meant that freedom to leave one’s job was understood to act as sufficient protection of one’s

20

See in more detail below. 1998, cases under the ECHR were first heard by the European Commission on Human Rights (ECommHR), to determine whether cases were admissible or inadmissible as being ‘manifestly unfounded’. Admissible cases were then subject to attempts to reach friendly settlement. Those not settled were heard by the ECtHR. From 1 November 1998 this process was replaced by a new system under Protocol 11. Cases are now heard by smaller subdivisions of the full Court. Committees of three judges make the first-level decision on admissibility. Admissible cases are then heard by Chambers of seven judges, who consider their merits. Where a case involves serious issues regarding the interpretation of the Convention, it can be referred to a Grand Chamber consisting of 17 judges. Reports of decisions of the ECtHR and the ECommHR, Chambers and the Grand Chamber are referred to below as part of the ‘jurisprudence’ of the Convention, with ECtHR and Grand Chamber decisions being given greater weight. 22 For example, Dahlab v Switzerland [2001] ECHR 899,. See also the UK House of Lords case of R (On the application of Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15. 21 Until

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fundamental human rights. Thus in early cases such as Kosiek v Germany23 and Glasenapp v Germany,24 where staff were refused permanent employment because of their active membership of extreme political parties, the ECtHR held that the dismissals did not interfere with Convention rights (here freedom of expression) because the issue was one of access to the civil service, and so was not covered by the Convention.25 The reasoning suggested that dismissal from employment involved no prima facie interference with Convention rights; that Convention rights do not apply at work, because of the freedom of the individual to resign. On such an approach, the case falls at the first hurdle. The specific situation rule was applied in several cases involving the Article 9 right to freedom of religion or belief. In Ahmad v UK,26 a teacher claimed that Article 9 was breached when he was refused permission to change his working hours to enable him to attend the local mosque for prayer on a Friday lunchtime. His claim was ruled inadmissible: his right to freedom of religion was not infringed as he was free to resign.27 In Stedman v UK,28 involving a dismissal for refusing to work on Sundays, the Commission took the view that there was no breach of Article 9, as the employee was free to resign. This approach was repeated more recently in Sessa v Italy,29 where there was said to be no interference with the applicant’s Article 9 rights when a court refused to adjourn a case hearing even though the dates offered clashed with major Jewish religious festivals, because the applicant was still free to fulfil his religious duties.30 Yet although a restrictive approach was taken in the case of religious freedom, cases involving other Convention rights (such as the Article 8 right to respect for private life and the Article 10 right to freedom of expression) have gradually allowed for fundamental rights to apply at work. For example, in Vogt v Germany,31 the ECtHR decided that dismissal of a teacher for her political activity amounted to an interference with her right to freedom of expression, on the basis that that work-based restrictions on rights are significant interferences, because, in practice, they will reduce the willingness of rights-bearers to exercise their rights. In N iemietz v Germany32 and Sidabras v Lithuania,33 the ECtHR considered the 23

Kosiek v Germany Series A no 105, (1986) 9 EHRR 328. Glasenapp v Germany Series A no 104, (1987) 9 EHRR 25. 25 See also Leander v Sweden, Series A No 116, (1987) 9 EHRR 433, where the applicant claimed that the refusal to offer him a job as a museum technician, because certain secret information allegedly made him a security risk, was in breach of Art 10 ECHR. The application was dismissed on the basis that the right to recruitment to the public service was not recognised by the Convention. 26 Ahmad v UK (1981) 4 EHRR 126. 27 See discussion above at p 54 ff on the extent to which the ‘right to resign’ can provide protection for religious freedom. 28 Stedman v UK (1997) 23 EHRR CD168. 29 Sessa v Italy App no 28790/08 (ECtHR, 3 April 2012). 30 Ibid, at para 37. 31 Vogt v Germany Series A no 323, (1996) 21 EHRR 205; Niemietz v Germany Series A no 251-B, (1992) 16 EHRR 7. 32 Niemietz v Germany, Series A no 251-B, (1992) 16 EHRR 7. 33 Sidabras and Dziautas v Lithuania App nos 55480/00 & 59330/00 (ECtHR, 27 July 2004). 24

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c oncept of ‘private life’ and whether the private sphere could be extended to cover the workplace. The argument used was that the workplace does not form a separate part of an individual’s life, and so the full enjoyment of human rights must include their enjoyment at work.34 For those whose religion infuses each part of their life, it is legitimate to argue that full protection of the right to freedom of religion must entail some level of protection at work; and in some Article 9 cases too, the ECtHR gradually became more receptive to the idea that sanctions imposed at work can amount to an interference with the Convention right. In Saniewski v Poland,35 the Court implied that there was an interference with the right to freedom of religion where an employment-related penalty was suffered for its exercise; and Pitkevich v Russia,36 the Court found that the dismissal of a judge for the expression of her religious views involved a prima facie interference with her rights under Article 9 (although on the facts, discussed below, the dismissal was found to be proportionate and in pursuit of a legitimate aim). Finally, in 2013, in Eweida and Others v UK,37 the Chamber of the ECtHR followed the approach of the Court in the Articles 8 and 10 cases, to find that the right to religious freedom does operate within the workplace. In effect, the specific situation rule was relaxed in this context. The cases involved four employees who claimed discrimination at work because of their manifestation of religion, and they are discussed in more detail below. On the issue of whether their respective manifestations of religion could be protected under Article 9, the Chamber of the Court held that they could. Referring to Vogt and the developments in the Court’s case law in the context of other rights, the Court held that ‘where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate’.38 It would seem, then, that the Court has now clearly accepted, in the context of Article 9, that work-based restrictions on a person’s exercise of religious freedom can amount to a prima facie infringement of the right to freedom of religion or belief. Nonetheless, even if the prima facie case may be made out, claimants will still need to show that any interference with Article 9 is the result of a manifestation of religion, and that it cannot be justified as proportionate and for a legitimate aim. These two further aspects of Article 9 protection are discussed below. First, two further obstacles to using the Convention in domestic law need to be addressed: that the Convention is a treaty that binds states but may not apply to private sector employers; and that employees may ‘contract out’ of their Convention rights upon entering employment. 34

See discussion above at pp 56–59 and 73 of the importance of work to the individual. Saniewski v Poland App no 40319/98 (ECtHR, 26 June 2001). Pitkevich v Russia App no 47936/99 (ECtHR, 8 February 2001). 37 Eweida and Others v UK [2013] ECHR 37. 38 Eweida at para 83. 35 36

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Treaty Basis of the Convention The fact that the Convention only binds states need not cause insuperable difficulties for private-sector staff, as there is a general acceptance within Convention case law that states can be held responsible for any failure to enact legislation to protect employees from breaches of the Convention. In Young, James and Webster v UK,39 the state was held responsible for the failure to provide a remedy for those dismissed for non-membership of a union, in potential breach of Article 11 ECHR. Failure by the domestic courts to protect freedom of religion at work can similarly give rise to an Article 9 case, even where the employer is in the private sector. The fact that the right to freedom of religion and belief may protect employees in the private sector is confirmed by the acceptance in Eweida (above) of the claims of both McFarlane and Eweida, who were employed by private-sector organisations.

Contracting Out of Protection The second difficulty in using the Convention to protect freedom of religion at work is closely related to the ‘right to resign’ argument, but its legal basis is different. This is the argument that when individuals enter the contract of employment, they may contract out of their Convention rights. For example, an employee who agrees to abide by a company dress code may be said to have contracted out of her rights to freedom of religion, at least so far as they may relate to modes of dress. The difficulty here is that if an employee can contract out of her Convention rights, there is then no need to address the question of whether the restrictions on the exercise of rights are necessary and proportionate to achieve a specified legitimate aim. The case falls at the first hurdle, as the rights are not engaged. Although it is undoubtedly the case that employees may agree not to exercise their rights at work, the ECtHR has not allowed this argument to apply in an absolute manner. It seems that if national courts were to enforce or uphold rights for employers to impose, by contract, absolute restrictions on Convention rights, this would breach the state’s responsibility to safeguard the rights of employees, in the same way as the absence of legislative protection for human rights breached the state’s obligations under the Convention in Young, James and Webster40 and Eweida and others v UK.41 Instead, employees can contract out of their Convention rights, as long as the contractual restriction is capable of flexible interpretation, allowing courts to assess the proportionality and necessity of the restriction in the particular case.42 It should thus be difficult to argue that employees contract 39 Young, James and Webster v UK Series A no 44, (1982) 4 EHRR 38. The case did not consider whether British Rail, the employer, was a public sector employer, but worked on the basis that the Government had responsibility to enact legislation to protect its citizens’ human rights. 40 Ibid. 41 Eweida and others v UK [2013] ECHR 37. 42 See G Morris, ‘Fundamental Rights: Exclusion by Agreement?’ [2001] ILJ 49. On the ability to contract out of the right to free speech, see Vereniging Rechtswinkels Utrecht v The Netherlands (1986) 46 DR 200. See also Rommelfanger v FDR (1989) 62 DR 151.

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out of the right to freedom of religion entirely when entering employment, and so cannot complain at all about workplace restrictions on their freedom. Instead, the better view is that any contractual duties restricting freedom of religion should only be upheld where they are necessary and proportionate in accordance with Article 9(2), as discussed below.

Freedom of Religion Under Article 9 Article 9 ECHR provides: (1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. (2) Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Freedom of religion is protected under Article 9 ECHR, along with freedom of thought and conscience, as one of the foundations of a ‘democratic society’, and as one of the ‘most vital elements that go to make up the identity of believers and their conception of life’, and in recognition of the importance of the pluralism that is indissociable from a democratic society.43 At a general level, then, Article 9 is viewed as fundamentally important because it is a reflection of individual autonomy, as well as being necessary to the pluralism of the modern world. Article 9 recognises that freedom of religion has both an individual and a collective dimension.44 The right is to manifest religion ‘either alone or in community with others’. This means that the right extends to religious groups as well as to religious individuals. The right to freedom of thought, conscience and religion, in its pure form (the forum internum), is an absolute right under the Convention, and refers to the right to have inner thoughts and beliefs. It is arguable that in this form the right must inevitably be absolute, particularly as beliefs and thoughts themselves are intangible in nature. The protection of the rights of the forum internum is aimed at preventing state interference with a person’s thought and conscience, by way of state coercion to believe and brainwashing. It also prevents forcible attempts to change a person’s religion or beliefs, and prohibits indoctrination by the state.45

43

Kokkinakis v Greece Series A no 260-A, [1993] 17 EHRR 397 at para 31. Hasan v Bulgaria App no 30985/96, (2002) 34 EHRR 55; Serif v Greece App no 38178/97, (2001) 31 EHRR 20. 45 P van Dijk and F van Hoof, Theory and Practice of the European Convention on Human Rights, 4th edn (Antwerp and Oxford, Intersentia, 2006). 44

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Protection for the forum internum, although absolute, is not usually required in the work context, as it would be unusual for restrictions to be imposed upon it in the workplace. The protection is provided while the employee’s thoughts and beliefs remain private and unexpressed: once religious beliefs are expressed or acted upon, they are no longer part of the forum internum, and the protection is no longer absolute. It has been argued that both a requirement to reveal one’s religion and discrimination on the basis of religion involve interference with the forum internum.46 However, thus far, the ECtHR has not taken this approach, instead taking the view that disadvantageous treatment at work does not of itself amount to an interference with the forum internum. Although this approach was criticised above in relation to the forum externum, in relation to the forum internum it is probably correct. The protection for the forum internum is absolute, and so any discrimination on grounds of religious belief would become absolutely prohibited; there is no mechanism for allowing for genuine occupational requirements, or any other justification in the Article 9(1) framework for the forum internum. One effect of this would be that any measures for positive action on grounds of religion would have to be disallowed, however beneficial in terms of furthering other interests. This question was considered in the Northern Irish case Re Parsons’ Application,47 involving the appointment of police under the Police (Northern Ireland) Act 2000. Under the Act, the Chief Constable of the Police Service of Northern Ireland had to appoint half the police from those treated as Roman Catholic, and half from those not so treated.48 Parsons was in the pool of those who were not Roman Catholic and was not appointed.49 He challenged the case as breaching Article 9 ECHR, on the basis that he had been treated less favourably because of his religion. In rejecting the case, the Court of Appeal in Northern Ireland held that Article 9 was not engaged. Discrimination at work on religious grounds did not constrain Parsons from holding a particular belief, nor did it induce him to change faith, and so the protection of the absolute right to believe was not infringed. Had the Court held otherwise, the democratically agreed method to address religious inequality and division in Northern Ireland would have had to be prohibited. It is suggested that the decision on the question of whether there is an infringement of the forum internum as a result of employment discrimination was correct. Employment discrimination should not amount to an interference with the absolute right to believe. However, this is not to say that it cannot amount to an interference with the qualified right to manifest religion (below).

46 B G Tahzib, Freedom of Religion and Belief: Ensuring Effective International Protection (The Hague, Kluwer Law International, 1996). 47 Re Parsons’ Application [2003] NICA 20. 48 See discussion at p 184 below. This legislation lapsed in 2011, following a review of the legislation. See at . 49 The pool of qualified Roman Catholic applicants was smaller, so he was able to show that had he been Roman Catholic, he might have been appointed (para 7).

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Indeed, most of the cases raising freedom of religion under the ECHR have involved the qualified right to manifest religion in worship, teaching, practice and observance alone or with others, subject to the restrictions set out in Article 9(2). It is the freedom to manifest religion that has the greatest potential to affect religious people in the workforce, but even so, the Convention by no means provides a guarantee that the right can be of great use in the context of work. Before establishing a right to manifest religion at work, employees will need to overcome a number of hurdles, or filters. The preliminary hurdle was that of showing that the right to exercise freedom of religion applied at all at work, a matter resolved in Eweida.50 A second hurdle is establishing that the contested conduct or activity is a manifestation of religion. If this is the case, the employee will, thirdly, need to show that any restriction does not come within the restrictions set out in Article 9(2). These hurdles are significant, and success in using the ECHR to protect the right to exercise freedom of religion at work is far from certain. Each step will be considered in turn, with reference to the current state of the case law on the ECHR.

Manifestation of Religion The right to manifest religion or belief has several aspects to it. It covers worship, teaching, practice and observance, whether in public or in private. It is the manifestation of belief that is most likely to give rise to conflict in the workplace, and to be the cause of interference by the employer. For example, a work uniform may interfere with a religious employee’s right to manifest her religion. Similarly, employees who require time off for religious observance, who require special dietary provision or who try to convert their colleagues, may all claim to be manifesting their religion. The religious employer who requires religious observance by employees also infringes the right to manifest another religion or no religion. In more contentious cases, a manifestation could involve a request to work with others of the same religion, or requiring separation from non-believers. Given that the right to freedom of religion can be exercised at work, the extent to which an employer may be required, under the Convention, to accommodate the religious needs of staff will be determined in part by whether such requests are indeed manifestations of religion. The difficulty for employees is with the interpretation of the term ‘manifestation’. Under the ECHR, a distinction has been drawn between manifestations of religion, on the one hand, and activities that are merely ‘religiously motivated’, on the other. Where an activity is identified as only motivated by religion, it is not protected under Article 9, and so employers are under no obligation to accommodate that motivation. Much therefore turns on the scope of the term ‘manifest … in worship, teaching, practice and observance’. The early case law was fairly restrictive. In Arrowsmith,51 a committed pacifist was prevented from distributing 50 51

Eweida and others v UK [2013] ECHR 37. Arrowsmith v UK (1978) 3 EHRR 218.

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acifist leaflets to soldiers: the Court’s view was that distributing leaflets was not p a manifestation of her beliefs, and so her right to manifest religion or belief was not infringed. Similarly, in Pichon and Sajous,52 where two pharmacists refused to sell contraceptives as a result of a religious objection, the Court held that the term religious ‘practice’ in Article 9 does not ‘denote each and every act or form of behaviour motivated or inspired by a religion or a belief ’, and that only acts ‘forming part of the practice of a religion or belief in a generally accepted form’ are protected.53 In the work context, this approach has meant that if behaviour is not required by a religion as part of religious observance, it can be restricted by an employer without engaging Article 9 ECHR. The effect has been that the protection offered by Article 9 is significantly restricted, as many of the accommodations of religion requested by religious staff are for religiously inspired behaviour rather than for pure religious observance. Such a restrictive approach can be strongly criticised: first, too restrictive an interpretation of ‘manifestation’ means that cases are lost before the proportionality of restrictions can be considered. Secondly, creating a binary division between religious manifestation and religiously motivated behaviour involves an inappropriately restrictive view of religion and its role in life. The distinction may accord with some understandings of religion, in which the focus is on observing rules, but does not fit at all well with a broader comprehension. To illustrate the problem examples can be drawn from Christianity, but similar examples could be used from other religious traditions. Christianity can be viewed as involving a set of rules that one must obey, including, for example, to love one’s neighbour, to attend church, to pray, to give alms, to forgive and to abstain from sexual immorality. Some of these rules are, arguably, manifestations of the religion, such as church attendance and prayer. Impeding individuals’ ability to attend prayers would therefore be an infringement of their religious practice and would need to be justified. Other rules either do not require positive behaviour (for example, they may consist in abstaining from certain behaviour) or they take place purely in the forum internum (for example, forgiveness), and so they are harder to interfere with, but also less likely to cause difficulties at work. The problem arises with more all-encompassing religious mandates, such as to ‘love one’s neighbour as oneself ’. This is a clear Christian obligation, but there is no fixed way to measure compliance. Activities by an employee, such as offering to pray for someone, which can be inspired by the instruction to love one’s neighbour, are likely to be said to be religiously inspired or motivated rather than manifestations of the religion. This is because the general rule to love one’s neighbour is a clear religious obligation, but there is no clear set of instructions for compliance with that obligation. Determining what is motivated and what is mandated in such circumstances is far from easy. A third difficulty caused by the interpretation in Arrowsmith is that the question of what is necessary for a religion, and what is only motivated by it, can be difficult to 52 53

Pichon and Sajous v France App no 49853/99 (Admissibility decision, 2 October 2001). Pichon and Sajous v France App no 49853/99 (Admissibility decision, 2 October 2001).

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determine. In some cases even adherents of the same religion may not agree. For example, the question of whether church attendance is obligatory is not one on which Christians agree. It is important that courts do not overstep their competence in ruling on matters of faith and doctrine. For example, in Valsamis v Greece,54 the ECtHR decided that the refusal by Jehovah’s Witness children to take part in a military parade was merely religiously motivated, rather than required by their religion. On this basis, the penalty imposed on them for their refusal to participate did not infringe Article 9. The approach is controversial.55 First, it may cause difficulties for minority and less well-known religions, where there is no clear line of authority on the faith’s requirements. Secondly, the approach suggests that a court has the expertise to decide what is required by a religion, and suggests that the court can determine what significance a certain practice has for the individual, which is a matter that is beyond the competence of a secular court.56 Even for religions where lines of authority are well established, the question of what is required by a religious faith cannot be answered easily. After all, a person may individually believe that certain conduct is required by his or her faith, even though others of the same faith disagree. The wearing of a head covering by Muslim women is a clear example of conduct that some feel, as a matter of faith, is required conduct, while others do not. Similarly, in Eweida (discussed below), two of the applicants believed that it was important to wear a cross while at work as an expression of faith, a belief not shared by other Christians. In Valsamis, the Court itself determined that the parade did not offend the religious views of the children.57 Similarly, in the Grand Chamber decision Lautsi v Italy,58 the Court made a ruling on the meaning of the crucifix, holding that it was a ‘passive symbol’,59 and so could remain displayed in schools. But it must surely be wrong for a secular court to be the arbiter of the significance of any particular religious activity for any particular believer. Such an approach is also surprising given the absolute protection under the Convention for belief itself as part of the forum internum. Eventually, in Eweida and others v UK,60 the Court took a more flexible approach to the issue of manifestation of religion. It distinguished between acts ‘remotely connected to a precept of faith’, putting Arrowsmith into this category; and acts

54

Valsamis v Greece (1997) 24 EHRR 294. See S Stavros, ‘Freedom of Religion and Claims for Exemption from Generally Applicable Neutral Laws: Lessons from Across the Pond’ (1997) 6 EHRLR 607. 56 However see Shergill v Khaira [2014] UKSC 33, in which the UK Supreme Court noted that judges would not adjudicate on the truth of religious beliefs; however, a court might have to determine religious issues, if they were capable of objective assessment, where a claimant sought the enforcement of private rights and obligations that depended on those religious issues. 57 Valsamis v Greece (1997) 24 EHRR 294, at para 31, ‘it can discern nothing, either in the purpose of the parade or in the arrangements for it, which could offend the applicants’ pacifist convictions’. 58 Lautsi v Italy App no 30814/06 (ECtHR, 18 March 2011). 59 Ibid, at para 72. 60 Eweida and others v UK [2013] ECHR 37. 55

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that are ‘intimately linked to the religion or belief ’,61 such as the act of worship. It went on to say that the manifestation of religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. In particular, there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question […].62

This is a welcome acceptance by the Court that the manifestation of religion can include a much wider range of activities than those strictly required by religion. It avoids the problem identified above of the Court’s becoming embroiled in matters that should remain outside its competence. Before the Eweida decision, the question of whether a practice amounted to a manifestation of religion or was merely motivated by religion acted as a significant barrier to claims under Article 9 in the context of protection in employment. This meant that questions of proportionality were never reached, and the proper parameters for the protection of religion were not fully explored. After Eweida, that barrier has been removed, and it now seems clear that many of the accommodations sought by employees, such as the meeting of dietary requirements, time off for religious observance, requests to opt out of particular work tasks and uniform codes, can be viewed as manifestations of religion or belief, and thus as potentially protected by Article 9. The question of whether they are so protected will be determined by the application of Article 9(2) rather than the cases failing at a preliminary stage.

Article 9(2) Under Article 9(2) ECHR, an interference with religious freedom will not breach the Convention if the limitations imposed are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. In effect, limitations on the manifestation of religion are allowed as long as they are for a legitimate aim, and are necessary and proportionate to the achievement of that aim. All three conditions have to be met before a restriction or interference with freedom of religion can be acceptable under the Convention. Prescribed by Law Sunday Times v UK63 contains the classic definition of what is needed for a restriction to be ‘prescribed by law’: First the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient

61

Ibid, at para 82. Ibid. 63 Sunday Times v UK Series A no 30, (1979) 2 EHRR 245. 62

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precision to enable the citizen to regulate his conduct: he must be able to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable.64

The interference with religious freedom that employees may experience is very likely to meet this description. Employees could face disciplinary action or dismissal for breaching dress codes; or they could face dismissal for refusal to work at particular times. Some expressions of religious affiliation could offend codes of behaviour at work,65 for example if they amount to harassment of other staff. The laws relating to unfair dismissal, discrimination or harassment that may be engaged in such cases are not without uncertainty, as outcomes at times are difficult to predict, but they will be within the bounds of acceptable uncertainty envisaged by the ECHR. The law governing the workplace is sufficiently foreseeable: sufficient guidance can be drawn from case law, which provides for the parameters within which judicial discretion is exercised, for the outcome to be predicted with an acceptable degree of certainty.66 Legitimate Aims in Article 9(2) The purpose most likely to be applicable in the context of freedom of religion within the work context is the protection of the rights of others. Precisely which ‘rights of others’ need such protection is not specified, and there seems to be no requirement that the rights of others have to be legally enforceable rights. Religious rights may, of course, conflict with others’ equality rights, such as rights to gender and sexual orientation equality.67 The right of the employer to enjoy a degree of managerial prerogative in the running of the business will be a ‘right of others’ that should be balanced against the right to freedom of religion, as may be the rights of other staff to work in an environment in which their equality and dignity are respected.68 A similar, somewhat vague, ‘right’ that has been recognised in the context of the workplace is a right that was infringed by a male employee who wished to wear what are conventionally considered ‘female’ clothes. This was said to protect the right of the employer ‘to protect its own proper functioning and carrying out of its duties on behalf of the public’, again a right that is not an enforceable freestanding right.69 Other rights of others that may be protected by restrictions on

64 Ibid, at para 49. See also Hodgson and others v UK (1987) 51 DR 136, where the Commission said that ‘[t]he mere fact that a legislative provision may give rise to problems of interpretation does not mean that it is so vague and imprecise as to lack the quality of “law” in this sense’. 65 In Barthold v Germany Series A no 90, (1985) 7 EHRR 383, the ‘law’ was not limited to national laws but extended to professional rules and codes of conduct. Discipline or dismissal of an employee may therefore be ‘prescribed by law’ where this is provided for by a professional code of conduct. 66 See also Goodwin v UK ECHR 1996-II, 483 (1996) 22 EHRR 123, paras 31 ff. 67 Dahlab v Switzerland [2001] ECHR 899. 68 See discussion at pp 67–79 above of potential rights that can compete with rights to religious freedom in the workplace. 69 See Kara v UK App no 36528/97 (ECtHR, 22 October 1998).

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the full enjoyment of religious freedom are rights not to be put under pressure by another’s observance. For example, in Sahin v Turkey,70 the Court noted that the wearing of a headscarf may put other students under pressure to adopt more fundamentalist approaches to their faith.71 These cases suggest a fairly relaxed approach by the ECtHR to identifying the legitimate aim of any restriction on religious freedom. Indeed, in the case of SAS v France,72 the ‘rights of others’ was defined even more broadly. The case involved a ban in public spaces on the contentious religious dress of the full-face veil (known in France as the ‘burqa-ban’). This was a significantly far-reaching restriction, as it imposed a criminal sanction on the manifestation of religion, and was to be enforced not just in the limited context of work or school, but much more generally in any public place. In its judgment, the Court discounted a number of the more obvious legitimate aims that the ban could potentially serve, such as to uphold human dignity or gender equality, or to maintain security. However, it concluded that the aim of ‘living together’ (le ‘vivre ensemble’) could justify the ban as long as it was proportionate. The decision can be criticised for its potential to leave wide open the aims of any restrictions on religion; indeed, the dissenting judges labelled this aim ‘far-fetched’ and ‘vague’, and even the majority of the Court conceded that it was a ‘flexible’ notion, which therefore needed careful examination to ensure its necessity.73 Although any legal restrictions on religious freedom have to be prescribed by sufficiently clear laws, it seems that after the SAS v France decision, the aims of those rules do not have to be specified with the same degree of clarity. The dangers of too broad an interpretation of the ‘rights of others’ was recognised in the dissent in Ahmed v UK,74 where the rights of members of the public to effective political democracy was accepted as ‘rights of others’ in the context of freedom of speech. As the dissenting opinion put it, allowing the rights of others to be interpreted too vaguely means that the concept risks ‘being stretched so far as to lose almost all distinct meaning’.75 In the light of the decision in SAS v France,76 it would seem, however, that many of the restrictions on religion at work will meet the first two elements of Article 9(2), as the requirements to be prescribed by law and serve a legitimate aim are interpreted fairly generously by the ECtHR. It is therefore in relation to the necessity and proportionality of the interference that the supervision of the ECHR will take place.

70

Sahin v Turkey App no 44774/98 (ECtHR, 10 November 2005). issue was also in play in R (On the application of Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15. 72 SAS v France App no 43835/11 (ECtHR, 1 July 2014). 73 Ibid, at para 122. 74 Ahmed v UK ECHR 1998-VI 2195 (2000) 29 EHRR 1. 75 See the joint dissenting opinion of Judges Spielmann, Pekkanen and Van Dijk, at para 1. 76 SAS v France App no 43835/11 (ECtHR, 1 July 2014). 71 This

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Necessity in a Democratic Society For any restriction to be necessary, it must be proportionate to the legitimate aim pursued. In this context, ‘necessary’ means more than just ‘useful’, ‘reasonable’ or ‘desirable’.77 This suggests a fairly high level of review, and that restrictions on human rights will not be justified lightly. Yet the ECtHR has also recognised that states need a certain flexibility in their observance of the Convention. Thus a ‘margin of appreciation’ is allowed to states in setting the parameters of their domestic law. The concept of the ‘margin of appreciation’ allows flexibility to states in the interpretation of the Convention, although if used too extensively it has the potential to undermine the protection afforded.78 The theory is that this flexibility is limited, being at all times subject to European supervision, but in religion cases the ECtHR has allowed a fairly wide margin to operate,79 perhaps reflecting the lack of consensus across Europe about how religion should be treated. Originally the creation of case law, the margin of appreciation is now explicitly referred to in Article 1 of Protocol 15 to the Convention. The way in which the margin of appreciation determines the scope of the protection under Article 9 is examined further below. First, some of the other factors that can influence the interpretation of proportionality are discussed. Guidance can be found from case law relating to Article 9, as well as that covering other Convention rights exercised in the context of the workplace. The case law suggests that the following issues may be relevant in determining proportionality: the nature of the restriction on religion; the nature of the applicant’s job; the relationship between the religious expression and the applicant’s job; and the nature of the religious belief. The Nature of the Restriction on Religion Interference with religious freedom at work can vary, and could range from a complete ban on those of certain beliefs from working at the establishment, to more minor refusals to accommodate forms of religious practice at work. The case law of the ECtHR in relation to other human rights, such as freedom of expression, indicates that where the exercise of the right is prohibited altogether, the sanction is more likely to be found to be unnecessary. For example, in Lingens,80 criminal proceedings brought in respect of the writing of articles criticising a senior politician effectively meant that freedom of speech was barred altogether, and so the proceedings were found to breach Article 10 ECHR. In contrast, where speech has not been totally banned, the protection of 77

Handyside v UK Series A no 24 (1981), 1 EHRR 737, at para 48. See D Tsarapatsanis, ‘The margin of appreciation doctrine: a low-level institutional view’ (2015) 35(4) LS 675; H C Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (Dordrecht, Martinus Nijhoff Publishers, 1996); T A O’Donnell, ‘The Margin of Appreciation Doctrine: Standard in the Jurisprudence of the European Court of Human Rights’ [1982] Human Rights Quarterly 474; and T H Jones, ‘The Devaluation of Human Rights Under the European Convention’ [1995] PL 430. See also P W Edge, ‘The European Court of Human Rights and Religious Rights’ (1998) 47 ICLQ 680. 79 C Evans, Freedom of Religion under the ECHR (Oxford, OUP, 2001) 143–44. 80 Lingens v Austria Series A no 103, (1986) 8 EHRR 407. 78

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the Convention has been more limited.81 However, the approach of the Court in requiring very weighty reasons to justify significant levels of restriction, such as criminal sanctions, upon the exercise of Convention rights, is undermined by the decision in SAS v France.82 Although the Court acknowledged, as in the previous case law, that the criminal sanctions attached to the ban increased the impact of the measure on those concerned, nonetheless it also held that the total ban on the face veil in public spaces was proportionate, taking into account the fact that the sanctions were among the lightest that could be envisaged.83 The symbolic significance of an outright ban on a religious practice, backed by criminal sanction, was given very little weight in the case, in contrast to the approach in Dudgeon v UK84 and Norris v Ireland,85 where the Court accepted that the very existence of the criminal sanctions continuously and directly affected the applicant’s human rights, whether or not proceedings were initiated.86 The resulting lack of clarity regarding the significance of the existence of a criminal sanction, following SAS v France, does not significantly affect the position of work-based restrictions on religious freedom, as such restrictions will never amount to an absolute ban on belief. As set out above, the ECtHR accepted in Eweida that the right to resign was insufficient to protect religious freedom; instead it was suggested that the freedom to leave one’s job should be taken into account in determining proportionality.87 The approach means that the right to resign does not automatically prevent any claim against work-based interferences with religious freedom; however, it does recognise that such interferences can be justified where it is proportionate to do so. It is clear that the right to freedom of religion is not a right to an unburdened freedom, and it is acceptable for the exercise of the right to include some cost to the religious adherent. Thus, the fact that the employee is not forced to work can act as some level of protection for the individual. The argument that the employee will not be forced to enter a workplace must be addressed at some point in any consideration of the scope of the right to freedom of religion at work, and the issue is best considered in terms of the proportionality of any restriction. The Nature of the Applicant’s Job Strasbourg case law has recognised that some jobs will involve a greater restriction on religious freedom than others. In Pitkevich v Russia,88 the dismissal of a judge for the expression of her religious

81 Vereniging Rechtswinkels Utrecht v Netherlands (1986) 46 DR 200. Note, however, that it was not an employment case. 82 SAS v France App no 43835/11 (ECtHR, 1 July 2014). 83 Ibid, at para 152. 84 Dudgeon v UK (1981) 4 EHRR 149. 85 Norris v Ireland (1988) 13 EHRR 186. 86 Dudgeon v UK (1981) 4 EHRR 149, at para 42; Norris v Ireland (1988) 13 EHRR 186, at para 38. 87 Eweida and others v UK [2013] ECHR 37, at para 82, ‘rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate’. 88 Pitkevich v Russia App no 47936/99 (ECtHR, 8 February 2001).

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views was found to be proportionate. In the context of her work as a judge, where it was necessary for her to uphold the impartiality and authority of the judiciary, it was proportionate to dismiss her. For example, she had prayed publicly during hearings and promised favourable outcomes to parties who agreed to join her church. She had intimidated parties in court and had criticised the morality of parties to proceedings concerning family matters. The outcome of the case is not surprising, and shows that the ECtHR will take into account the nature of the job in determining proportionality. Other jobs that have been identified within the case law, concerning which greater restrictions on religious freedom may be proportionate, are teaching and the armed services.89 In Kalaç v Turkey,90 a military judge was compulsorily retired for breaches of discipline and scandalous conduct. Kalaç’s conduct and attitude had ‘revealed that he had adopted unlawful fundamentalist opinions’.91 The Court found that Kalaç’s forced retirement did not breach his freedom of religion, in part because he had accepted some limitation on his fundamental freedoms by deciding, of his own accord, to pursue a military career.92 The particular position of teachers was relevant to the decision of the Court in Dahlab v Switzerland.93 The applicant was a teacher of young children, with influence on their intellectual and emotional development. This meant that a restriction on wearing the headscarf as an expression of the Muslim faith was proportionate. Similarly, although not an employment case, in Sahin,94 the observation was made that students may feel under pressure to adopt stricter approaches to the religion if others wear the headscarf.95 Thus the fact that religious behaviour may influence others seems to have been important in the reasoning in the cases. It is arguable that the position of education is special, and that the argument would not be the same for those who wear the headscarf in other sectors of employment where there is less influence on others; after all, the influence of a teacher on young children may be different from the influence exercised by individuals in most other jobs. However, in Ebrahimian v France,96 in a Chamber judgment, the ECtHR also applied the same reasoning regarding the need for neutrality to workers in the health service, on the basis that a visible religious affiliation might imply that patients would not receive an impartial service. The outcome in Ebrahimian suggests it is proportionate for a state to require that all public sector jobs be subject to limitations in terms of religious dress.

89 See

Larissis v Greece [1998-I] ECHR 65, discussed below at p 116. Kalaç v Turkey (1997) 27 EHRR 552 Ibid, at para 8. 92 See also Yanasik v Turkey (1993) 74 DR 14. 93 Dahlab v Switzerland [2001] ECHR 899. 94 Sahin v Turkey App no 44774/98 (ECtHR, 10 November 2005). 95 This issue was also in play in R (On the application of Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15. 96 Ebrahimian v France App no 64846/11 (ECtHR, 26 November 2015). 90 91

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The Relationship Between the Religious Expression and the Applicant’s Job A further related factor that influences the outcome of cases on freedom of religion within the work context is the relationship between the religious expression and the applicant’s job. Where the religious expression takes place outside work, it is easier to argue that any infringement related to work is disproportionate. However, the converse is also true: where the religious activity affects the individual’s work, restrictions are more likely to be proportionate. An example of the ECtHR’s taking the nature of the job into account in assessing whether Article 9 had been breached can be seen in Larissis v Greece,97 where the conviction of a group of military officers for proselytism of the men under their command was said not to infringe the officers’ right to freedom of religion. Here the ECtHR took the view that the proselytism amounted to an abuse of power by the officers. Similarly, in Pitkevich,98 the dismissal was clearly a result of the judge’s conduct in post. The Court explicitly pointed out that the facts that warranted the judge’s dismissal related exclusively to her official activities and did not concern any expression of her religious views in private. Again, it is the fact that her religious expression interfered with her conduct at work that was relevant to the finding that the dismissal was proportionate. The Nature of the Employer As noted above, the ECHR can still apply within the employment relationship.99 Thus the fact that an employee works in the public or private sector does not mean that there is no prima facie protection for freedom of religion and belief. Nonetheless, the status of the employer will be significant when considering the proportionality of any restriction. Where the employer is the state, the need for impartiality and neutrality in terms of religion is, arguably, greater. Although it can also be argued that state employers should reflect the make-up of the society that the state governs,100 this argument has not been accepted in the case law of the ECtHR. In Dahlab v Switzerland,101 one factor in deciding that the prohibition on the teacher’s wearing a headscarf was proportionate was that she was a ‘representative of the state’. In Sahin102 it was also accepted that the public university should reflect the secular nature of the state, and this argument was given significant weight in determining whether the restriction on religious expression reflected in the headscarf ban was proportionate. The need to uphold neutrality in the public sector more generally was accepted by the Court in Ebrahimian v France.103 The nature of the employer may also be relevant where the employer is religious in nature. The ECHR case law gives clear protection to religious communities in

97

Larissis v Greece [1998-I] ECHR 65. Pitkevich v Russia App no 47936/99 (ECtHR, 8 February 2001). 99 See discussion at pp 101–103 above. 100 See discussion of public sector employers in Ch 3 at pp 80–82. 101 Dahlab v Switzerland [2001] ECHR 899. 102 Sahin v Turkey App no 44774/98 (ECtHR, 10 November 2005). 103 Ebrahimian v France App no 64846/11 (ECtHR, 26 November 2015). 98

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choosing their own leaders. Where a religious body acts as an employer, it may be that greater religious restrictions on employees will be accepted, in order to reflect the community’s religious interests.104 The Nature of the Religious Belief It was argued above that courts should not be the arbiters of what an individual believes. Instead, for the protection to be meaningful, each individual’s beliefs need protection. However, this is clearly not the same as providing equal levels of protection to every individual belief. Those beliefs that interfere with the rights and freedoms of others will be given less protection than those that are compatible with others’ freedoms.105 This is reflected in in Kalaç v Turkey,106 where the Court referred to the fact that the decision to retire Kalaç, a military judge with connections to a fundamentalist sect, was not based on his religious beliefs ‘but on his conduct and attitude’.107 Cross-reference is then made to the statement by the Government that ‘the protection of Article 9 could not extend, in the case of a serviceman, to membership of a fundamentalist movement, in so far as its members’ activities were likely to upset the army’s hierarchical equilibrium’.108 The Court itself does not say that fundamentalist views are given less protection, but the reference to the applicant’s attitude, with the cross-reference to the Government’s argument on the point, suggests a degree of support for the view that interference with intolerant religious views is more likely to be found to be proportionate when balanced against other interests in accordance with Article 9(2). The nature of the belief, in the sense that a religious practice exercised at work can be a ‘manifestation’ of religion or can be merely ‘motivated’ by religion, may also be relevant to the question of proportionality. Although the result of the decision in Eweida is that the distinction between practices that are motivated by religion and those which are required is no longer determinative of the question of protection, nonetheless, the importance of a practice to the individual may be relevant in assessing whether it is proportionate to restrict a particular practice. Although the distinction between motivated behaviour and manifestation was collapsed in Eweida, the idea that some religious practices are more fundamental to believers than others is inescapable,109 and will be of some relevance in determining the proportionality of any proposed restrictions. The Role of the Margin of Appreciation In assessing the proportionaliy of any restriction on fundamental rights, the ECtHR has long recognised that states need a certain flexibility in their observance of the 104 Hasan v Bulgaria App no 30985/96, (2002) 34 EHRR 55; Serif v Greece App no 38178/97, (2001) 31 EHRR 20. See also the discussion of Obst and Schüth v Germany below page 129. 105 See Art 17 ECHR, and the discussion in L Cariolou, ‘The right not to be offended by members of the British National Party’ (2006) 35(4) ILJ 415. 106 Kalaç v Turkey (1997) 27 EHRR 552. 107 Ibid, at para 30 (emphasis added). 108 Ibid, at paras 25 and 30. 109 See discussion on whether a practice is mandated by the religion in Ch 3 at pp 85–87.

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Convention, and so the Court allows a ‘margin of appreciation’ to states in setting the parameters of their domestic law. To an extent this reflects a recognition by the Court that states parties may be in a better position than a panel of international court judges to assess the necessity of any restriction in their national context.110 It also reflects the fact that that ECHR operates as a supranational legal system, reliant on states parties’ agreeing and accepting to be bound by the Convention, and that this can require some element of flexibility on the part of the Court. The concept of the ‘margin of appreciation’ is well established in the case law of the ECtHR, and is clearly important for the practical functioning of the Convention. The margin of appreciation is relied on extensively in cases involving the regulation of freedom of religion and belief, with the result that very different treatment of religion and belief across Europe can remain within the bounds of Article 9. For example, in France, religious dress is banned across the public sector because it is ‘necessary’ in a democratic society, even though close by, in the UK, headscarves and turbans can be worn not only within most public-sector workplaces but even by police and the judiciary. It is the existence of the margin of appreciation that means that the French ban can be accepted as ‘necessary’, as the national context and history can be taken into account. In theory the flexibility is subject to European supervision, although, as discussed below, in religion cases a wide margin has been allowed to operate.111 Whilst this may reflect a lack of consensus across Europe about how religous rights should be treated, it nonetheless runs a risk of creating a great divergence in the level of protection provided to religious freedom across Europe. Moreover, a wide margin accorded to one state can have important spill-over effects in other states, as the weak standard of protection that is produced means that other states feel able to limit human rights in the area at hand, even if they did not do so before.112 While a degree of pluralism in levels of protection for religion may be acceptable in deference to the wide range of religious settlements and cultures in the different member states of the Council of Europe, care needs to be taken to ensure that that this pluralism does not lead the ECtHR to abstain from adequate scrutiny of restrictions on religious freedom, particularly in politically sensitive cases. The broad use of the margin of appreciation can be seen in a number of ECtHR cases involving religion and belief. In Sahin v Turkey,113 where a university student objected to the prohibition on religious dress being worn in the university, the ECtHR found that the ban was compatible with Article 9, but it emphasised in reaching this decision that ‘where questions concerning the relationship between State and religions are concerned, on which opinion in a democratic society may 110 Handyside v UK Series A no 24 (1981), 1 EHRR 737, at para 48. See D Tsarapatsanis, ‘The margin of appreciation doctrine: a low-level institutional view’ (2015) 35(4) LS 675. 111 C Evans, Freedom of Religion under the ECHR (Oxford, OUP, 2001) 143–44. 112 See M L P Loenen and L Vickers, ‘More is less? Multiple Protection of Human Rights in Europe and the Risks of Erosion of Human Rights Standards’ in S Morano-Foadi and L Vickers (eds), Fundamental Rights in the EU: A Matter for Two Courts (Oxford, Hart Publishing Ltd, 2015). 113 Sahin v Turkey App no 44774/98 (ECtHR, 10 November 2005).

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reasonably differ widely, the role of the national decision making body must be given special importance’.114 It thus left a wide margin of appreciation to the Turkish Government to decide whether it was necessary to prohibit the wearing of religious symbols in universities in the Turkish context.115 The broad approach taken by the Court is reflected in a number of later cases, such as those involving the French law banning all ostentatious religious symbols from the public school classroom,116 following which several complaints were brought to the ECtHR by Muslim girls and Sikh boys. Relying on the margin of appreciation, the Court declared the complaints ‘manifestly ill founded’ and thus inadmissible.117 A similarly broad margin was applied in the case of Lautsi v Italy,118 concerning a complaint against the display of the crucifix in Italian classrooms. At the first hearing by a Chamber of the ECtHR, the practice was found to violate the ECHR. However, in the second hearing before the Grand Chamber of the Court, this was unanimously overruled, with the Grand Chamber relying on a very wide margin of appreciation to states in holding that Italy was allowed to continue the practice in its state schools. Although these cases did not involve religious practices at work, later cases show that a similarly wide margin of appreciation applies in this context.119 In Eweida and others v UK,120 a Chamber of the Court maintained its deferential line, deciding the cases with reference to the margin of appreciation. The Court held that the refusal to accommodate the religion-based wishes of three employees was not incompatible with the ECHR, with the claim of only one employee succeeding. The use of the margin of appreciation in the case varies somewhat, illustrating its flexibility. In the case of Chaplin, a nurse who refused to remove her cross and chain whilst working, the margin was used to defer to the need for local decision 114

Ibid, para 109. Indeed, in her dissenting opinion, Judge Tulkens pointed out that the Court accepted the Turkish arguments at face value and did not assess whether they really applied in the Turkish context, saying ‘European supervision seems quite simply to be absent from the Judgment’ (Dissenting Opinion, para 3). See further K Altiparmak and O Karahanogullari, ‘After Sahin: the debate on headscarves is not over’, case note European Court of Human Rights, Leyla Sahin v Turkey, Grand Chamber Judgment of 10 November 2005, App no 44774/98 [2006] European Constitutional Law Review 268–92; T Lewis, ‘What not to wear: religious rights, the European Court, and the margin of appreciation’ [2007] ICLQ 395–; N Gibson, ‘An unwelcome trend: religious dress and human rights following Leyla Sahin vs. Turkey’ (2007) 25 Netherlands Quarterly of Human Rights 599. 116 Loi no 2004-228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics. 117 Muslim women’s complaints: Aktas v France App no 43563/08; Bayrak v France App no 14308/08; Gamaleddyn v France App no 18527/08; Ghazal v France App no 29134/08. On complaints by Sikh pupils: Javir Singh v France App no 25463/08; Ranjit Singh v France App no 27561/08. The cases were all decided on the same day (ECtHR, 30 June 2009). 118 Lautsi v Italy App no 30814/06 (ECtHR Grand Chamber, 18 March 2011). 119 For an overview of the divergent practices and debates on the acceptability of public school teachers, police officers and judges wearing headscarves or other religious attire in the UK, France and the Netherlands, see see H van Ooijen, Religious Symbols in Public Functions: Unveiling State Neutrality. A Comparative Analysis of Dutch, English and French Justifications for Limiting the Freedom of Public Officials to Display Religious Symbols (Antwerp, Intersentia, 2012). 120 Eweida and others v UK [2013] ECHR 37. 115

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making; the margin of appreciation reflected the fact that hospital managers on the ground are better placed to determine health and safety issues than international courts.121 In McFarlane and Ladele’s cases, involving disciplinary measures taken against the applicants for refusing to provide services to homosexual couples, the margin was afforded in deference to the state’s right to strike a balance between competing rights, in this case the employee’s right to religious freedom and the employer’s right to safeguard the rights of others to equality of treatment. The margin of appreciation is thus used to allow for local level decision making, as well as to allow states some discretion in setting wider government policy. These cases show that the use of the margin of appreciation means that very low level of review is undertaken by the courts. In Eweida, referring to the case of the third applicant Ms Ladele, the Court confirmed that ‘[i]n all the circumstances, the Court does not consider that the national authorities … exceeded the margin of appreciation available to them’.122 In effect, unless the boundaries of the margin are exceeded, interferences with religious freedom will be proportionate: the standard review in these cases seems to have veered towards a presumption that an interference with religious freedom will be proportionate (unless it exceeds the margin), rather than providing a sense of European supervision for human rights standards. A further example of the use of a wide margin of appreciation in Article 9 cases is the SAS v France,123 discussed above, involving the French ban, backed by a criminal sanction, of the full face veil. The Court noted that that a ban was inconsistent with international human right norms and European values, and that it was not necessary to uphold human dignity or gender equality, and that such a generalised ban on the veil in public would need careful justification. However, having noted the need for careful consideration of the proportionality given the broad nature of the legitimate aim of ‘living together’, it then relied on the margin of appreciation to decide that the ban was proportionate. The use of a broad margin of appreciation was justified by the Court in SAS on two bases. First, as with Ms Ladele’s claim in Eweida, states are best placed to determine domestic p olicy.124 Secondly, although from a normative standpoint France was very much in a minority in banning the veil (a matter that might on some views amount to there being a consensus against a ban),125 nonetheless, the fact that the issue is debated in Europe meant, according to the majority of the Court, that there was in fact a lack of consensus on the issue. Throughout the judgment the factors discussed seemed to lead inevitably to a conclusion that the ban would exceed the margin of appreciation. Yet the Court in the final stages of its judgment then concluded that the wide margin of appreciation meant that the ban was proportionate. The 121

Ibid, at para 99. Ibid, at para 106. 123 SAS v France App no 43835/11 (ECtHR, 1 July 2014). 124 Ibid, at para 154, ‘in matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight’. 125 This was noted in the Dissenting Judgment of Judges Nussberger and Jäderblom, at para 19. 122

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case perhaps illustrates the extremes to which the wide margin of appreciation can stretch: normatively France was in a minority in implementing the ban; it was not necessary for gender equality, dignity or security reasons; and the newly identified ‘flexible’ notion of ‘living together’ required careful examination of its necessity. Yet the ECtHR determined that the ban did not exceed the margin of appreciation. In Ebrahimian v France,126 a Chamber of the ECtHR again relied on a very wide margin of appreciation in holding that failure to renew the contract of a hospital social worker who had refused to stop wearing a head-covering at work was proportionate. Again the Court noted the lack of consensus across Europe on the issue, as well as relying heavily on the national context and the principle of secularism in France with regard to the state and the public service. The decisions in SAS v France and Ebrahimian v France both demonstrate the difficulties of over-reliance on the margin of appreciation, as it allows for an abdication by the Court of full supervision of human rights standards.127 The approach results in under-enforcement of Convention rights.128 However, a degree of discretion is likely to be necessary in any international human rights framework if states are to accept the international supervision of the human rights body, and it may be that in some contested areas such as religion, national courts are indeed best placed to determine the correct parameters of protection.129 Moreover, a more positive view of the SAS case can be seen when one takes into account the fact that it allowed for careful scrutiny of the facts, and for the rejection of a number of justifications that had been used in earlier cases for restricting religious dress, such as gender equality and dignity.

Application of Article 9(2) in the Workplace Having established how the ECtHR applies the concept of proportionality in general to the exercise of freedom of religion at work, it is finally necessary to apply that reasoning to a number of practical issues that can arise regarding the exercise of freedom of religion at work. These are: determining a person’s religion; the extent to which employers can be required to accommodate religious practice, such as days off for religious observance, compliance with religious dress requirements or refusal to participate in certain work tasks; and determining the scope of the rights of religious organisations to determine their own employment requirements. 126

Ebrahimian v France App no 64846/11 (ECtHR, 26 November 2015). See, eg, the dissent in both cases. See also E Brems, S.A.S v France as a problematic precedent, at ; M L P Loenen and L Vickers, ‘More is less? Multiple Protection of Human Rights in Europe and the Risks of Erosion of Human Rights Standards’ in S Morano-Foadi and L Vickers (eds) Fundamental Rights in the EU: A Matter for Two Courts (Oxford, Hart Publishing Ltd, 2015). 128 L Sager, ‘Fair measure: the legal status of underenforced constitutional norms’ (1978) 91 Harv L Rev 1212, cited in D Tsarapatsanis, ‘The margin of appreciation doctrine: a low-level institutional view’ (2015) 35(4) LS 675. 129 D Tsarapatsanis, ‘The margin of appreciation doctrine: a low-level institutional view’ (2015) 35(4) LS 675. 127

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Determining a Person’s Religion or Belief One question that is likely to arise is whether a particular set of beliefs can be classed as a ‘religion or belief ’. The Court and Commission on Human Rights have taken a fairly broad approach here, recognising as a ‘religion or belief ’ atheism,130 Druidism,131 Divine Light Zentrum,132 Scientology,133 Krishna Consciousness,134 pacifism135 and veganism.136 Apart from deciding whether a particular set of convictions is protected under Article 9, difficulties can arise where there is disagreement over what constitutes a genuine religious observance. The ECtHR has not always been consistent in its approach on this issue. In Metropolitan Church of Bessarabia v Moldova137 the ECtHR noted that it is not for the state to determine whether religious views are legitimate. However, in other cases the Court, while not questioning the validity of the religious views, has become involved in questioning the meaning of the religious person’s beliefs, in terms of whether conduct is a manifestation of religion or merely motivated by religion; it has also become involved in ascribing meaning to religiously motivated behaviour. For example in Sahin v Turkey,138 the Grand Chamber took the view that wearing a headscarf, as part of Muslim religious observance, is contrary to notions of sexual equality.139 However, as the dissenting judge pointed out,140 it is not the role of the Court to determine the meaning in general of wearing a headscarf, and it should be wary of doing so.141 The practice of the Court determining the religious significance of an activity can also be seen in the case of Lautsi v Italy,142 where the Court ruled that the crucifix was a ‘passive symbol’.143 However, in Eweida and others v UK,144 the Court avoided this difficulty, and did not rule on the religious significance of the applicants’ practices. Instead they accepted that the applicants’ requests (to wear a cross at work, and to be excused from providing services to same-sex couples) were religious in nature. Rather than determining whether the practices in question were religious or not, the Court instead resolved the cases with reference to proportionality. A second question that has arisen before the Court has not concerned the religious significance of an activity but rather whether the applicant actually holds 130

Angelini v Sweden (1988) 10 EHRR 123 (Eur Comm HR). Chappell v UK (1988) 10 EHRR 510 (Eur Comm HR); Pendragon v UK (1998) EHRR CD 179. 132 Swami Omkaramamda and the Divine Light Zentrum v Switzerland (1981) 25 DR 105. 133 X and the Church of Scientology v Sweden (1976) 16 DR 68. 134 ISKCON v UK (1994) 76A DR 90. 135 Arrowsmith v UK (1978) 3 EHRR 218. 136 H v UK (1993) 16 EHRR CD 44. 137 Metropolitan Church of Bessarabia v Moldova (2002) 35 EHRR 306, 335. 138 Sahin v Turkey App no 44774/98 (ECtHR, 10 November 2005). 139 Ibid, paras 115 and 116. 140 Dissenting Opinion of Judge Tulkens, ibid, at para 12. 141 See discussion at pp 199–200 for the approach to this question under the Employment Equality (Religion and Belief) Regulations 2003 (SI 2003/1660). 142 Lautsi v Italy App no 30814/06 (ECtHR, 18 March 2011). 143 Ibid, para 72. 144 Eweida and others v UK [2013] ECHR 37. 131

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the belief in question. The difficulties for the Court in determining what an applicant believes are illustrated by the facts of Kosteski v Former Yugoslav Republic of Macedonia.145 Here the applicant was disciplined for taking time off for the observance of a Muslim festival. The case was ruled inadmissible for various reasons,146 but of relevance here was the dispute over whether the applicant really was Muslim. The respondent state claimed that the applicant was not a M uslim, because he had taken Christian holidays in the past and showed no signs of belonging to the Muslim faith; he had a Christian name, had no knowledge of the Muslim faith and did not follow Muslim dietary rules. The applicant claimed that he took Christian holidays as businesses were closed on those days so he could not work; pointed out that he had not chosen his name, which was given at birth, after which time beliefs could change; and that to require a good level of knowledge of the rules of a religion before one’s religious rights were protected could cause difficulties for uneducated people. Moreover, he claimed that having to prove his faith in this way was an interference with his religious freedom. The Court held that in the context of requesting a benefit awarded on the basis of religion, it was not inappropriate for the employer to require the employee to substantiate his claim to hold a religious belief. Accommodation of Religious Practice The jurisprudence of the Convention suggests that it is acceptable to put a ‘cost’ on religious observance, although this will need to be proportionate. The acceptance in Eweida that restrictions on religion and belief can interfere with Article 9, means that employers can be expected to take reasonable and proportionate steps to accommodate religious practice within the workplace. However, although after Eweida employers may be required to accommodate some levels of religious observance, it is also acceptable for such observance to remain difficult for the employee: the rights under Article 9 as they apply to the workplace are not absolute, and it remains acceptable for full religious observance to carry a cost. Dress Codes The case law under the ECHR has dealt with dress code issues as matters both of freedom of expression and freedom of religion. In relation to freedom of expression, the approach has been to accept that the right is engaged,147 but to give little weight to the importance of dress codes as an aspect of freedom of expression when weighed against other rights. In Kara v UK,148 it was accepted that dress codes could involve an aspect of personal expression, but the Commission did not find it to be disproportionate to interfere with the right in order to protect the rights of the employer to present a particular image. In Stevens, 145

Kosteski v Former Yugoslav Republic of Macedonia [2006] ECHR 403. the fact that the religion did not require Muslims to abstain from working during the festival. On the question of whether it is for the Court to determine such issues, see discussion at pp 109–110 above. 147 Stevens v UK (1986) 46 DR 245. 148 Kara v UK App no 36528/97 (ECtHR, 22 October 1998). 146 Including

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e xpulsion from school in response to a uniform dispute did not breach the ECHR, in part because the student was not expressing an opinion or idea through his refusal to wear a school tie. The cases suggest that there is some sympathy towards dress codes as expressing identity, but that the rights involved are not strong and can be trumped by other rights. In relation to religion, it would seem that the interests are stronger; the wearing of a headscarf or a cross expresses a religious view, and it is more likely that the interference would be disproportionate. However, many of the cases that have been brought before the ECtHR on this point have not resulted in findings in favour of applicants seeking to uphold a right to wear religious symbols such as the headscarf or cross at work. However, in these cases, the rights of others have been strengthened by the particular context of the case; where the rights of others are weaker, employers may be expected to offer a degree of accommodation with regard to religious dress at work. The first cases involving religious dress codes at work involved the headscarves worn by Muslim women in the context of education. In these cases the Court allowed that restrictions can come within the margin of appreciation, particularly taking into account the educational context in which restrictions have been imposed. Thus in Dahlab teachers might have influence over young children;149 and in Sahin students might potentially put others under pressure to conform.150 In particular, in the latter case, it was the influence on others, together with the political implications of the wearing of the headscarf in the Turkish context, that seems to have been decisive. It should be noted, however, that in Sahin the Grand Chamber was of the opinion that the matter was one that was to be dealt with using the margin of appreciation. In effect, it recognised the strength of argument both in favour of and against the ban on headscarves, and the range of treatment given to the issue across Europe, where the issue is controversial and highly contested. The Grand Chamber took the view that where opinion in a democratic society can reasonably differ widely, especially on issues relating to the relationship between church and state, the issue is best left for local determination. Thus the outcome might not be the same if a case were brought in the context of other forms of employment, or in countries where the headscarf has only religious rather than political significance. Where those who see the headscarf-wearing employee are other colleagues, or adult members of the public, the ‘interests of others’ to be set against the interest of the employee in enjoying freedom to manifest religion are far less strong.151 More recent cases have seen a greater acceptance by the Court of the importance of dress codes as a form of religious expression, but no reduction in the extent to which the Court relies on the margin of appreciation in religion cases. 149

Dahlab v Switzerland [2001] ECHR 899 Sahin and Karaduman v Turkey App no 16278/90, (1993) 74 DR 93. This issue was also in play in R (On the application of Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15. 151 This issue is discussed in more detail in Ch 3. 150

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Eweida v UK152 involved two cases where restrictions were imposed on the wearing of a cross in a way that made it visible to others. Eweida was a member of the check-in staff for British Airways, who was refused permission to wear a cross over her uniform, as this was in breach of the airline’s uniform policy. The reason given by the employer for refusing her request to wear the cross was that the dress code was necessary ‘to communicate a certain image of the company and to promote recognition of its brand and staff ’.153 Chaplin was a nurse, who had worn a cross on a chain around her neck for many years, but who was asked to remove it after the uniform was changed, making the cross more visible and accessible. The reason given by the employer for requiring the removal of the cross was to maintain the health and safety of nurses and patients. The ECtHR accepted in both cases that the dress codes involved a restriction on religious freedom, and that therefore they could only be upheld if they were for a legitimate aim and proportionate, taking into account the margin of appreciation allowed to states. It found that in Eweida’s case, the restriction was not proportionate, as the employer’s interests in maintaining its corporate image was insufficient to outweigh Eweida’s interest in religious freedom. In particular the Court noted that the cross was discreet and could not have detracted from her professional appearance; that there was no evidence that the wearing of other items of religious clothing, such as turbans and hijabs, by other British Airways staff had any negative impact on their brand or image; and that the fact that the company amended the uniform code fairly quickly after the case arose showed that the prohibition had not been of crucial importance.154 In contrast, in Chaplin’s case, the ECtHR decided that the restriction was proportionate. In particular, the interests of the employer in protecting health and safety on a hospital ward was something that was of greater magnitude than applied in respect of Ms Eweida. The Court also noted that decisions about clinical safety were best taken a local level, rather than by an international court. Despite the move in Eweida to recognise the workplace as a potential site for the protection of religious symbols, in Ebrahimian v France155 a Chamber decision of the ECtHR again relied heavily on the margin of appreciation and returned to a more restrictive approach to the protection of religious expression at work through the wearing of religious symbols. The case concerned a hospital social worker who had refused to stop wearing a head-covering at work. As a result, her fixed-term contract with the hospital was not renewed. The Court held that Ebrahimian’s freedom of religion was not violated. As in earlier cases, the Court noted the lack of consensus across Europe on the issue. It also noted the national context in which the case arose, namely the principle of secularism in the French Constitution, and the secular nature of the state and the public service which was the employer in this case. In addition to the factors relied on in earlier case law 152

Eweida v UK [2013] ECHR 37. Ibid, at para 93. 154 Ibid, at para 94. 155 Ebrahimian v France App no 64846/11 (ECtHR, 26 November 2015). 153

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regarding headscarves, such as the fact that the headscarf may undermine the neutrality of the state and may put others under pressure to adopt particular religious practices, the Court also noted a concern that religious dress worn in the hospital context may make patients feel that they would not receive treatment on an impartial basis. Whether these factors should have been given such weight by the Court is open to question. For example, there is a big jump between revealing one’s religion and the assumption that treatment then cannot be guaranteed to be provided on an impartial basis. As the dissenting Judge De Gaetano points out, religious affiliation can be revealed by an official’s name as well as by the wearing of a headscarf.156 It was not clear whether the case involved the wearing of a full veil or a headscarf, and the precise nature of the religious symbol was not referred to by the Court. The reasoning was based on the fact that the employer was the state, and that the state in question has a clear commitment to neutrality of dress in the public sector: it can therefore be assumed that the same outcome would be reached whether the case involved a full veil or only a headscarf. The cases illustrate a continued reluctance on the part of the Court to impose common standards across member states regarding religious dress codes in the workplace, and a continued reliance on a very wide margin of appreciation. In comparison with the earlier case of Kara, the cases reflect recognition by the Court of the importance of dress codes as a form of religious expression, with the acceptance that Article 9 is engaged in these work-based cases. However, despite the suggestion in Eweida that strong reasons will be needed if restrictions are to be imposed on the wearing of religious symbols at work, it was only in Ms Eweida’s case that a restriction was said to be disproportionate. The other cases have all relied on a very wide margin of appreciation, and have allowed a significant degree of deference to local decision-makers in assessing proportionality. Moreover, in Ebrahimian v France, reliance was placed on prior cases developed in the education context, to extend the principle of neutrality to the broader public sector. Hours of Work In relation to time off work for religious observance, the ECtHR seems to recognise this as a manifestation of religion, but accepts that it may be accommodated by the employee’s taking unpaid time off. In Konttinen v Finland,157 the applicant sought to change his working hours to enable him to observe the Seventh Day Adventist Sabbath, which prohibits working from sunset on Friday. The Commission found that it was unreasonable to expect the employer to accommodate the rules of different denominations at work, and that it might impose an unfair burden on the employer and other employees. It found that the freedom of religion of Konttinen was adequately protected by his freedom to resign.

156 Dissenting Judgment of Judge De Gaetano. See also F Cranmer, ‘Niqabs, hijabs and hospitals: Ebrahimian v France’ in Law & Religion UK, 27 November 2015, available at . 157 Konttinen v Finland (1996) 87 DR 68.

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Refusal of Work Tasks Some manifestations of religion will take the form of refusing to undertake work tasks because to do so breaches a religious rule. Relatively simple examples of tasks from which staff may ask to be excused include selling alcohol or handling meat products. Such requests would be treated as requests to manifest religion, and would be considered under Article 9(2): an employer can refuse to accommodate such a request where it is proportionate to do so and for a legitimate aim. The question of opting out of work tasks came before the ECtHR in two of the cases heard with Eweida v UK. Both cases involved refusing to carry out work tasks for religious reasons, where those reasons would lead to discrimination against others on grounds of sexual orientation. Ladele, a marriage registrar, sought to be excused from carrying out civil partnership ceremonies on the basis of her religious beliefs; and McFarlane, a sex and relationships counsellor, refused on religious grounds to commit to providing psycho-sexual counselling to same-sex couples. In both cases the ECtHR found that the refusal to accommodate these requests did not infringe the right to freedom of religion and belief but was a proportionate means of achieving the aim of upholding the rights of others, namely, the right of the employer to pursue an equal opportunities policy and require its employees to act in a non-discriminatory manner; and the non-discrimination rights of same-sex couples. In both cases, the ECtHR referred to the wide margin of appreciation in reaching the conclusion that the restriction was proportionate. In assessing proportionality, it is likely that there will also be an onus on the employee not to undertake work that he or she is unable to perform in full on religious grounds. For example, an employee who works in a bar is unlikely to have had her religious freedom unlawfully infringed if she refuses to participate in selling alcohol: this is not because the right to enjoy religious freedom has no currency in employment, but because restricting her religious freedom is likely to be proportionate. This approach was confirmed in Eweida v UK, where the ECtHR acknowledged that McFarlane had voluntarily enrolled on the employer’s training programme in the knowledge that it operated an equal opportunities policy and that it would not be possible to filter clients on the ground of sexual orientation. The Court confirmed that McFarlane’s choice to enter employment in the knowledge of what duties it would entail was not determinative of the question of whether his religious freedom had been infringed; nonetheless, the Court did say that the choice was a matter to be weighed in the balance when assessing proportionality.158 Equally, in the case of Ladele, the requirements of the job changed while she was in post, as she had already been employed as a registrar of marriages before the introduction of civil partnership status. The Court noted that the job had changed during her employment, but again this was not determinative of the question of proportionality; the weight of the interest in non-discrimination on grounds of sexual orientation was such that it was nonetheless proportionate, given the margin of appreciation, to restrict Ladele’s religious freedom in this case. 158

Eweida v UK [2013] 37, at para 109.

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The Right of Religious Organisations to Determine their own Employment Requirements Statements from the ECtHR make clear the commitment under the Convention to the idea that the right to freedom of religion includes the right to manifest religion collectively with others. For example, ‘the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which article 9 affords’.159 Accordingly, it would seem clear that, under the Convention, groups of religious people should be entitled to form religious organisations, and as a natural corollary should be able to act as employers. This is particularly the case where the employment is of religious personnel. The ECtHR has been clear that it is not for the court to interfere with a religious group’s freedom to appoint its own leaders.160 A corollary of this freedom is that where a religious organisation is created, the court will uphold its rights to appoint leaders in accordance with its own rules. The refusal of an individual to comply with the teaching of a particular group can result in the individual’s exclusion from the group, without infringing the individual’s freedom of religion. An individual’s right to freedom of religion does not extend to the freedom to be a member of a religious organisation with whose tenets he does not agree. In the context of employment, this means that if an employee of a religious organisation does not comply with the teaching of the organisation, his rights to remain in the organisation will not be protected. For example, the dismissal of a minister of the established Church in Norway for revoking his oath of loyalty did not breach Article 9.161 Apart from the employment by religious bodies of priests or other ministers, the ECHR also provides support for religious ethos organisations, such as religious hospitals, to run their organisations along religious lines. The support given under the Convention for the freedom of religious employers to determine their employment requirements is illustrated by a number of cases. In Rommelfanger v FDR,162 a doctor who worked for a Roman Catholic hospital was dismissed for publicly disapproving of the Church’s attitude to abortion. He was unsuccessful in his complaint that the dismissal breached his freedom of expression, and the Commission was very clear that the employer was able to set requirements on staff that they comply with the employer’s religious ethos. Although Rommelfanger involved arguments based on freedom of speech, it would seem to suggest that religious organisations are granted extensive freedom to determine their activities within the Convention jurisprudence. 159 Hasan v Bulgaria App no 30985/96, (2002) 34 EHRR 55, para 62; see also Serif v Greece App no 38178/97, (2001) 31 EHRR 20. 160 ‘[I]n the Court’s view, punishing a person for merely acting as the religious leader of a group that willingly followed him can hardly be considered compatible with the demands of religious pluralism in a democratic society’: Serif v Greece App no 38178/97, (2001) 31 EHRR 20, para 51. See also Hasan v Bulgaria App no 30985/96, (2002) 34 EHRR 55. 161 Knudsen v Norway (1985) 42 DR 247. 162 Rommelfanger v FDR (1989) 62 DR 151.

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The approach in Rommelfanger is followed in later cases involving dismissal of those working for religious organisations. Again the cases were not brought under Article 9 ECHR but under Article 8, but the clear religious context of the employment makes them helpful in anticipating the likely approach of the ECtHR under Article 9. Two cases from Germany, Obst and Schüth,163 involved decisions by religious organisations to dismiss staff for failing to comply with religious teaching. In both cases the staff members in question had been involved in extra-marital relationships: in Schüth, a Catholic Church organist; and in Obst, the Director of European Public Relations for the Mormon Church. In what might at first appear to be contradictory decisions, the ECtHR upheld the claim of the Catholic organist but rejected the claim of the Morman PR Director. However, the reason for the difference in treatment of the two cases related to procedural questions about the extent to which rights to respect for private life had been considered by the decision-makers in each case. In Obst the domestic courts had taken into account all the relevant factors, such as the fact that Obst held a senior position and had been aware of the teaching on adultery when entering employment. Of particular importance was the fact that the domestic court had recognised the human rights at stake, and had undertaken a careful balancing exercise. In contrast, in its balancing exercise the domestic court in Schüth had focused primarily on the interests of the Church and the employer, and had not placed in the balance the full range of interests, in particular the right of Schüth to respect for his private and family life, under Article 8 ECHR. On this basis the dismissal was found to infringe the Convention. This somewhat procedural approach can also be seen in Fernández Martínez v Spain,164 which involved the decision not to renew the contract of employment of a priest who was married and had five children. The priest had been given dispensation to marry by the Vatican, and was employed in a school to teach Catholic religion and morals. The decision not to renew his contact followed the publication of an article in which his membership of the ‘Movement for Optional C elibacy’ was disclosed. In his original appeal against dismissal it was found that he had been discriminated against on grounds of his civil status and his m embership of the organisation, but this finding was then overturned on further appeal. At the ECtHR he argued, as had Obst and Schüth, that the dismissal interfered with Article 8 rights to respect for private and family life. Again, the ECtHR relied on procedural questions to find that the Spanish courts had reached a fair balance between interests of respect for private life, freedom of religion and freedom of association, and that therefore there had been no violation of Article 8. Although the ECtHR reached different outcomes in these cases, they confirm that decisions by a religious ethos employer to dismiss or discipline staff for failing to comply with religious codes of conduct or life-style requirements can be 163 Obst v Germany App no 425/03 (ECtHR, 23 September 2010); Schüth v Germany App no 1620/03 (ECtHR, 23 September 2010). 164 Fernández Martínez v Spain App no 56030/07 (ECtHR, 15 May 2012).

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justified, as long as all relevant factors are taken into account when undertaking the balancing exercise. These include the nature of the post, the interest in religious autonomy of the employer, and the interests of staff members in respect for private life and freedom of religion and expression. As long as the interests of the employee have been properly assessed in any particular case, the ECtHR has thus been willing to uphold the religious autonomy rights of religious organisations by requiring loyalty to their teaching. Harassment under the Convention One last way in which religious interests may be infringed in the workplace is by religious harassment. The question arises whether the experience of harassment, albeit unpleasant, can be understood to involve an infringement of a person’s freedom of religion. If so, the employer would need to take action to prevent it. If there is no interference with freedom of religion, the employer may still be under a duty to take action in order to meet employment equality obligations, but that duty will not be reinforced by the need to respect freedom of religion. The difficulty with viewing harassment as involving a breach of freedom of religion is that harassment does not prevent the religious person from believing, nor does it directly prevent the practice or manifestation of religion. The only situation where rules relating to harassment will directly infringe freedom of religion is where religious staff are prevented from proselytising at work in order to save others from religious offence. Here, preventing the ‘harasser’ from expressing her religious views may infringe her freedom to manifest her religion. Any link between harassment and freedom of religion is therefore not direct. Yet it would seem that an implicit link does exist. This is because it is unlikely that full religious freedom can be enjoyed by a person whose life is made miserable by constant harassment. The proposition that harassment may involve a degree of interference with freedom of religion was recognised, to a limited degree, in Otto Preminger Institute v Austria.165 Here the Court accepted that the state was entitled to seize a blasphemous film, and did not thereby infringe the film-maker’s freedom of expression, because the film was likely to cause offence to the religious feelings of a section of the public. In its decision, the Court makes clear that full enjoyment of the right to freedom of religion includes a right not to be unnecessarily offended: [T]he manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the State … Indeed, in extreme cases the effect of particular methods of opposing or denying religious beliefs can be such as to inhibit those who hold such beliefs from exercising their freedom to hold and express them.166

The Court suggests that the right to freedom of religion may include a right not to have one’s religious views needlessly offended. However, it is also clear that the right is not absolute in nature. The Court prefaced its comments with the view 165 166

Otto Preminger Institute v Austria Series A no 295A, (1995) 19 EHRR 34. Ibid, para 47.

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that ‘those who choose to exercise the freedom to manifest their religion … must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith’.167 It would seem, then, that the ECtHR accepts that the right to freedom of religion may be engaged in cases of serious religious harassment at work, if the harassment reaches a level that could be said to inhibit the freedom of religious staff to manifest their religion. Of course, the right is only protected where it is proportionate to do so, and it will need to be weighed against the competing right to freedom of speech and the rights of other workers. It may be that the ability of an employee to claim that Article 9 is breached will depend on whether she can also show a breach of Article 14, considered below.

Protection Against Religious Discrimination Under Article 14 Article 14 ECHR states: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Article 14 provides a right not to be discriminated against in the enjoyment of Convention rights on a number of grounds, including religion. It does not set out a free-standing right to non-discrimination but is dependent on breach of one of the Convention rights. In this respect it can be regarded as a ‘parasitic’ right. To some extent the jurisprudence relating to Article 14 has been limited as a result, because in many cases, although discrimination issues may arise, Article 14 is not considered by the ECtHR once it has found a breach of the substantive right. It is seen to be unnecessary to determine the Article 14 discrimination issue once the applicant has been found to have succeeded on one head of the claim. Yet despite this, Article 14 does retain some potential to protect the religious employee within the workplace. First, it seems that in some cases Article 14 can be used to expand the scope of the protection provided by the substantive article. In cases where there may be no breach of the individual substantive Convention right, a breach is found once the two articles are read together.168 Article 14 effectively places on states an obligation to provide full enjoyment of the Convention rights to all, regardless of status. For example, basic protection for freedom of religion may be provided to all and so, read on its own, a state may not be in breach of the Convention. However, if some religious groups are provided with superior protection then Article 14 is breached; those with lesser protection are discriminated against in their enjoyment of the right, even though they are not denied the right altogether. 167 168

Ibid. Belgian Linguistics v Belgium Series A No 6, (1979) 1 EHRR 252.

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The effect of this is that the range of behaviour that can be protected under the substantive article may be expanded, because it is not just refusal to protect the right that is prohibited: anything less than ‘full embodiment’ of the right may give rise to a claim if the reduction from full embodiment is on one of the prohibited grounds.169

Article 14 in the Employment Context The broader understanding of what may amount to an infringement of the substantive Convention rights, when read with Article 14 ECHR, may lead to a wider level of protection for religion in the employment context. First, it may help to show that the Convention should apply in the workplace. Although the Convention case law is divided on the question of whether adequate protection for religion is provided by a right to resign, if a claim is based on Article 14 the claim may well be strengthened. The Convention may not guarantee a job, but if, for example, those of the dominant religion enjoy unencumbered access to the job market, those of other religions should enjoy similar access. If they do not, this amounts to treating them less favourably in the enjoyment of their Article 9 rights. The broader understanding of what may amount to an interference with Convention rights, added by reference to Article 14, may also have an effect on the question of whether harassment involves an interference with freedom of religion, discussed above. Article 9 read with Article 14 allows for a finding that freedom has been infringed where there may be no direct interference but where the Convention right is given something less than full embodiment or enjoyment. As discussed above, being subjected to harassment for one’s religious beliefs may not prevent one from holding those beliefs but interferes to a lesser extent. Yet being subjected to harassment for one’s religious beliefs is not consistent with the full embodiment of religious freedom. In the employment context, Articles 8, 9 and 10 are the Convention articles most likely to be infringed, discriminatorily, on the ground of religion. In Sidabras v Lithuania,170 the Court considered the Article 8 right to respect for private life where the applicant was dismissed due to his former employment as a KGB officer. It took a very broad view of the substantive right, interpreting the ban on employment as an infringement of the applicant’s ‘private life’ on the basis that it affected Sidabras’s ability to develop relationships with the outside world, and could create serious difficulties in earning a living.171 It may be that this broad understanding of the scope of the right to respect for private life was reached because the case was heard in the context of a claim that the interference was discriminatory.

169 ‘The word “enjoyment”, within the meaning of Article 14, must cover all situations that may arise between, at the one extreme, plain refusal of a right protected by the Convention and, at the other, full embodiment of that right in the domestic system’: Airey v Ireland Series A no 32, [1979] 2 EHRR 305. 170 Sidabras and Dziautas v Lithuania App nos 55480/00 & 59330/00 (ECtHR, 27 July 2004). 171 Ibid, paras 47 and 48.

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An example of the use of Article 14 in conjunction with Article 9 can be found in Thlimmenos v Greece,172 where Thlimmenos was refused registration as a chartered accountant because of his criminal conviction. The conviction was the result of his religiously motivated refusal to participate in military service, a criminal offence in Greece. The ECtHR found that refusal to register Thlimmenos as an accountant amounted to discriminatory treatment on the ground of religion. The Court implied that taken under Article 9 alone, the case might not have succeeded, on the ground that there is no right to a job under the Convention; but read in conjunction with Article 14, it was clear that the treatment was discriminatory. Thlimmenos’s exercise of his freedom of religion led to a criminal conviction, which affected his ability to work in his chosen profession. The exercise of freedom of religion by other citizens did not result in criminal convictions, and so did not affect their ability to work as they wished. To this extent, then, Thlimmenos suffered discrimination. The Court in Thlimmenos developed a broad understanding of the concept of discrimination and equality, recognising for the first time in ECtHR jurisprudence that equal treatment extends beyond treating likes alike, to include treating those who are different differently. Thlimmenos was different from other job applicants with a criminal conviction, as his conviction was the result of religious observance. Non-discrimination required that he be treated differently, by ignoring his conviction for the purposes of registration as an accountant. This expanded idea of what is required for equal treatment in the enjoyment of religious freedom may have an effect on the understanding of the scope of an employer’s duty to accommodate religion within the workplace. Although Thlimmenos provides a more comprehensive understanding of discrimination, the case law of Article 14 ECHR is clear that discrimination does not arise in every case of different treatment or inappropriate similar treatment. One of the four applicants in Eweida and Others v UK,173 Ms Ladele, complained under Article 9 in conjunction with Article 14, rather than under Article 9 alone. She claimed that the act for which she was disciplined (refusal to be designated a civil partnership registrar) was a manifestation of religion, and that she had been treated differently from those staff who did not have a conscientious objection to registering civil partnerships. On this basis, she claimed that the employer had discriminated against her. The Court accepted that Ms Ladele’s claim did fall within the remit of Article 14 taken in conjunction with Article 9, but then went on to consider the question of whether the conduct of the employer could be justified as a proportionate means of achieving a legitimate aim. It held that it could: in bringing disciplinary proceedings against Ms Ladele, in order to provide a nondiscriminatory service to its service users, the local authority employer had not exceeded its margin of appreciation.

172 173

Thlimmenos v Greece (2001) 31 EHRR 15. Eweida and Others v UK [2013] ECHR 37.

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Thus, although after Thlimmenos Article 14 may provide a somewhat broader basis for a claim, the outcome of cases will still turn on the presence of other factors that will determine whether there has been discrimination, such as the presence of a legitimate aim for the treatment in question and its proportionality. These factors will include the nature of the religious conduct and the nature of the employer, as discussed above in relation to Article 9. As with Article 9, under Article 14 the ECtHR allows states a wide margin of appreciation in assessing the proportionality of any justification. Article 14 may not therefore add very much to the substantive protection in this regard. What Article 14 does add, however, is a broadening of the scope of protection, by allowing a claim to arise even where there is no breach of a substantive Convention right. It also adds to the protection of religion at work by creating an avenue whereby an applicant can make a claim based on the fact that he does not fully enjoy the right to freedom of religion, even though there is not a total interference with the right.

Conclusion: Protection under the Convention The ECtHR case law on freedom of religion recognises in general terms its fundamental importance as a reflection of individual autonomy and as necessary for the pluralism of the modern world. It also provides strong recognition of the right to freedom of religion as a right that can be enjoyed communally. Yet in many respects the jurisprudence does not suggest that religious freedom should enjoy strong protection at work. The right to freedom of religion has to be balanced against the rights of others, and the proportionality of any restriction must be assessed, any assessment always being undertaken in the context of the very broad margin of appreciation that applies in religion and belief cases. The lack of consensus at European level, and the consequent use of the ‘margin of appreciation’, means that the ECtHR is weak in setting standards for the protection of religious rights, particularly in contexts such as the workplace, where the restrictions on religion are not absolute in nature. In the domestic context, using the HRA 1998, courts are not, however, bound to follow the restrictive interpretations of the ECtHR.174 There is thus more potential to develop more progressive protection for religious interests, in particular because the reliance by the ECtHR on the margin of appreciation is inappropriate in the domestic setting. In addition, in the domestic setting the law will need to be interpreted in the light of the second European framework governing religion and belief in the workplace, EU Directive 2000/78, considered below.

174 HRA 1998, s 2. Domestic courts can provide greater protection than that available under the ECHR, but cannot provide less.

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II. The EU Framework: EU Directive 2000/78 The way in which the Equality Directive 2000/78 applies in the work context is much more straightforward than Article 9 ECHR, as the Directive was designed to operate in the workplace. It protects against discrimination in employment on grounds of religion and belief, and covers direct and indirect discrimination, harassment, victimisation and instructions to discriminate. Although states were required to implement the religion and belief provisions of the Directive by the end of 2003, thus far cases have not been heard in the Court of Justice of the European Union (CJEU) on the religion and belief ground, although two cases have been referred.175 This means that there is no well-established case law to draw on to assess the effectiveness of the Directive in protecting equality on grounds of religion and belief in EU law. Instead, in this section the provisions of the Directive are considered, with illustrations of the issues raised drawn from a number of individual EU states.176 What will be seen is that practice regarding the protection of equality on grounds of religion and belief is varied across the EU, and a number of states have introduced exceptions to the protection provided in the Directive. What is not yet clear is the extent to which the Directive will standardise practice. The variance in state practice is perhaps not surprising given the very different historical contexts into which the religious non-discrimination principle has been introduced. For example, religion plays very different roles within the democratic orders that are represented in the member states of the EU. Although many states have constitutional obligations to protect religious freedom, these operate alongside commitments to the Christian church. To take just a few examples of the many ties between religion and state across the EU: Denmark has an established church; the Irish Constitution makes express reference to being founded on Christianity;177 Finland levies church taxes and legislation provides autonomy to the Lutheran church; and Spain and Italy have strong ties with the Catholic church, regulated by concordats with the Holy See. Moreover, the role of religious bodies in the provision of services to the public varies across the EU. In Germany, religious bodies have long been established in the provision of public services such as healthcare, and in the UK state-funded faith schooling is common. In contrast, 175 However, two cases have been referred to the CJEU. The Opinion of AG Kokott has been delivered in one of the cases: Achbita & Anor v G4S Secure Solutions NV [2016] CJEU C-157/15. Opinion delivered 31 May 2016. See M Rubenstein, ‘Recent and Current Employment Discrimination Cases in the Court of Justice of the European Union’ (2015) 15 Equal Rights Review 57, available at . 176 For more detail on the implementation of the Directive in the EU, see L Vickers, Religion and Belief in Employment—The EU Law (Brussels, European Commission, 2007). 177 The Preamble to the Irish Constitution states, ‘In the name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred, We, the people of Eire, Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial, … Do hereby adopt, enact, and give to ourselves this Constitution.’

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in France there is a long tradition of laïcité or secularism in the Constitution, and this extends to the provision of services in the public sector. A question that arises from these varied relationships between the church and state in the EU is whether these distinct constitutional arrangements should allow for a variation in the interpretation and application of the Directive; or whether instead the Directive should have a unifying effect on the treatment of religion and belief across the EU, just as it has had on the treatment of gender, race and age. This will be discussed below in the context of the interaction of the ECHR and the EU law, and the discussion of the role of a margin of appreciation or margin of discretion allowed in the interpretation of the laws protecting religion and belief.

Directive 2000/78178 Under the Employment Equality Directive, protection against religious discrimination is part of a single approach to equality. The Directive was introduced under the general non-discrimination provisions of Article 13 of the EC Treaty.179 This provides authority for the EU to legislate on a number of grounds, religion forming part of a longer list. The list displays no hierarchy. Indeed, the early decisions of the European Court of Justice (ECJ) interpreting legislation introduced under a different ground reinforce the idea of a common understanding of equality and the need for common standards to be introduced across the different grounds of equality.180 The Directive prohibits direct discrimination, which is defined as less favourable treatment on grounds of religion or belief. Direct discrimination is not limited to less favourable treatment on the grounds of a victim’s own religion or belief. It would therefore cover treatment based on a person’s association with people of a particular religion (for example, discrimination against someone married to a member of a religious group). The definition of direct discrimination does not provide any general exceptions or justifications,181 but some specific exceptions 178 References are made in this section to the law and practice of member states. Details have been drawn from the Country Reports produced by the European Network of Legal Experts in the nondiscrimination field. The network is established and managed by the Human European Consultancy, Netherlands and the Migration Policy Group, Belgium. Reports can be found at . This chapter was written before the decision of the UK in June 2016 to leave the EU. At the time of writing, the impact of this decision and its effect on this area of law is uncertain. 179 Note that in Case C-144/04 Mangold v Helm [2005] ECR I-9981, the ECJ held that non- discrimination was a principle of Community law, and that the Directive merely laid down a framework to combat discrimination. L Waddington, ‘Recent Developments and the Non-Discrimination Directives: Mangold and More’ (2006) 13 Maastricht Journal of European and Comparative Law 365. 180 Case C-13/05 Chacón Navas v Eurest Colectividades SA [2006] IRLR 706 at para 40. However, see Achbita & Anor v G4S Secure Solutions NV [2016] CJEU C-157/15, where AG Kokott suggests grounds for treating religion and belief differently from other protected grounds (at [45] and [116]). See also Ch 5 below. 181 In relation to sex discrimination, the ECJ, in Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus [1990] ECR I-3941, confirmed that direct discrimination cannot be justified.

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exist. First, under the Directive, where a measure is ‘necessary for public security, for maintenance of public order … and for the protection of the rights and freedoms of others’, a general exception to the non-discrimination principle can be made.182 Secondly, an exception exists where, because of the particular occupational activities or the context in which they are carried out, a religious characteristic is a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.183 Thirdly, a slightly wider exception exists where the employer is a church or an organisation the ethos of which is based on religion or belief. Under this exception, religious foundations, such as hospitals run with a religious ethos, can require that members of staff are loyal to that ethos. This is the case even though sharing a religious belief may not be an essential requirement for carrying out the core duties of the job. For example, a religious hospital might require all doctors and nurses to share a particular religion, even though religious belief is not an essential requirement for carrying out medical duties. The Directive is explicit that any religious requirement imposed by a religious ethos organisation must not entail discrimination on any other ground.184 The Directive also prohibits indirect discrimination, ‘where an apparently neutral provision, criterion or practice would put persons of a particular religion or belief … at a particular disadvantage compared with other persons’, unless it can be justified.185 Indirect discrimination is capable of justification where the practice or criterion can be objectively justified by a legitimate aim, and the means of achieving the aim are appropriate and necessary.186 The question of justification is left to domestic courts, and it is not clear what types of factor, such as cost or business needs, will be accepted as constituting justification. For example, in Denmark187 and France,188 employers have been able to justify clothing guidelines in order to create a religiously neutral workplace. It is unclear whether such restrictions would be justified under the Directive. On the one hand, one might expect to see a uniform standard of justification adopted across all strands of discrimination law in the EU; and so, given that it would be unlikely that such business-related reasoning would be readily acceptable in relation to sex discrimination,189 it might be assumed that restrictions on dress would not be easily accepted in relation to religion either. On the other hand, 182

Directive 2000/78, Art 2(5). Directive 2000/78, Art 4(1). 184 Directive 2000/78, Art 4(2). Any requirement as to religion or belief must constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. Note that, unlike for the general exception in Art 4(1), the requirement does not have to be ‘determining’. 185 Directive 2000/78, Art 2(2). 186 Directive 2000/78, Art 2(2)(b). 187 Decision 21 January 2005, 22/2004. 188 See the Baby Loup case, Cour de cassation Assemblée Plénière, 25 June 2014 (2014) Recueil Dalloz, 1386. See M Hunter-Henin, ‘Living Together in an Age of Religious Diversity: Lessons from Baby Loup and SAS’ (2015) 4(1) Oxford Journal of Law and Religion 94. 189 Bilka-Kaufhaus v Weber von Hartz [1986] ECR 1607. 183

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in the context of the ECHR, as seen above, significant leeway is given to domestic courts, and national practice is relevant in determining whether restrictions are proportionate. Case law is still awaited from the CJEU to determine the level of justification that may be required in indirect religious discrimination claims. The Directive also prohibits harassment, defined as unwanted conduct related to religion and belief with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment.190 Victimisation is also prohibited.191

Definition of ‘Religion’ The Directive does not define the term ‘religion or belief ’, and most member states have also declined to define the term in their implementing legislation. In the absence of any definition in the Directive, the CJEU may be expected to draw significantly on the ECtHR jurisprudence in its interpretation of the term. However, it is also worth noting the variety of state practice in this regard around the EU. Some states define religion and belief for specific purposes, such as constitutional protections and tax exemptions. Thus the Netherlands makes a distinction in its case law between religion and belief, on the basis that for religion a ‘high a uthority’ (God) is central. Thus Rastafarianism has been classified as a religion,192 but not Bhagwan Shree Rajneesh philosophy, which is instead a ‘philosophy of life’.193 In German constitutional law religion is understood to mean any specific certainty as regards the whole of the world and the origin and purpose of mankind, which gives sense to human life and the world, and which transcends the world.194 The Federal Constitutional Court has also accepted some groups as self-evidently religious, such as the Bahá’í, relying on current trends in society, cultural tradition and the understanding of religion in general and in religious science.195 In the law transposing the European Directive, approved in August 2006, protection extends to religion and other consciously held beliefs, but these terms are not further defined. The Directive protects belief as well as religion, and this may help overcome some issues of definition, including the question of whether atheism is included.196 However, it may just shift the location of any debate to the divide between religions and beliefs that are of sufficient seriousness to warrant protection, and those beliefs which are not, as beliefs are only likely to be protected if, in the words of the ECtHR, they ‘attain a certain level of cogency, seriousness, cohesion and 190

Directive 2000/78, Art 2(3). Directive 2000/78, Art 11. Equal Treatment Commission Opinion 2005–162. 193 Equal Treatment Commission Opinion 2005–67. 194 Definition from the Federal German Constitutional Court: BVerwGE (Decisions of the Federal Administrative Court) 90, 112 (115). 195 BVerfGE 83, 341 (353). 196 Atheism is included in the protection afforded by the ECHR: Angelini v Sweden (1988) 10 EHRR 123 (Eur Comm HR). 191 192

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importance’.197 Such restrictions are reflected in some implementing legislation in Member States. Thus, for example, in Austria the explanatory notes to the implementing legislation state that the term ‘belief ’ is tightly connected with the term ‘religion’ … Belief is a system of interpretation consisting of personal convictions concerning the basic structure, modality and functions of the world; it is not a scientific system. As far as beliefs claim completeness, they include perceptions of humanity, views of life, and morals.198

In the Netherlands the term ‘philosophy of life’ (levensovertuiging) is used in place of ‘belief ’ (overtuiging), in order to place limitations on the type of belief that can be covered. The term ‘philosophy of life’ requires a coherent set of ideas about fundamental aspects of human existence. It includes broad philosophies, such as humanism, but does not extend to more general views about society. Political opinion does not seem to be covered by the Directive itself, but variations in practice and expectation can be found as regards the protection of political beliefs across the EU.199 The differences in treatment are likely to give rise to several difficulties, not least inconsistency as between member states.200 Moreover, at times it may be difficult to determine the borders between beliefs and political beliefs, as well as between religions and political beliefs. Some political beliefs, such as Communism, might be capable of meeting the criteria for philosophies of life; others may be more clearly political, such as views on taxation. Beliefs on matters such as abortion could be classified as religious or political, or just as general ‘beliefs’.

Determining an Individual’s Religion or Belief The Directive is drafted in general terms, and does not provide guidance on how to determine a person’s religion; neither does it deal with questions such as whether there can be discrimination within one religious tradition. However, although not expressly addressed, it is likely that interpretation will accord with the case law of the ECtHR, which recognises that the state does not have the power to assess the legitimacy of individual religious beliefs,201 and requires states to ensure that

197

X, Y and Z v UK (1982) 31 DR 50, and Campbell and Cosans v UK (1982) 4 EHRR 293. notes of the amended Equal Treatment Act, Country Report, Austria, European Equality Network 2014. 199 Protection for political opinion can be found in a number of states, including France, Italy, the Netherlands, Poland and the UK (Northern Ireland only); other states, including Germany and the rest of the UK, do not offer such protection. For other states, see European Equality Law Network at . 200 eg, recognition of scientology as a religion is not consistent across the EU. It is recognised in Italy (Country Report Italy, European Equality Network 2014) but not in Germany (Federal Labour Court, Bundesarbeitsgericht 22 March 1995, Neue Juristische Wochenschrift 1996, 143, Country Report Germany, European Equality Law Network, 2014). 201 However, see Kosteski v The Former Yugoslav Republic of Macedonia [2006] ECHR 403, where the ECtHR accepted that investigations as to whether an employee in fact held a particular belief were not inappropriate in the context of an employment dispute. 198 Explanatory

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conflicting groups tolerate each other, even where they originated in the same group.202 Thus the fact that some groups identify themselves as being separate from others within the same religion should be recognised within the Directive. This approach is taken in the Netherlands, where case law from the Equal Treatment Commission suggests that individuals can still be counted as holding a religion or belief, even though they dissent from a majority religious view.203

Potentially Indirectly Discriminatory Requirements Dress Codes If restrictions on the wearing of religious symbols at work are directed at a specific religion only then they may amount to direct discrimination, and the referral to the CJEU from Belgium204 involved the question whether a prohibition on wearing the headscarf could amount to direct discrimination. However, if the rule is applied to all, it would seem unlikely that a ban would be directly discriminatory, as the less favourable treatment will not be on the ground of religion but on the ground of refusing to comply with a dress code.205 However, requirements not to wear head coverings, to be clean-shaven, for women not to wear trousers and other such uniform rules may potentially be indirectly discriminatory if they put employees from some religious groups at a disadvantage compared to others. Where this is the case, any such rules will need to be justified as a proportionate means to achieve a legitimate aim. The practice of allowing restrictions on what can be worn at work varies significantly between member states.206 Headscarves and turbans are routinely worn in the UK in the public and private sector, as well as in the police and judiciary.207 In contrast, in other states restrictions are more widely imposed. In the Netherlands, most public servants are allowed to express their religion in dress or other attire, although specific categories of public officials, such as judges or police officers, are not allowed to do so.208 In Germany,209 restrictions on religious symbols such as the headscarf are more widely imposed than in the UK, although they have not always been found to be proportionate. The Federal Labour Court has held that

202

Metropolitan Church of Bessarabia v Moldova App no 45701/99 (ECtHR, 13 December 2001). Opinion 2004/148, 2004/129. 204 Belgian Court of cassation decision of 9 March 2015. See M Rubenstein, ‘Recent and Current Employment Discrimination Cases in the Court of Justice of the European Union’ (2015) 15 Equal Rights Review 57, available at . 205 This is confirmed in the Opinion of AG Kokott in Achbita & Anor v G4S Secure Solutions NV [2016] CJEU C-157/15. Opinion delivered 31 May 2016. 206 For a general discussion of the law relating to the wearing of religious symbols at work in a number of EU states, see H van Ooijen, Religious Symbols in Public Functions: Unveiling State Neutrality. A Comparative Analysis of Dutch, English and French Justifications for Limiting the Freedom of Public Officials to Display Religious Symbols (Antwerp, Intersentia, 2012). 207 See discussion in Ch 5. 208 See R Holtmaat, Report on measures to combat discrimination Directives 2000/43/EC and 2000/78/EC, Country report 2013, Netherlands (2014), available at . 209 For more detail see M Mahlmann, Report on measures to combat discrimination Directives 2000/43/EC and 2000/78/EC, Country report 2013, Germany (2014), available at . 203

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dismissal of a salesperson based on her wearing of a headscarf was invalid,210 and the Federal Constitutional Court has held that a school teacher must not be denied employment on grounds of wearing a headscarf.211 However, these decisions were fact specific and did not suggest that wearing of headscarves should generally be allowed. The German case law has suggested that proper procedural processes are necessary to impose a ban on religious clothing, but that where this has been done, such a ban has not necessarily infringed religious freedom. This has led to the introduction of new laws prohibiting the display of religious symbols in several German Länder.212 This limited level of protection for those who wish to wear religious symbols can also be seen in the 2014 decision of the Federal Labour Court in a case where a nurse wished to wear a headscarf at her work in a Christian hospital. Here the Court decided that the duty of neutrality could justify the prohibition of the headscarf during working times.213 In particular, the Court took account of the religious ethos of the hospital in reaching its decision. In its most recent decision,214 however, the German Federal Constitutional Court has been stronger in protecting the religious freedom of workers when it comes to wearing religious symbols. Whilst it confirmed that restrictions on headscarves can be imposed where there is a legitimate aim, it was stricter in its approach to justification and proportionality. The case involved a school social worker and teacher who wished to wear the headscarf but had been barred from doing so on the ground of the religious neutrality of the state. The Federal Constitutional Court held that the restrictions were not justified as they were disproportionate on their facts. There was no concrete danger of conflict in the particular case, as the symbols were not accompanied by any proselytising. Moreover, the Court noted that the symbol did not violate the neutrality of the state, as the symbolism was attributed to the person wearing the symbol rather than to the state. In France215 there has been extensive debate on dress codes and religion, particularly relating to the headscarf. In general, the principle of neutrality applies in the public sector, so that religious symbols are banned in public-sector employment.216 The scope of protection in the private sphere also came under 210

Federal Labour Court 10 October 2002, 2 AZR 472/01. Bundesverfassungsgericht, 24 September 2003, Ludin, 2BvR 1436/02. 212 eg Baden-Württemberg, Bavaria and Hesse. See I Chopin and C Germaine-Sahl, Developing Anti-Discrimination Law in Europe, Report of the European Network of Legal Experts in the Nondiscrimination Field October (2013) at 17, available at . 213 The Federal Labour Court (Bundesarbeitsgericht), on 24 September 2014 (case no 5 AZR 611/12). 214 German Federal Constitutional Court—1 BvR 471/10, 27 January 2015. 215 See further S Latraverse, Report on measures to combat discrimination Directives 2000/43/EC and 2000/78/EC, Country report 2013, European Equality Network 2013 (2014). 216 This neutrality requirement includes private law employees working for a company entrusted with a mission of public service. See Conseil d’Etat, 28 June 1963, Narcy, Grands arrêts de la jurisprudence administrative 293 and Conseil d’Etat, 22 February 2007, APREI (association du personnel relevant des établissements pour inadaptés), Grands arrêts de la jurisprudence administrative 294. 211

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scrutiny in the Baby Loup case, where a ban on the headscarf was upheld in a private workplace (a nursery).217 The Baby Loup case is complex and involved a conflict between different jurisdictions, including two decisions of the highest court, the Cour de cassation, in which very divergent reasoning was used. At the first hearing, the principle of laïcité was applied because, according to the Labour Court, the nursery offered a service of public interest. This basis for the decision was then rejected by the Court of Appeal of Versailles, which based its reasoning instead on the argument that religious neutrality was required in the interests of the children and on the basis of the nursery’s mission of offering care to young children. A further review by the Cour de cassation Social Chamber quashed the decision to ban the headscarf, finding that the duty of neutrality could not be extended on the basis of a public interest mission defined by offering care to young children. The case was then remanded to the Court of Appeal of Paris, which found that the restrictions on the employee’s rights were justified by the secular ethos of the nursery.218 In a final review, the Cour de cassation Plenary Chamber concluded that the ban was lawful, but provided yet another legal basis for this finding, basing its decision on France’s Labour Code,219 which allows for reasonable restrictions on an employee’s freedom of religion, provided that they are proportionate and justified by the nature of the employment (a different provision from that protecting against discrimination). Thus, although the eventual decision that the nanny did not have the right to wear the headscarf in the private nursery might at first sight be taken to suggest that the principle of laïcité extends to the private sector, in fact the Cour de cassation was clear that this principle did not apply beyond the public sector. Instead, the decision was based on the view of the Court that, in the fact-specific situation of this particular nursery, the restriction on the headscarf was a legitimate restriction on religious freedom under the provisions of the Labour Code. Thus, although the ban was upheld in the final decision, the Court confirmed that laïcité was not to be extended beyond the public service. It thus seems not to provide a clear precedent on how the French courts would decide a case brought under the Directive, as the requirements of the Directive were not directly addressed by the Court. Indeed, it is unclear whether the French approach would meet the requirements for justification included within the Directive, although this may of course depend upon the standard of justification required. Thus far, no cases on justification of indirect religion and belief discrimination have been heard by the CJEU, and it is not clear as yet what approach will be taken in such cases to the issue of the proportionality of any restrictions on religious

217 Cour de cassation Assemblée Plénière 25 June 2014 (2014) Recueil Dalloz, 1386. See M HunterHenin Living Together in an Age of Religious Diversity: Lessons from Baby Loup and SAS’ (2015) 4(1) Oxford Journal of Law and Religion 94. 218 This is despite the fact that France has not transposed Art 4(2) of Directive 2000/78, see below. 219 Arts L. 1121-1 and L. 1321-3.

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dress.220 On the one hand it can be assumed that proportionality requires that any ban be objectively justified, and that the means used to achieve the legitimate aim be both appropriate and necessary.221 This in turn requires that any action taken is no more than is necessary to achieve the legitimate aim. On this basis, a ban may not meet the standard of proportionality required if it is too broad in its scope. For example, a ban on religious dress among public sector administrative staff who do not meet the public may be unnecessarily restrictive of religious freedom, even though it may serve the legitimate aim of neutrality for the employer (or laïcité in the case of the French public sector). This is particularly so, given the fact that the effects of any restriction are felt unequally as between religions. On the other hand, courts may consider ECHR norms when determining proportionality, in which restrictions on dress codes have been relatively easily justified, in part by reliance on the margin of appreciation. If the lead of the ECtHR is followed in this way, then such bans may continue to be upheld, given how common they are around Europe. This is particularly likely if employers are able to identify clear legitimate aims for such requirements, based on protecting the rights of others, including a right of the employer to create a religiously neutral workplace.222 An alternative way to address religious symbols may be to use the genuine occupational requirement exception, discussed below. A case referred to the CJEU by France relates to the genuine occupational requirement, questioning whether a rule of religious neutrality forbidding the wearing of the Islamic veil can qualify as a determining occupational requirement in a commercial context.223 If the answer is affirmative, this will provide an alternative way to address the question of religious dress codes in employment and occupation. However, even if approached as a genuine occupational requirement rather than as a matter of indirect discrimination, the question of proportionality will remain pivotal, as such occupational requirements must also be justified as proportionate means to achieve a legitimate aim. This will mean that questions regarding the approach of the CJEU to proportionality in the context of dress codes will still apply. Working Time Working time requirements may result in indirect discrimination against staff with religious objections to working on particular days. Although the Working Time Directive224 does not make provision for a particular day off for 220 However the issue of proportionality was discussed in the Opinion of AG Kokott in Achbita & Anor v G4S Secure Solutions NV [2016] CJEU C-157/15. Opinion delivered 31 May 2016. AG Kokott. 221 A Baker, ‘Proportionality and Employment Discrimination in the UK’ (2008) 37(4) ILJ 305. 222 In her opinion in Achbita & Anor v G4S Secure Solutions NV [2016] CJEU C-157/15, AG Kokott suggests that issues of national identity should be taken into account in assessing proportionality, and that the CJEU should allow a measure of discretion to national courts, at [99]. She also accepts that protection of the right to create a religiously neutral image can be a legitimate aim, at [93-94]. 223 Court of cassation referral to the CJEU of 9 April 2015 (n°13-19855) 13 April 2015. See M Rubenstein, ‘Recent and Current Employment Discrimination Cases in the Court of Justice of the European Union’ (2015) 15 Equal Rights Review 57, at . 224 Directive 2000/34 amended the original Working Time Directive (93/104/EC) to remove the requirement that the minimum rest requirement should in principle include Sunday. The original

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staff, many states in Europe provide that the 24 hours’ uninterrupted rest should, in principle, be taken on a Sunday.225 Under the Employment Equality Directive 2000/78, requirements to work on particular days may be indirectly discriminatory if they cause particular difficulty for religious staff. However, such requirements may be justified.226 It could be argued that if Sunday is recognised legally as a general day of rest, other religious individuals should be given days off for religious observance. However, it is also arguable that the giving of Sunday as a day off is now as much a cultural or social practice as a religious practice, even if its origin was religious. Although the practice may disadvantage non-Christians, it may be that the desire to provide time off in accordance with cultural or social practices may give grounds for justification of any different treatment of different religious groups. However, any justification must be proportionate, and where it is easy to accommodate requests to change working hours, for example where shift swaps can be made without detriment to others, it may not be proportionate to refuse a request for time off for religious observance. In addition to the use of indirect discrimination law principles to deal with requests for time off for religious observance, some countries have separate legislation that addresses the issue in the public service. For example, in France, ministerial instructions227 allow the authorisation of requests for religious holidays not foreseen by the French legal holiday calendar. In Spain, special rules allow different times off for Seventh Day Adventists and Jewish communities, where this is agreed by all the parties before employment starts; and special rules also apply to some Islamic communities, allowing for time off on Friday afternoons and during Ramadan as long as time not worked is made up.228

Genuine Occupational Requirements and Religious Ethos Employers The Directive contains an exception in Article 4(1), where, because of the particular occupational activities or the context in which they are carried out, a religious characteristic is a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. A slightly wider exception exists in Article 4(2), where the employer is a church or an organisation the ethos of which is based on religion or belief. Under this exception, religious foundations such as hospitals run with a religious ethos can require that Working Time Directive was introduced as a measure to protect health and safety, and on the challenge by the UK Government the ECJ held that the special protection for Sunday working could not be shown to be necessary on health and safety grounds: UK v Council (Working Time Directive) [1996] Case C-84/94. 225 See the Report on the Implementation of Council Directive 93/104/EC, 1 December 2000, COM (2000) 787. 226 See discussion in the context of Great Britain at pp 192–194 below. 227 Ministerial instructions of the Ministry of Public Service no 2106 of 14 November, 2005 regarding authorisations of absence on religious grounds. 228 L Cachón, Report on measures to combat discrimination Directives 2000/43/EC and 2000/78/EC, Country report 2013, European Equality Network 2013 (2013).

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members of staff are loyal to that ethos. This is the case even though sharing a religious belief may not be an essential requirement for carrying out the core duties of the job. Any such requirement must not entail discrimination on any other ground. Article 4(1) The first exception is not particularly controversial. It parallels the bona fide occupational requirement exceptions found in the non-discrimination provisions covering other grounds. It only applies where there is a very clear connection between the work to be done and the characteristics required. According to the Directive, the occupational requirement must be genuine and determining, and it must be proportionate in the particular case involved. In effect, religion will need to be a defining feature of the job. Under this provision, religious discrimination is only really likely to be lawful in the case of those employed in religious service, whose job involves teaching or promoting the religion, or being involved in religious observance. However, some member states provide more extensive protection for religious employers than that provided by Article 4(1), because they exempt church bodies from the provisions of their equality legislation altogether. This may mean that they are not fully compatible with the Directive. For example, in the Netherlands, the General Equal Treatment Act (GETA) does not apply to the internal affairs of churches, of other religious communities or of associations of a spiritual nature.229 This is in order to respect the division between church and state, and to uphold the principle of freedom of religion. The restriction only concerns the internal affairs of churches. However, it means that the employment of clergy is outside the scope of the Directive’s protection, and so any discrimination on grounds of sexual orientation or gender would not be subject to review.230 Although such exemptions may have a legitimate aim, as they attempt to respect the autonomy of religious groups, the total exclusion of such cases from the consideration of the court leaves individuals unprotected, and may not be compatible with the protection provided by the Directive. In Germany, the Constitution separates church and state, and establishes the principle of the neutrality of the state. Prior to the transposition of the Directive, employers such as churches and institutions related to the church were treated as autonomous, and so outside the protection of labour regulation. However, under the law transposing the Directive, sections 8 and 9 transpose Articles 4(1) and 4(2) directly, and so such employment will be covered by the Directive. Article 4(1) does not allow for the total exemption of churches from the protection of the Directive, but instead requires that any exceptions be proportionate. This means that exceptions that apply to churches should be subject to review by courts to ensure that they are objective and reasonable. Clearly, in many cases involving the appointment of clergy or others who conduct religious services or 229 230

General Equal Treatment Act § 2. General exceptions, Section 3. See discussion of the position in the UK at pp 179–183.

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who are involved in teaching the religion, discrimination on grounds of religion is likely to be proportionate. Courts will have regard to the clear case law of the ECtHR, discussed above, which protects the rights of religious groups to select their own leaders, as part of the protection due to religious groups. However, it is preferable to provide for review of exceptions by the Court using the standard of proportionality rather than exempting religious bodies altogether, to ensure that any discrimination, particularly that based on other grounds such as gender, race, sexual orientation or disability, is indeed proportionate to the legitimate aim of maintaining religious autonomy. Article 4(2) Under Article 4(2) of the Directive, which applies only to organisations that have an ethos based on religion and belief, differences in treatment will not be discriminatory where, by reason of the nature of the activities or the context in which they are carried out, a person’s religion or belief constitutes a genuine legitimate and justified occupational requirement, having regard to the organisation’s ethos. The aim of the provision is to allow an organisation with an ethos based on religion or belief to require loyalty and good faith to its ethos, and it applies to a broader category of staff, including those whose jobs are not determinedly religious in nature. However, Article 4(2) does not justify discrimination on other protected grounds. Member states have implemented Article 4(2) in various ways. In Germany,231 exceptions exist for religious communities, to reflect the principle of the neutrality of the state and the autonomy of the church. The autonomy of churches extends to institutions related to the church, where the institution has a substantial relationship to the religious mission of the church. For Christian churches, it has been accepted that charitable activities, such as running hospitals, are encompassed by the religious mission of the Christian faith. This means that employment can be terminated if duties and obligations of loyalty are violated. For example, a doctor in a religious hospital could be dismissed if she leaves the particular church or marries a divorced man, if this contradicts the ethos of the church concerned. Similarly, an employee in a childcare centre supported by a Catholic organisation could be dismissed for leaving the Catholic church, even though the childcare centre was financed by the state.232 In addition to the special provisions for churches as employers, a more general exception applies in Germany for employers with a religious ethos, allowing regard to be had to that ethos in setting occupational requirements. However, in 231 See further M Mahlmann, Report on measures to combat discrimination Directives 2000/43/EC and 2000/78/EC, Country report 2013, Germany (2014), available at . 232 Cf, eg, Rhineland-Palantinate Land Labour Court, 2 July 2008, 7 Sa 250/08: no discrimination if employee in a nursing home attached to a church is dismissed because the employee leaves the church, as this is justified by the breach of duty of loyalty (parties settled at next instance, Federal Labour Court, 21 December 2010, 2 AZR 516/09); Federal Labour Court, 25 April 2013, 2 AZR 579/12, confirming that leaving a church forms a sufficient reason for the dismissal of an educational social worker, employed for social work without religious content with children in a state-financed institution run by a Catholic charity.

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order to use the exception, the belief-based requirement must constitute a ‘substantial, lawful and justified’ occupational requirement for the position.233 These provisions are capable of being interpreted to comply with Article 4(2), although in each case any exception will need to be justified as proportionate. In France,234 Article 4(2) has not been directly transposed. This means that ethos-based organisations will be governed by the narrower exception in Article 4(1), and will be unable to impose religious or loyalty requirements on employees other than those with clearly religious roles, such as clergy. Nonetheless, in the Baby Loup case the Court of Appeal of Paris referred to Article 4(2), and the argument was accepted by the Court that the nursery was able to require the staff member to remove her headscarf because the nursery had a secular ethos. It was therefore allowed to require a stricter secular dress code than other employers without such an ethos. The 2014 Cour de cassation reached the same conclusion as the Court of Appeal of Paris, as it also upheld the ban on the headscarf, but the legal basis for its decision was different.235 In a similar case, this issue has now been referred to the CJEU.236 The exception contained in Article 4(2) has not been incorporated into implementing legislation in all member states, including France, Portugal and Sweden. Although the provision of exceptions is optional under the Directive,237 the failure to transpose Article 4(2) means that religious groups will be unable to impose religious or loyalty requirements on those employees not covered by Article 4(1). Where only Article 4(1) applies, the requirements of proportionality and necessity are stricter. As a result, it may be that some degree of religious freedom is denied to religious groups, as they are unable to impose religious requirements on staff unless they are determining features of the job. Other Member States have transposed Article 4(2) in terms that go beyond the Directive, so that religious ethos organisations are allowed to discriminate more than is allowed for under the Directive. For example, until 2015, section 37(1) of Ireland’s Employment Equality Act 1998 contained an exception to the nondiscrimination principle for the purposes of maintaining the religious ethos of an institution that was broader than that allowed for in the Directive, as it did not provide that religion or belief should be relevant to the particular job in question; nor did it limit the exception to prevent its being used to justify discrimination on 233

Berlin Labour Court (Arbeitsgericht Berlin), 18 December 2013, 54 Ca 6322/13. See further S Latraverse, Report on measures to combat discrimination Directives 2000/43/EC and 2000/78/EC, Country report 2013, France (2014), available at . 235 Art 4(2) of the Directive is not applicable to Baby Loup according to the 2014 final Cour de cassation decision, because laïcité cannot be relegated to a mere belief or ethos. 236 French Court of cassation decision no 630 of 9 April 2015 (file no 13-19855). See M Rubenstein, ‘Recent and Current Employment Discrimination Cases in the Court of Justice of the European Union’ (2015) 15 Equal Rights Review 57, at . 237 Art 4(2) limits its exception to legislation in force at the date of adoption of the Directive, and future legislation incorporating national practices existing at the date of its adoption. 234

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another ground. As a result, the equality rights of others, particularly lesbian and gay people, were inadequately protected. The Equality (Miscellaneous Provisions) Act 2015238 amended section 37 to bring it into compliance with Article 4(2). Any requirement must now constitute a legitimate and justified occupational requirement having regard to the institution’s ethos; and a requirement may not constitute discrimination on other grounds.

Discrimination on Other Grounds The effect of the genuine occupational requirements under Article 4(2) of the Directive is that religious employers may be able to create workplaces that are homogeneous in religious terms, even where the work is not religious in nature. However, if discrimination on other grounds such as sex or sexual orientation results, such a practice will be in breach of the Directive, as it will amount to indirect discrimination on the other ground. An exception may be where the work itself is religious in nature. In such a case the religious requirement, which is indirectly discriminatory on other grounds, may be justified as proportionate, because of the need to uphold religious freedom. Article 4(2) makes clear that the occupational requirement exception does not make discrimination on other grounds lawful. Thus, for example, a requirement to be Christian to work in a Christian hospital may be lawful, but it will not be lawful under the Directive if that requirement also discriminates on grounds of gender or sexual orientation.239 If the sex or sexual orientation discrimination is indirect, for example because the requirement relates to loyalty to religious teaching rather than gender or orientation directly, then the requirement could potentially be lawful, although it would need to be justified as a proportionate means to achieve a legitimate aim. The need to respect religious autonomy could be a legitimate aim in such a case, although given that such requirement would involve discrimination on another ground, it would be expected that a very high level of scrutiny would be applied. In Germany, cases have arisen involving employees’ homosexuality, which, if openly manifested, is interpreted by some religious organisations as a breach of such duties of loyalty. There is contesting case law on this matter,240 some of which does not seem to be in accord with the Directive. For example, in one case,241 homosexuality was not a sufficient reason for refusing to admit an applicant for 238

Equality (Miscellaneous Provisions) Act 2015, s 11. see the position in the UK, discussed below, which allows for a specific exception for those employed for the purposes of an organised religion: Equality Act 2010, Sch 9, para 2. In the English High Court case of R (on the application of Amicus—MSF and others) v Secretary of State for Trade and Industry and others [2004] IRLR 430 (High Court), it was confirmed that this is to be narrowly interpreted to cover clergy or their equivalent whose work involves religious practice. 240 M Mahlmann, Report on measures to combat discrimination Directives 2000/43/EC and 2000/78/ EC, Country report 2013, Germany (2014), at 83, available at . 241 Land Labour Court Baden-Württemberg, 24 June 1993, 11 Sa 39/93, NZA 1994, 416. 239 However,

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education as a carer for disabled persons; in contrast, in another,242 the fact that an applicant was in a registered partnership was justified as a reason not to employ the applicant as head of a Catholic kindergarten, even though the job did not on the face of it involve the performing of religious rites or observances. This matter raises interesting issues relating to the position of clergy. Although the matter has not been tested in the CJEU, it is likely that religious requirements imposed on clergy (or their equivalent) that discriminate on other grounds will remain lawful, because the roles will have occupational requirements relating to sex or sexual orientation, and these requirements are likely to be proportionate to the aim of maintaining the autonomy of the churches. In the UK, an additional exception applies to the appointment of persons employed for the purposes of an organised religion, allowing gender and sexual orientation discrimination in appointments where necessary to comply with religious doctrine or to avoid conflicting with the strongly-held beliefs of a significant number of the religion’s followers.243 Other states do not have this additional exception but have exempted the church altogether from the protection of the Directive. In Germany, section 9 of the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz (AGG)) contains an exception allowing that differences of treatment on the grounds of the religion or belief of the employees of a religious community do not amount to discrimination where there is a justified occupational requirement to be of a particular religion or belief, with regard to the ethos of the religious community or organisation in question and by reason of their right to self-determination or by the nature of the particular activity. This means that not only is any religious discrimination in the appointment of clergy likely to be lawful, but any additional discrimination on grounds of gender and sexual orientation in relation to ordination may also be lawful if it can be justified as a genuine occupational requirement that is proportionate given the nature of the employer.

Conclusion: The EU Directive Religious interests are provided with a fairly high level of protection under the Employment Equality Directive 2000/78, with protection against direct and indirect discrimination and harassment on grounds of religion and belief. Yet this brief review of the implementation of the Directive across a range of EU states shows that there remains a variety of practices regarding religion and belief in the workforce when it comes to the protection of religion in contexts such as the wearing of religious dress or the provision of time off for religious observance. It remains to be seen whether the implementation and enforcement of the Directive will lead to greater standardisation of practice across Europe. To an extent this will depend on how willing the CJEU is to take into account different traditions in 242 243

Labour Court Stuttgart, 28 April 2010, 14 Ca 1585/09, NJOZ 2011, 1309. Equality Act 2010, Sch 9, para 2.

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different states when assessing the proportionality of any exceptions or limits on religious equality.244 The EU law relies significantly on the notion of proportionality to set the parameters of its protection of equality on grounds of religion and belief. It allows religious ethos employers to use religion as a criterion in employment decisions, subject to a proportionality assessment; and it allows for potentially indirectly discriminatory practices to be justified where it is proportionate to do so. In this way, the interests of equality on grounds of religion and belief are capable of being balanced against other interests, including the human rights of others. What is unclear, in the absence of a developed case law on the religion and belief ground of Directive 2000/78, is how the protection of equality on grounds of religion and belief will compare to the protection of equality on other protected grounds, such as race or gender, where any potential inequality is subject to strict scrutiny. The question for the CJEU will be whether, in developing its jurisprudence under Directive 2000/78, it follows its established strict approach in equality cases, or follows the lead of the ECtHR in according deference to national courts.245 It is in this context that the discussion now turns to consider how the two European courts—ECtHR and CJEU—interact, and how any differences in their respective approaches might be reconciled.

III. The Interaction of the Two Courts Both the European legal regimes provide significant protection for religion and belief in the workplace, although of course the legal bases for the protection differ, with the focus of the ECHR on the fundamental human right to freedom of religion and belief, and the focus of the Directive on equality in employment and occupation. However, the two frameworks are closely aligned and work reciprocally, with both the ECtHR and the CJEU recognising the importance of the other. European law provides human rights protection in the EU Charter on Fundamental Rights, and the fundamental rights of the ECHR constitute general principles of EU law.246 The ECHR recognises the principle of equality in Article 14; and the ECtHR has stated that the Convention should be interpreted in the light of elements of international law,247 including the practice of contracting member states, such as the equality norms of the EU Directive. In effect, the Courts recognise that 244 In her opinion in Achbita & Anor v G4S Secure Solutions NV [2016] CJEU C-157/15, AG Kokott suggests that the CJEU should allow a measure of discretion to national courts (at [99]) and that national identity of the member state should be a relevant factor to take into account in assessing proportionality (at [141]). 245 In Achbita ibid. AG Kokott suggests that the CJEU should allow a measure of discretion to national courts, at [99]. 246 Art 6(3) TEU. See also Case C-555/07Kucukdeveci v Swedex [2010] IRLR 346, at para 20. 247 Demir and Baykara v Turkey, App no 34503/97 (ECtHR, 12 November 2008).

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the relationship between them should be one of reciprocity, with each taking into account the jurisprudence of the other in their interpretation. Moreover, the accession of the EU to the ECHR under the Lisbon Treaty248 will mean that the integration of the two legal systems should increase.249 Despite having in common a clear aim to protect religion and belief interests, nonetheless, the overview above reveals some differences in approach between the two legal frameworks. These differences could be significant, as cases are likely to come before them based on similar facts. For example, the litigation that was brought to the ECtHR in Eweida arose from cases brought under the Directivederived religion and belief provisions of the UK equality law.250 Had the domestic courts so chosen, they could have referred the cases to the CJEU for resolution. Given the close relationship between the two Courts, it is thus important to consider whether they are likely to reach similar conclusions on cases brought under the different legal frameworks; and if they are not, to consider how this might be resolved, given the commitment by both Courts to work towards greater integration. Beyond the practical need for the two frameworks to work reciprocally, freedom of religion and belief and equality on the grounds of religion and belief are often complementary interests,251 and so it is likely to be beneficial to bring understandings from one framework into the deliberations of the other. For example, insights from equality law (such as the recognition in the context of gender equality that women’s equality is enhanced if they have access to work) may be useful in developing human rights norms regarding the role of religion in the workplace. Accommodating features of women’s lives that can restrict access to work, such as the need for childcare, can therefore enhance work participation rates for women, and thus improve women’s equality. Applying such equality-based thinking to religion, it is arguable that common religious practices such as wearing a headscarf should normally be allowed at work, in order to improve participation of religious minorities in employment. Equally, human rights concerns may influence understandings of equality law. For example, an understanding of the collective religious interests of a church may be helpful in determining whether a genuine occupational requirement to share the faith of the group is a proportionate requirement for support staff employed in a church. However, although mutual benefit can be identified from reciprocal interpretation of the two legal frameworks, at times the rights-based interests and equalitybased interests can be in tension with each other. For example, equality of treatment may require a restriction on religious freedom, in that requirements to treat all job 248

Art 6(2) TEU. On the relationship between the two Courts and the process of accession, see S Morano-Foadi and L Vickers (eds), Fundamental Rights in the EU: A Matter for Two Courts (Oxford, Hart Publishing Ltd, 2015). 250 The case was brought under the Employment Equality (Religion and Belief) Reguations 2003, now consolidated into the Equality Act 2010. 251 As discussed in Ch 3. 249

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applicants equally with regard to religion may restrict the religious freedom rights of an employer who wishes to use religion as a criterion for recruitment. The interaction of the two legal frameworks in the context of tensions between religious rights and equality can be illustrated further by taking the example of the bans on religious symbols imposed on workers in the public sector across much of Europe. Thus far, these cases have been challenged on the basis of religious freedom under the ECHR, and the bans have been upheld as coming within the broad margin of appreciation allowed in religion cases.252 However, bans on religious symbols at work could equally be challenged under the EU Directive 2000/78. Such bans are usually neutral in their terms but will put particular religious groups at a disadvantage compared with others; they are therefore potentially indirectly discriminatory, and must therefore be justified as proportionate means to achieve a legitimate aim. The EU case law on indirect discrimination is well established in the context of other equality strands and requires strict justification. This suggests that bans on religious symbols at work should only be justified where strictly necessary. The high standard of review in equality cases suggests that the CJEU could take a different approach from the ECtHR to the issue of religious symbols at work, with a finding that bans are indirectly discriminatory. Despite a commitment to greater integration, then, the two legal frameworks clearly have the potential to reach different conclusions on the same issue. Given that the two Courts should work reciprocally, how, then, might any differences between their approaches be reconciled?

Reconciling Equality and Human Rights: Reciprocal Interpretation? First, it is worth noting that both legal frameworks possess an inherent capacity to mediate conflicts between interests. In part this is because in neither framework are religious interests protected in an absolute sense. With regard to human rights claims, the manifestation of religion and belief can be limited where justified; and in relation to exceptions to discrimination, claims are allowed where religious employers impose justified and proportionate genuine occupational requirements. Moreover, potential indirect discrimination can be justified where proportionate. The fact that neither system creates absolute rights means that there is plenty of scope for reciprocal interpretation between the two Courts, by developing common approaches on questions regarding when restrictions on religion are proportionate. For example, the legitimate aim of a limitation on freedom of religion may be to uphold equality; or a limitation on equality may be justified on the basis of a need to protect the human rights of others. Beyond the scope for flexible interpretation provided by legal instruments themselves, both European legal systems recognise a need for a degree of flexibility 252 Sahin and Karaduman v Turkey App no 16278/90 (1993) 74 DR 93; Dahlab v Switzerland [2001] ECHR 899; Ebrahimian v France App no 64846/11 (ECtHR, 26 November 2015).

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and adaptability in the interpretation of the law across different domestic jurisdictions, and this could be used to help ensure that complementary standards are developed for the protection of religious interests. As discussed above, the ‘margin of appreciation’ doctrine provides considerable flexibility in the context of the ECHR. In addition, two bases of flexibility can be seen in EU law. First, Article 4(2) TEU provides ‘The Union shall respect … [member states’] national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government.’ This suggests that some deference should be shown to differences in practice on issues such as the regulation of religious manifestations, as these practices are so closely interlinked with the history and culture of different states that they can be considered to be part of national identity. Secondly, the CJEU has allowed a ‘margin of discretion’ in cases involving fundamental rights other than religion, thereby introducing an element of flexibility in interpretation. This can be seen in Schmidberger v Austria,253 and was confirmed in the Omega case,254 where the ECJ accepted that EU law must be interpreted in the light of fundamental human rights principles. It accepted that there is a margin of discretion in reaching a fair balance between competing economic and social interests, and that it is not necessary that states all agree on a shared conception of how to protect the interests in question. In Viking and Laval255 too, the ECJ recognised the importance of human rights norms in defining the parameters of EC treaty rights, accepting that the latter can be limited where it is justified by overriding reasons of public interest such as the furtherance of fundamental human rights, and where it is proportionate.256 The Omega and Schmidberger cases show that, as with the margin of appreciation in human rights cases, as long as the standard of protection provided does not fall below a minimum, there is room for different standards of protection for fundamental rights to be accepted as legitimate within the EU member states, to reflect different national contexts, identities and traditions. This flexibility should leave space for the CJEU to crossrefer to ECtHR standards when interpreting the religious equality provisions, to ensure compliance with ECHR norms. The fact that the rights in question are not absolute, together with the interpretive techniques open to both Courts, means that any conflict between competing rights should be capable of resolution in a mutually acceptable, reciprocal fashion. Moreover, this should be achievable without recourse to any hierarchy as between the two Courts, or as between the equality framework and the human rights

253 Case C-112/00 Schmidberger Internationale Transporte Planzüge v Republik Österreich [2003] ECR I-5659. 254 Case C-36/02 Omega v Oberburgermeisterin der Bundesstadt Bonn [2004] ECR I -9609 255 Case C-438/05 The International Transport Workers’ Federation and The Finnish Seamen’s Union v Viking Line; Case C-341/05 Laval v Svenska Byggnadsarbetareforbundet [2007] ECR I-10779. 256 The outcomes in Viking and Laval have been the subject of significant criticism. The use of discretion in applying EU treaty rights in deference to human rights was applied to the facts of the cases in a way that was regressive in terms of collective rights. A C L Davies, One Step Forward, Two Steps Back? The Viking and Laval Cases in the ECJ (2008) 37(2) ILJ 126.

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framework.257 However, a number of concerns can be identified regarding the potential for the two systems to work together to enhance protection for religion and belief.258 These arise in particular because a number of interpretive devices used in the human rights jurisprudence of the ECtHR may not translate well to the equality context. This is a particular concern if there is to be cross-fertilisation between equality grounds, so that factors that are accepted in the case of religion and belief equality begin to be used in the case of other equality grounds such as gender or race.

The Specific Situation Rule The ‘specific situation rule’, discussed above, is an example of a rule that is used in human rights jurisprudence but which may not work well if used in the equality context. The rule refers to the fact that where individuals voluntarily submit themselves to rules that limit their manifestation of religion, their Article 9 claims will be limited. In the ECtHR case of Eweida, the Court restricted the extent to which the specific situation rule can limit religious freedom at work, but nonetheless still held that the possibility of changing jobs should be weighed in the overall balance when considering whether or not a restriction on religion was proportionate.259 However, even in its newly diluted form, the specific situation rule may be less easy to accept when considered from an equalities perspective. In the context of discrimination law, an onus is rarely put on an individual to take steps to avoid discrimination by ‘staying out of harm’s way’. For example, in cases of harassment, it would be seen as bad practice to move the victim of harassment away from the perpetrator; instead, the perpetrator would be expected to be disciplined.260 In addition, the language of choice would not usually be used to deny an equality claim. For example, whether a pregnancy is chosen or not would not affect the provision of maternity protection. Moreover, ‘separate but equal’ provision is not accepted as a defence to direct or indirect discrimination in the provision of a service; the fact that a child could choose a different school would not be reason to deny admission on grounds of race. Although, post-Eweida, the specific situation rule in relation to religious freedom has moved from an a priori rule against protecting religion in certain circumstances to a factor to determine proportionality, it is arguable that the approach should not always be viewed as appropriate if used as a proportionality factor in an equality-based case. 257 See S Morano-Foadi and S Andreadakis, ‘The convergence of the European Legal System in the treatment of Third Country Nationals in Europe: the ECJ and ECtHR ‘(2011) 22(4) European Journal of International Law 1. See also CF Sabel and O Gerstenberg, ‘Constitutionalising an Overlapping Consensus: The ECJ and the Emergence of a Coordinate Constitutional Order’ (2010) 16 ELJ 511. 258 M L P Loenen and L Vickers, ‘More is Less? Multiple Protection of Human Rights in Europe and the Risks of Erosion of Human Rights Standards’ in S Morano-Foadi and L Vickers (eds), Fundamental Rights in the EU: A Matter for Two Courts (Oxford, Hart Publishing Ltd, 2015). 259 Eweida and others v UK [2013] ECHR 37 para 83. 260 See ACAS Guide for Managers and Employers, Bullying and Harassment at Work, available at .

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The Value of Communal Interests A second area where the relationship between a freedom of religion approach and an equality approach may be strained can be seen in respect of the value of group interests, and the Article 9 right that is to be enjoyed alone ‘or in community with others’. This means that religious organisations have their own religious interests, which may be at odds with the equality interests of others, seen most obviously in the cases of religious employers who wish to reflect their religious ethos in their employment practices, even though to do so may result in discrimination against others on grounds of religion or other protected characteristics. For example, in the context of religious freedom claims, the right of religious adherents to choose their leaders is given clear protection under the ECHR,261 and it is unlikely that a court would interfere with the requirements of many churches that priests or others who perform religious rites or rituals must be male and (depending on the Church) heterosexual or celibate. Interference with such practices by a court would be understood to infringe religious freedom. What this means is that the rights of those who seek to discriminate have some traction in the legal reasoning. However, the idea that the rights of discriminators should be protected may again be a concept that does not translate to the equality context. It is difficult to find equivalent examples in respect of other equality grounds. For example, some direct discrimination may be lawful where there is a genuine occupational requirement for a job to be done by person with a particular characteristic; where a women’s support centre requires staff to be female in order better to meet the emotional needs of the client base, a requirement to be female would be likely to be proportionate. However, exceptions to gender equality are interpreted extremely strictly, and would not also allow discrimination on other grounds. This can be contrasted with the position of occupational requirements applied in the case of the employment of clergy, where the requirements may be based on religion but will have an impact in terms of sex and sexual orientation equality.

The Margin of Appreciation Perhaps the most significant concern about the use of human rights concepts, and the extent to which they may be applied in the context of equality, relates to the margin of appreciation. As discussed above, the ECtHR routinely relies on the margin of appreciation in deciding cases in which consensus is difficult to determine, with a resulting low level of scrutiny. In contrast, the CJEU case law aims to set standards to eradicate inequality, rather than to reflect consensus and tradition. Although the margin of appreciation does not directly apply in the context of the Directive, the process of reciprocal interpretation as between the CJEU and the ECtHR in religion cases could mean that the concept could infiltrate the thinking

261 Hasan and Chaush v Bulgaria (2002) 34 EHRR 55, para 62; see also Serif v Greece (2001) 31 EHRR 20.

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in religious equality cases. Given that there is scope for the introduction of discretion in the implementation of areas of EU law, as illustrated by the Omega and Schmidberger cases discussed above, it could be that use of ECtHR case law to aid interpretation of the EU Directive might lead to the adoption of similar thinking in EU law. A particular concern is that the use of the margin of appreciation or discretion is inappropriate in the context of equality law, an area where consensus and tradition have long been in favour of inequality. Indeed, EU equality law has often been developed in the face of prevailing consensus in Europe:262 it was the very fact that gender discrimination was so entrenched in national tradition that led to EU action to eradicate it. It seems inconceivable that the Court would allow a member state to argue that local custom, history and practice should be allowed to explain and justify sex or race discrimination in employment, and it is worth reflecting on how gender and sexual orientation equality norms might have fared had courts given too much weight to the consensus across Europe at the time of their development. In the context of the debate regarding how human rights and equality may interact, it is unclear to what extent a lack of consensus and reasonable differences of opinion should be allowed to determine the outcome of protection. Whilst it is perhaps useful as a matter of practical politics to leave some discretion to states on contentious issues about which there is disagreement (such as the headscarf issue in Europe), there are clear dangers in relying on consensus and settled practice to set the boundaries of protection, particularly with respect to minority rights and interests. After all, if the aim of human rights protection is to protect the individual from the power of the majority (as represented by the state) then the boundaries of this protection should not be set by reference to majority opinion.263 This concern has particular resonance when used in the context of equality, where protection is often being afforded to minority or other disadvantaged groups, who have been badly served by the majority. The problem can be illustrated in relation to the debate on the German headscarf case, which was heard in the German Constitutional Court.264 Here the Federal Constitutional Court decided that the issue was best dealt with via the democratic process, so that only legislative bans would be upheld. In the case before the Court, that meant that the headscarf ban was unlawful. However, following the judgment, several German legislatures introduced a ban. Once there was a democratic mandate in favour of the ban, the Constitutional Court’s objection was removed. The majority was thus able to 262

See, eg, P v S and Cornwall CC [1996] IRLR 347. G Letsas, ‘The Truth in Autonomous Concepts: How to Interpret the ECHR’ (2004) 15(2) European Journal of International Law 279; and K Dzehsiarou, ‘Does Consensus Matter? Legitimacy of the European consensus in the case law of the ECHR’ [2011] PL 534. 264 Bundesverfassungsgericht, 24 September 2003, Ludin, 2BvR 1436/02. For more detailed discussion see M L P Loenen, ‘Accommodation of religion and sex equality in the workplace’ in K Alidadi, M-C Foblets and J Vrielink (eds), A Test of Faith? Religious Diversity and Accommodation in the European Workplace (Farnham, Ashgate, 2012) 103. 263 See

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determine the rights of the minority via a reliance on political consensus, a process that could lead to a diminution of protection for disadvantaged groups. In effect, allowing protection to be ‘norm-reflecting’ rather than ‘norm-setting’ can serve equality interests badly, particularly the interests of minority groups. It may therefore not be helpful to use the concept of the margin of appreciation as a mechanism to reconcile any conflict in approach between religious freedom and religious equality, as to do so may leave minority groups in particular vulnerable to continued inequality of treatment.

Conclusion: The Role of Proportionality The existence of two legal frameworks for protecting religion and belief in Europe gives rise to significant potential to achieve appropriate protection for religion and belief interests at work. The recognition of both a human rights and an equality basis for protection holds the promise of improved protection, as both dimensions to religion and belief interests are recognised. Moreover, both systems include mechanisms for the proportionality of any limitation on religion and belief interests to be assessed, and the proportionality assessment in both frameworks is likely to be improved if the complementary nature of the human rights and equality are considered. But, as discussed above, it is important to be aware that wholesale transplantation of one set of concepts, such as the specific situation rule, developed in the context of one framework, may not work well when applied to the other framework. Moreover, although the potential for reciprocal and flexible interpretation as between the two frameworks is clear, nonetheless, in cases such as Viking and Laval the interaction of the two legal frameworks has not led to increased protection for fundamental rights. It can be argued that interaction between the two frameworks could be problematic in the context of equality, leading to the levelling down of protection.265 For example, relying on human rights thinking, an employer might refuse to allow time off work for religious observance and justify this on grounds of economic cost. However, if such reasoning were to be accepted as justifying a refusal of a similar request relating to sex or race discrimination, this could lead to a reduction in the current levels of protection under the Equality Act 2010 for these protected characteristics. Perhaps the most significant concern regarding any harmonising of the jurisprudence of the two legal frameworks relates to the difficulty in deciding how to balance their conflicting approaches to the lack of consensus, and how much deference to afford to national courts in determining levels of protection for 265 M L P Loenen, ‘Accommodation of religion and sex equality in the workplace’ in K Alidadi, M-C Foblets and J Vrielink (eds), A Test of Faith? Religious Diversity and Accommodation in the European Workplace (Farnham, Ashgate, 2012) 103; M L P Loenen and L Vickers, ‘More is Less? Multiple Protection of Human Rights in Europe and the Risks of Erosion of Human Rights Standards’ in S Morano-Foadi and L Vickers (eds), Fundamental Rights in the EU: A Matter for Two Courts (Oxford, Hart Publishing Ltd, 2015).

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r eligion and belief. From the perspective of the ECtHR, lack of consensus leads to an under-enforcement of human rights based on the wide margin of appreciation under which deference is given to domestic courts. In terms of equality, the CJEU protection has been used to develop firm standards of enforcement and a new consensus in favour of equality, with limited deference to national courts.266 One way forward would be to accept that different protected characteristics in equality law should be afforded different levels of legal protection. This would allow for more limited review in religion and belief equality cases, without concerns regarding the levelling down of protection for other grounds of equality. This would be to go against some of the rhetoric from the CJEU, which suggests that there should be no hierarchy as between the various equality provisions across the EU. Nonetheless, moving away from a common approach to all strands of equality would allow an approach to equality on grounds of religion and belief to develop in which the two aspects of religious interests, religious freedom and religious equality, can co-exist. The notion of proportionality, and the flexibility inherent within it in the religion and belief context, could then continue to be a mechanism by which the various religion and belief interests can find some equilibrium. In Chapter 3 a range of factors was identified to be taken into account in assessing proportionality, including the recognition from human rights law that religion can involve both communal and individual rights, and from equality law that religion and belief can be causes of inequality. Chapter 3 also identified a number of different conceptions of equality, and it may also be that a more varied understanding of the meaning of equality may be useful in assessing proportionality. Whether the CJEU applies consistent standards for all grounds of equality across all member states, or instead follows the more deferential approach of the ECtHR in religion and belief cases, remains to be seen although the rhetoric of no hierarchy of equality grounds may well come under pressure in practice.267 Until this is resolved, the UK will need to interpret its law in the light of the HRA 1998/ECHR, as well as with regard to the EU Directive on which its domestic law is based. The provisions of the UK law on religion and belief in the workplace are considered in the next chapter.

266 However, if the CJEU follow the lead of AG Kokott in Achbita & Anor v G4S Secure Solutions NV [2016] CJEU C-157/15, it may well allow for different treatment to continue across member states. 267 See opinion of AG Kokott in Achbita & Anor v G4S Secure Solutions NV [2016] CJEU C-157/15. See further, M L P Loenen and L Vickers, ‘More is Less? Multiple Protection of Human Rights in Europe and the Risks of Erosion of Human Rights Standards’ in S Morano-Foadi and L Vickers (eds), Fundamental Rights in the EU: A Matter for Two Courts (Oxford, Hart Publishing Ltd, 2015).

5 Protection Against Religion and Belief Discrimination in the UK The Employment Equality Directive1 requires all Member States to protect against discrimination on grounds of religion and belief in employment, occupation and vocational training. In response, the Employment Equality (Religion or Belief) Regulations 2003 were introduced in Great Britain and came into force in December 2003, and have since been consolidated into the Equality Act 2010. Provisions protecting against discrimination on grounds of religion and political opinion were already in force in Northern Ireland,2 and amending legislation was introduced there to ensure compliance with the Directive.3 The aim of this chapter is to assess the extent to which the approach in the UK, based on the Employment Equality Directive, provides the level of protection for religious interests that was advocated in Chapter 3, and whether the difficult task of reconciling different interests has been appropriately achieved. The focus is on the Equality Act 2010 (the ‘Equality Act’),4 which does not apply in Northern Ireland.5 However, the protection in Northern Ireland is very similar, and where differences occur these will be indicated.

1 Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16 (‘the Directive’). 2 Legislation to protect against discrimination on grounds of religion or belief was introduced in Northern Ireland in 1976 and is currently governed by the Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO). The FETO requires registration of all employers with 10 or more employees, and requires all registered employers to monitor the composition of their workforce by persons belonging to either the Roman Catholic or Protestant communities and by sex. The Equality Commission for Northern Ireland has powers of enquiry and investigation, and powers to recommend or require employers to take affirmative action in a specified period. There are also extensive duties on public authorities to promote religious equality. See A McColgan, Discrimination Law (Oxford, Hart Publishing, 2005) 668–87. 3 The Fair Employment and Treatment (Amendment) Regulations (NI) 2003 (SI 2003/520), which amended the definitions of harassment and indirect discrimination to bring them into line with the Directive. 4 The Equality Act 2010 will be referred to as ‘the Equality Act’. Where the Equality Act 2006 is referred to, the year will be included. 5 Northern Ireland has long had protection against discrimination on grounds of religion, dating from the Government of Ireland Act 1920, through the Fair Employment Acts of 1976 and 1989 to the FETO 1998. Although this gives rise to extensive experience of dealing with religious discrimination, the historical and political context of the protection is peculiar to Northern Ireland, and so this experience is not always of direct relevance to the rest of the UK.

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Prior to the implementation of the 2003 Regulations, and in the absence in Great Britain of any provisions relating directly to religious discrimination, the only protection available against discrimination on religious grounds was race discrimination. For some religious groups who share a common ethnicity, protection could be granted on grounds of ethnic origin rather than religion. Thus Sikhs and Jews have been defined as both ethnic or racial groups, and as religious groups.6 This meant that they were already protected under the race provisions of the Race Relations Act 1976. In contrast, Muslims are not an ethnic group,7 although, because in the UK the Muslim population is predominantly Asian, there have been findings in domestic law that discrimination against Muslims may amount to indirect race discrimination.8 The clear lack of consistency between different religious groups was overcome with the introduction of protection against discrimination on grounds of religion in 2003. The general protection against discrimination now contained in the Equality Act is examined below. The chapter starts with a discussion of the protection in general terms. It then turns to consider a number of specific situations, together with the case law, relating to religion and belief at work, such as dress codes, requests for time off for religious observance and requests to opt out of particular work tasks. The special position of schools is then considered, followed by a brief review of the residual employment protection available for those who fall outside the protection of the Equality Act.

I. Protection Under the Equality Act 2010 Definition of Religion and Belief As discussed in Chapter 2 above, the Equality Act does not define ‘religion and belief ’, although the phrase has been interpreted in the light of the jurisprudence of the ECtHR,9 and working definitions can be seen to be emerging through the UK case law. The lack of a conclusive definition in the Equality Act reflects the absence of definition in the Directive, and provides the potential for inconsistent treatment of religious groups across Europe. The discussion of the case law in Chapter 2 concluded that the courts have struggled to achieve consistency in the definitions of religion and belief. For example, a belief system such as Scientology

6 See Mandla v Lee [1983] 2 AC 548 and Seide v Gillette [1980] IRLR 427. In determining the meaning of ‘ethnic group’ in the UK, one of the factors considered was whether the group shared a religion. 7 Tariq v Young Case 247738/88, Equal Opportunities Review Discrimination Case Law Digest 2. 8 JH Walker v Hussain [1996] IRLR 11. 9 For the approach under the ECHR see C Evans, Freedom of Religion under the European Convention on Human Rights (Oxford, OUP, 2001) Ch 4.

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has been subject to inconsistent treatment within Europe;10 and the UK courts have interpreted politically based beliefs, as well as beliefs relating to fox hunting, inconsistently.11 A more positive view of this position is that the lack of formal definition provides flexibility to those interpreting the terms ‘religion’ and ‘belief ’, and means that the courts will not be bound by definitions that could be underinclusive, or could become outdated. In the Northern Irish context, religion and politics are closely related, and it is clear that legal protection extends to cover political opinion. Even here, however, the boundaries may not be clear. In Gill v Northern Ireland Council for Ethnic Minorities,12 the Northern Irish Court of Appeal rejected a claim that discrimination had occurred on grounds of political opinion where an individual had not been offered a job because of differences in approach to race relations. The claimant had advocated an anti-racist stance, whereas the local council (and the successful applicant) favoured a more ‘culturally sensitive’ approach. The Court defined political opinions as those concerning the government of the state or matters of public policy, rather than differing approaches to race relations. Although the outer limits of the definition of ‘belief ’ are not clear, the Equality Act clearly covers atheism and other non-religious viewpoints. References to religion or belief include reference to a lack of a religion or belief. This does more than provide that the Equality Act cover atheists. It would seem additionally to cover absence of a belief in a specific religion, so, for example, an employer who will only employ Christians discriminates against any applicant who is not a Christian.

Coverage of the Equality Act 2010 The Equality Act applies to all employers, religious or secular, and to the public as well as the private sector. It protects employees, and all those who contract personally to do work. It also applies to partnerships, barristers, office-holders, agency workers and other categories of worker not always protected by employmentrelated legislation.13 Despite the wide range of workers and occupations covered by the Act, the Supreme Court has confirmed that two occupational groups remain outside its protection: volunteers and those engaged under a contract for the provision of services. In X v Mid Sussex Citizens Advice Bureau,14 a volunteer adviser with the Citizens Advice Bureau (CAB) was asked to stop attending as a volunteer. She claimed that the reason was connected to her disability. The Supreme Court had to determine 10 For example, it is recognised in Italy (Country report Italy, European Equality Network 2014) but not in Germany (Federal Labour Court, Bundesarbeitsgericht 22 March 1995, Neue Juristische Wochenschrift 1996, 143, Country report Germany, European Equality Law Network, 2014). 11 See discussion in Ch 2 at pp 26–29. 12 Gill v Northern Ireland Council for Ethnic Minorities [2002] IRLR 74. 13 See ss 39–60 for coverage of the Equality Act 2010. 14 X v Mid Sussex Citizens Advice Bureau (CAB) [2012] UKSC 59.

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whether her position as a volunteer was covered by the Equality Directive, and decided that it was not. The decision is particularly important in the religion and belief context, as many religion- and belief-based organisations will have significant numbers of voluntary workers: for example, churches, gurdwaras, temples and mosques will rely on large numbers of volunteers to run worship, youth groups, communal meals and food kitchens, religious education and study groups, and many other ancillary activities. Ethos-based charities also often have substantial volunteer programmes. If those who volunteer time had been covered by the provisions of the Equality Act, this would have great significance for organisations based on religion and belief. On the one hand, it is arguable that no reputable organisation should be worried by a requirement that it be governed by equality laws, as there is no reason not to ensure that its practices are non-discriminatory. On the other hand, the Court recognised that it is not necessary for all fields of activity with which people occupy themselves to be governed by provisions designed to protect equality in the field of employment. Moreover, although it was never argued that all volunteers should be covered by non-discrimination laws, an alternative ruling, perhaps allowing for a multi-factor test to be applied, would have led to significant uncertainty regarding the legal status of the large numbers who volunteer in religion- and belief-based work. However, while the decision was clear that volunteering in the CAB case was not an occupation for the purposes of the Equality Act, it did turn on particular facts. Where work is untaken on an unpaid basis, but with expenses paid, set hours of work and an obligation to undertake the work, it could be that the outcome would be different, particularly if there is an associated chance, in time, of paid employment. Jivraj v Hashwani15 concerned the application of equality law in the context of independent contractors, and in particular the use of religion as a criterion for the appointment of an arbitrator in a legal dispute. The arbitration clause in a legal agreement provided that any arbitrator appointed should be from the Ismaili community. When a dispute arose, Hashwani nominated an arbitrator who was not from the Ismaili community, and claimed that the requirement to be from that community contravened the law prohibiting religious discrimination in employment.16 It was argued that the appointment of arbitrators is covered by equality laws because the arbitrators were persons contracted personally to carry out the work. However the Supreme Court held that arbitrators are self-employed, and so their selection, engagement or appointment is outside the scope of the nondiscrimination laws. The Supreme Court focused on the fact that the equality provisions did not just cover those with a contract personally to do the work, but also applied to ‘employment under’ such a contract.17 This meant that the term should

15

Jivraj v Hashwani [2011] UKSC 40. The Employment Equality (Religion and Belief) Regulations 2003 (SI 2003/1660), now replaced by the Equality Act 2010. 17 Employment Equality (Religion and Belief) Regulations 2003, reg 2, now replaced by the Equality Act 2010. 16

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be interpreted in the light of the underlying understanding of the employment relationship. Given that the arbitrator was independent and not in a relationship of subordination to the user of the service, there was no employment relationship in the case. The majority of the Supreme Court also held that in any event, the religious requirement relating to the appointment of the arbitrator would have come within the exception to the non-discrimination principle, based on genuine occupational requirements, discussed below. The case has been subject to significant debate.18 On the one hand, by limiting the protection of discrimination law to those who are in a subordinate working relationship, the parameters of equality law are kept within the boundaries seemingly envisaged by the drafters of the EU non-discrimination law, where the concern is with employment-focused protection, in the context of employment, access to work, training, etc. On the other hand, the case, together with the case on volunteers, can create a significant lacuna in the law, with groups of the selfemployed and volunteers vulnerable to discrimination. This is a particular concern given that any opaqueness in the law on employee status can be exploited by employers, who have at times chosen to define their relationship with those who perform work for them in ways that exclude employment protection.19 It is also a concern given that voluntary work is often a route into paid employment. Whilst it is understandable that employment protection needs some limits and cannot apply outside the employment sphere, care needs to be taken that vulnerable groups are not left unprotected and unable to access the protection for religion and belief because they remain at the margins of the employment relationship. As well as protecting areas of employment such as arrangements for interview, and terms and conditions of work, the Equality Act covers access to further and higher education.20 It also covers the operation of qualifications bodies, which have power to confer professional or trade qualifications, and prohibits discrimination in decisions on the conferral of such qualifications.21 Employment agencies are also covered,22 as are trade organisations, with a prohibition on discrimination in the terms on which a person may be admitted to the organisation, or by refusing to accept, or deliberately not accepting, an application for membership. This reflects the fact that admission to a trade organisation may give access to markets for a business, or may give particular standing to a business, the denial of which could clearly cause some detriment to a religious person. However, it may be that the blanket restriction on discrimination by trade organisations will have

18 For example, see C McCrudden, ‘Two Views of Subordination: The Personal Scope of Employment Discrimination Law in Jivraj v Hashwani’ (2012) 41(1) ILJ 30; and M Freedland and N K ountouris, ‘Employment Equality and Personal Work Relations—A Critique of Jivraj v Hashwani’ (2012) 41(1) ILJ 56. 19 See A Bogg, ‘Sham self-employment in the Court of Appeal’ (2010) 126 LQR 166; A C L Davies, ‘Sensible Thinking About Sham Transactions’ (2009) 38 ILJ 318; see also discussion in Ch 3 at p 63. 20 Equality Act 2010, ss 90–94. 21 Equality Act 2010, s 53. 22 Equality Act 2010, s 55.

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significant consequences for religious groups.23 A trade organisation is defined as an organisation of workers, an organisation of employers, or any other organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists.24 The exact meaning of the wording is somewhat unclear, but it may cover organisations such as the Association of Christian Lawyers, and the Muslim Doctors and Dentists Association, which include a faith requirement for membership. Whether or not they are covered may depend on the extent to which such organisations provide economic benefits to members such as access to networks of clients, etc. The exception based on genuine occupational requirements does not apply to trade organisations. Therefore a trade organisation that discriminates in terms of membership on grounds of religion or belief will not be exempted on the basis that the discrimination is necessary to preserve the religious ethos of the organisation.

Direct Discrimination Direct discrimination involves less favourable treatment because of religion or belief. Examples of the behaviour covered would be refusal to employ, train or promote staff on the basis of religion. Employment decisions based on stereotypical views of how those of a particular religion will behave would also be directly discriminatory.25 As the Equality Act covers both religious employers and secular employers, the definition of direct discrimination will cover the religious employer who refuses to employ a person of a different religion or a person with no religion,26 and the secular employer who refuses to employ religious people. Inconsistencies in the employment of religious staff will also be covered. For example, the employment of members of staff of one religion, coupled with a refusal to employ those of another, will amount to direct discrimination. Similarly, less favourable treatment, such as refusal of time off for religious observance for one religion whilst accommodating time off for others, would be directly discriminatory.27 Direct discrimination is defined as less favourable treatment ‘because of ’ religion or belief:28 it thus covers not only less favourable treatment because of a person’s actual religion or belief, but also treatment based on the discriminator’s perception of a person’s religion, a perception that may, of course, be mistaken. It also covers discrimination based on another person’s religion. Thus discrimination 23

I am grateful to Peter Griffith for this point. Equality Act 2010, s 57(7). 25 In Mbuyi v Newpark Childcare [2015] ET 3300656/2014, the claimant was successful in parts of her claim. The Employment Tribunal found that stereotypical assumptions had been made by the employer in the investigation of a dispute between Mbuyi and her colleague, which had little evidence to support them. This had been done because of her beliefs, and led to a finding that Mbuyi’s treatment had been directly discriminatory: Mbuyi at paras 151–58. 26 Although this may be covered by the ‘occupational requirement’ exception discussed below. 27 Holland v Angel Supermarket Ltd & Anor [2013] ET 3301005/2013. 28 Equality Act 2010, s 13. 24

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based on an association with people of a particular religion (for example, discrimination against someone married to a member of a religious group) is covered, as is discrimination based on refusal to comply with a discriminatory instruction.29 The definition of direct discrimination does not provide any general exceptions or justifications. However, specific exceptions exist where, having regard to the nature or context of the work, being of a particular religion or belief is an occupational requirement and it is proportionate to apply that requirement in the particular case.30 Thus requiring that a priest be Catholic, or that a teacher of Islam be Muslim, would not involve unlawful direct discrimination. Moreover, a slightly wider exception exists where the employer is a church or an organisation the ethos of which is based on religion or belief. The scope of these exceptions is discussed in more detail below.

Indirect Discrimination Indirect discrimination is defined to cover the application of a provision, criterion or practice in relation to religion or belief, which applies to those who do not share the religion or belief but which puts or would put persons of the religion or belief in question at a particular disadvantage compared to others, and which cannot be shown to be a proportionate means of achieving a legitimate aim.31 Indirect discrimination addresses the fact that discrimination is not always caused directly. Inherent in its meaning is the idea of disparate impact,32 the idea that certain requirements will be harder for some to comply with than others. It reflects the fact that treating everyone the same may not achieve full equality but may instead create inequality, or at least allow inequality to remain, because of a failure to recognise the difficulties some groups may have in meeting what appear to be neutral requirements.33 The disadvantages suffered by religious staff may not be that employers refuse to employ or promote them directly because of their religion; instead, difficulty can arise because it is harder for religious staff to comply with some requirements imposed at work, even though those requirements are religiously neutral and applied to all staff. For example, an employer may not refuse to employ Christians, but a requirement to work on Sundays may make it harder for some Christians to take up the employment. Similarly, a uniform for female staff that consists of a skirt and short-sleeved top would not amount to a bar on the employment 29

cf under the Race Relations Act 1976: Showboat Entertainment Centre v Owens [1984] 1 WLR 384. Equality Act 2010, Sch 9. Equality Act 2010, s 19. The wording of the Directive (Art 2(2)) is ‘where an apparently neutral provision, criterion or practice would put persons of a particular religion or belief … at a particular disadvantage compared with other persons’ unless it can be justified. 32 The concept of disparate impact discrimination was developed in the USA in Griggs v Duke Power Company 401 US 424 (1971). 33 For an overview of the development of the concept of indirect discrimination, see S Fredman, Discrimination Law, 2nd edn (Oxford, OUP, 2011). 30

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of Muslim women, but could act as a barrier to their entry into the particular employment. Protection from indirect discrimination is designed to address the neutral employment requirements which create particular difficulty for some staff. It reflects the fact that neutral rules which are generally applied can have a particularly detrimental impact on some religious groups. Clearly, such requirements are sometimes necessary, and so the concept of indirect discrimination includes an element of justification. A hospital will need to employ some staff to work on Sundays, for example, and so a requirement to work on Sundays will be capable of justification. In order to establish indirect discrimination, an applicant must show that the neutral work requirement operates to the disadvantage of the particular religious group. The fact that an employee can, in fact, comply with a requirement will not prevent a claim being made;34 the focus is on whether it is harder for the employee to comply in practice, and so the requirement puts the applicant at a disadvantage in comparison with others. Thus, Christian workers are clearly physically able to work on Sundays, but to do so may interfere with their religious observance. It is the practical difficulty in complying with a requirement to work on Sundays which would be the cause of discrimination, and any claim would not be blocked by the fact that compliance is physically possible. Although cases cannot be ruled out by the physical possibility of compliance with a work requirement, applicants will need to show that they are put at a ‘particular disadvantage’ before indirect discrimination is made out. This wording is designed to overcome the difficulties caused by earlier definitions of indirect sex discrimination, which required proof that the proportion of women who could comply with a work-based requirement was ‘considerably smaller’ than the proportion of men who could comply. This caused uncertainty over what was meant by ‘considerably’ smaller, what evidence was needed to prove this, and who should comprise the comparator group with whom the applicant would be compared.35 The wording in the Equality Act is designed to make it easier for applicants to prove indirect discrimination, requiring only that the applicant show that the requirement puts the religious person at a particular disadvantage compared to others. Exact statistical proof of the extent to which it is harder to comply is not needed, nor is there a need to find a comparator group which can be proven statistically to find it easier to comply with the requirement. Despite the attempts to make the indirect discrimination provisions more userfriendly in the Equality Act, hurdles still remain for applicants attempting to bring 34 Note that under earlier definitions of indirect discrimination contained in the Sex Discrimination Act 1975 and the Race Relations Act 1976, the applicant had to show that there was a requirement with which he or she could not comply. However, early case law decided that this covered requirements with which the applicant had difficulty complying, as well as requirements with which he or she could not comply at all: Price v Civil Service Commission [1978] ICR 27. 35 These issues generated much case law with respect to sex discrimination; eg, see Jones v University of Manchester [1993] IRLR 218; R v Secretary of State for Employment, ex parte Seymour Smith [2000] IRLR 263 HL; London Underground v Edwards (No 2) [1998] IRLR 364, HL; and Barry v Midland Bank [1999] IRLR 581, HL.

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claims of indirect discrimination. Although statistical analysis is not needed to prove the disparate impact of neutral requirements, nonetheless, applicants will still need to be able to show that the requirement causes them difficulty in comparison to others, and will need to be able to point to others in comparison with whom they are at a disadvantage. A problem with regard to showing particular disadvantage can arise with respect to the use of indirect discrimination by those who have an individualised religious belief that is not shared by others. The wording of the Equality Act suggests that before indirect discrimination can be made out, the applicant must show that a neutral requirement is imposed that puts or would put persons of the same religion at a particular disadvantage. This suggests that there must be an element of group disadvantage suffered by the applicant, and such a reading accords with the traditional view of indirect discrimination as addressing group disadvantage. The wording is the same in relation to sex and race discrimination, where it rarely creates difficulties, as there will always be others in the same group as the applicant. However, in the context of religious discrimination, this restriction is of some significance. If an individual has a personal religious or philosophical belief that makes it difficult for her to comply with a particular work requirement, it can be difficult to come within the indirect discrimination protection unless she can point to others who are also disadvantaged. This issue was raised in the domestic hearings in the cases in Eweida v British Airways.36 Eweida was a member of the check-in staff for British Airways, who was refused permission to wear a cross over her uniform, as this was in breach of the airline’s uniform policy. British Airways did allow Muslim women to wear the hijab, and Sikh men to wear turbans, on the basis that the items were required by the particular religions, and they could not be concealed under the uniform, whereas Eweida’s cross could have been concealed and she did not believe that wearing the cross was a ‘mandatory’ requirement of her religion. Eweida’s claim of indirect discrimination was unsuccessful, on the basis that the refusal to accommodate the request of a single believer was not covered by the indirect discrimination protection, as the Employment Equality (Religion and Belief) Regulations (and now the Equality Act) require a group disadvantage. The definition requires that a neutral requirement (here the requirement not to wear visible jewellery) be imposed that ‘puts, or would put, persons of the same religion at a particular disadvantage’.37 This suggested that more than one person must hold the belief. As Eweida was the only person identified in the case who held the particular belief, there could be no indirect discrimination. The result of this ruling is that individual believers who do not share their beliefs with others are not protected by the indirect discrimination provisions in the Equality Act.38 36 Eweida v British Airways [2010] EWCA Civ 80. See the comment on the EAT decision in L Vickers, (2009) 11 (2) Ecc LJ 197. 37 Emphasis added. 38 This approach is confirmed in Chatwal v Wandsworth Borough Council [2011] UKEAT 0487-10-0607.

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Ms Eweida was later successful in her claim under Article 9 ECHR,39 and it is therefore arguable that the Equality Act should now be interpreted to comply with Article 9, so that its protection extends to those individuals who are disadvantaged on the basis of their own individual beliefs.40 This can be done by a specific reading of section 19 of the Equality Act. The provision uses the plural term ‘persons with whom B shares the characteristic’ (here, religion or belief), but it prefaces this with the words ‘it puts or would put’ such persons at a disadvantage. The inclusion of the conditional ‘would put’ could mean ‘would also put persons of the same view, were there to be any, at a disadvantage’. Understood this way, the indirect discrimination provisions can be extended to individuals in the absence of a group whose members hold the same religious or other belief, in accordance with the understanding of the requirements of Article 9, for which there is no need for group disadvantage. Although this argument was put to the Court of Appeal in Eweida, it was not accepted, on the basis that ‘the argument loads far too much on to the word “would”’.41 Following the decision of the ECtHR upholding Eweida’s appeal, however, the point was further discussed in Mba v London Borough of Merton.42 The Court of Appeal in Mba recognised that the protection of freedom of religion under Article 9 ECHR does not require that the claimant first establish a group disadvantage. However, it held that this would not mean that the Directive or domestic law should be interpreted so as to enable indirect discrimination to apply to individual claimants:43 it held that the Strasbourg decision did not affect the domestic jurisdiction. It thus seems that, after Mba, group disadvantage still needs to be shown for claims of indirect discrimination under the Equality Act. However, the point was not definitively dealt with in the case, as the question of group disadvantage had been conceded on the facts; moreover, as Lord Justice Vos confirmed, this issue was not fully argued.44 The point therefore still seems to be left open, and it is arguable that despite the Court of Appeal’s approach in Eweida and Mba, indirect discrimination should cover individual disadvantage, particularly given that the parent Directive 2000/78 is worded solely in the conditional.45 There are some clear advantages to the requirement for group disadvantage;46 in particular, it would avert the danger that discrimination claims could be generated by a wide range of behaviours linked to individual beliefs.47 However, there are clear disadvantages too, not least the fact that it leaves individual believers 39

Eweida v British Airways [2013] ECHR 37, discussed in Ch 4 above. See G Pitt, ‘Taking Religion Seriously’ (2013) 42(4) ILJ 398. 41 Eweida v British Airways [2010] EWCA Civ 80 [17]. 42 Mba v London Borough of Merton [2013] EWCA Civ 1562. 43 Ibid [34]–[35]. 44 Ibid [41]. 45 See also N Bamforth, M Malik and C O’Cinneide (eds), Discrimination Law, Theory and Context (London, Sweet & Maxwell, 2008) 307–08. 46 See, eg, R Allen and G Moon, ‘Substantive Rights and Equal Treatment in Respect of Religion and Belief: Towards a Better Understanding of the Rights, and Their Implications’ [2000] EHRLR 580, 601. 47 Eweida v British Airways [2010] EWCA Civ 80 [18]. 40

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unprotected when it comes to manifesting their beliefs at work. Allowing individual indirect discrimination cases under the Equality Act would mean that the protection would accord with Article 9 ECHR and protect the manifestation of religion or belief by those who do not share their religion or beliefs with others, and who cannot make claims directly under the Human Rights Act 1998.48 Moreover, allowing indirect discrimination to be used in individual belief cases would not mean that employers would need to anticipate and then meet every wish of employees with any belief, as indirect discrimination can be always justified where proportionate. The issue of proportionality leads to a second question regarding group disadvantage that has been raised in the cases, relating to the size and make-up of any group with which a claimant should share the disadvantage. In Eweida, the Court of Appeal considered whether the group in question would need to comprise other co-workers, or just others with the same views in society at large. If the narrower view is taken, that the group must comprise other workers, then the lone believer would usually be left unprotected. However, if the broader understanding of the group is accepted, then the concern for the ‘lone believer’ may remain hypothetical, as other believers are likely to be identifiable somewhere, albeit not in the same workplace. In the event, the Court of Appeal left the question open, as no group, co-workers or otherwise, had been identified.49 The issue was returned to in Mba, where the number of believers who would need to be identified as part of the group was discussed. The Court took the view that the size of the group would not determine whether there was a disadvantage; but that the number of people affected by practice or requirement would be relevant when deciding whether any potential indirect discrimination could be justified as a proportionate means to achieve a legitimate aim. So it may be more difficult for an employer to allow requests from many individuals, for example if large numbers of staff want time off work at the same time. This means, paradoxically, that it may be relatively easy to justify refusing to accommodate requests from large groups, and more difficult to justify refusals to accommodate requests by small groups of believers.50 Yet it could equally be argued that more effort should be made by employers to remove obstacles to religious manifestation when large numbers are affected. Thus, although in Mba it was recognised that the size of the disadvantaged group may be relevant to the question of proportionality, it remains unclear exactly how this would affect the issue in any particular case.

Justification Even if a work requirement does put a person at a disadvantage, there will only be unlawful indirect discrimination where the requirement cannot be justified. 48 Although religion and belief are protected under Art 9 ECHR, individual employees in the private sector cannot make direct claims under the Human Rights Act 1998. 49 Eweida v British Airways [2010] EWCA Civ 80 [18]. 50 Mba v London Borough of Merton [2013] EWCA Civ 1562 [36].

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Once the employee has shown that a practice puts her at a disadvantage, then it is for the employer to show that the requirement is a proportionate means of achieving a legitimate aim. This means that appropriate and necessary requirements can be imposed, even though they may give rise to disadvantage to some groups. In effect, the test of justification enables any work requirements that will adversely affect the right to freedom of religion and belief to be subject to review in the light of the factual and contextual factors discussed in Chapter 3 above. The case of Azmi v Kirklees Metropolitan Borough Council51 can usefully illustrate how a restriction on religious practice can be justified as a proportionate means to achieve a legitimate aim. Here, a classroom assistant wanted to wear a face veil (niqab) when she was in the classroom with a male teacher, helping children for whom English is a second language. The EAT held that the treatment was indirectly discriminatory, as the requirement to have her face showing put her, as a Muslim, at a disadvantage. However, the court held that the indirect discrimination was justified: the restriction on wearing the niqab was proportionate given the need to uphold the interests of the children in having the best possible education; and for this they needed to be able to see the assistant’s face.52 In reaching the conclusion that the restriction on her religious practice was justified, the court noted that the school had thoroughly investigated before deciding that the restriction was necessary. For example, it undertook a review of Azmi’s teaching to see if the quality of teaching was reduced when Azmi wore the face covering, and came to the conclusion that it was; it had also investigated whether it was possible to rearrange her timetable to enable her to assist only in classes with a female teacher, and found that it was not. In relation to the question of justification, Azmi argued that insufficient effort had been made to try to accommodate her religious requirements; for example, the school could have trialled and assessed alternative ways to improve her communication and performance when wearing the niqab. The court, while agreeing that the standard of review needed to be stringent, accepted that the school’s actions were proportionate: it had investigated whether it could accommodate Azmi’s requirement to wear the niqab and concluded that it could not.53 The fact that Azmi could identify alternative accommodations that she would have preferred did not change matters. Thus, the religion and belief provisions of the Equality Act have the potential to be interpreted to give appropriate protection against religious discrimination, and to provide proper protection for freedom of religion. The extent to which it does so will depend on the extent to which courts and tribunals are able to take into account the factors discussed in Chapter 3 above when assessing whether any religious requirements imposed at work are proportionate. In particular, there is scope for the standard of justification to be developed to reflect interests other than the pure economic interests of the employer. 51

Azmi v Kirklees Metropolitan Borough Council [2007] ICR 1154. Ibid, para 74. 53 ET decision, ET Case no 1801450/06 para 22; Cited by the EAT ibid, para 67. 52

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For example, it is arguable that at times indirect discrimination may be justifiable because of the need to protect the interests of other staff. In particular, the negative aspect of freedom of religion may be important, allowing practices that aim to provide a ‘religion-free’ environment to be justified. For example, if a workplace operates in an area where there is religious tension between different groups, it may be justifiable to require a secular workplace, even though this causes disadvantage to religious interests. Or an employer may wish to project a secular image to the public. Although there may be some economic reasons for this, it may also be motivated by the employer’s own views, or the views of the majority of staff. If the rights of all parties are to be respected, it may be that the indirectly discriminatory effect of such a policy can be justified, as serving the legitimate aim of upholding the ‘rights of others’, even in the absence of a business or economic case. Conversely, the adverse effect of a requirement to work in an overtly religious atmosphere which may be experienced as a disadvantage by an atheist working for a religious employer may be justified as necessary to uphold the religious freedom of the employer. The extent to which tribunals and courts interpret the Equality Act 2010 to balance the interests of religious freedom as well as equality appropriately, may be tempered by the need for consistency as between different grounds of discrimination, as discussed in Chapter 4 above. With regard to sex discrimination, the standard of justification is very high: any requirement must have a legitimate aim, the means chosen for achieving that objective must correspond to a real need on the part of the undertaking, must be appropriate with a view to achieving the objective in question and must be necessary to that end.54 Economic cost or customer preference will not usually justify indirect sex discrimination; and if less discriminatory means to achieve a legitimate aim can be identified, the indirect discrimination will not be justified. However, as can be seen from the indirect discrimination in cases involving religion, discussed elsewhere in this chapter, courts have not subjected potential discriminatory requirements to a particularly strict level of scrutiny. Thus, the fact that Azmi was able to identify alternative measures to accommodate her religious requirements did not mean that the restriction on religious dress was unjustified. Similarly, in Ladele, discussed below, the fact that an alternative accommodation could be identified, and had been implemented by similar employers, again did not mean that the employee’s treatment was unjustified. This more moderate standard of justification review should allow the contextual issues identified in Chapter 3 to be taken into account in assessing proportionality. This allows issues such as whether the employer is a monopoly employer, whether the employer operates in the public or private sector, the socio-economic context in which the discrimination has occurred, as well as the interest of colleagues or service users to freedom from religion to be taken into account.

54

Bilka-Kaufhaus v Weber von Hartz [1986] ECR 1607.

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Proving Justification One particular matter that is likely to arise in the context of religious discrimination is the question of whether employers can justify potentially discriminatory work requirements on the basis of a general benefit, or whether they will be required to prove that the justification covers the individual worker in question. For example, a requirement that telephone switchboard staff work Monday to F riday from 9 am until 5 pm may be potentially justified on the basis that the service is needed during normal working hours, even though it may disadvantage a member of staff who needs to leave at 4 pm in the winter for religious reasons. Once a person can show that because of her religion she has suffered disadvantage, the burden of proof shifts to the employer to show that the practice can be justified. In this example the employer may be able to show that the requirement is necessary as it enables the switchboard to be fully operational during normal working hours. The question which then arises is whether the employee can require the employer to justify the imposition of the general rule in her particular case. For example, she may be able to show that there are fewer calls to the switchboard after 4 pm on a Friday, and so they can be handled by other colleagues, so that the general justification should not be applied to her. Requiring the employer to justify the imposition of the rule in the particular case will put a greater burden on the employer to justify practices that operate to the detriment of religious staff, and would create a greater degree of protection for religious interests at work. Given the often individualised nature of religious discrimination, a burden on the employer to justify requirements that disadvantage religious staff on an individualised basis might be appropriate. It would make the protection for religious discrimination more akin to that available for disability discrimination, where a duty to accommodate disability imposes a duty on the employer to make individual adaptations, where reasonable, to adjust the workplace or work practices to the individual needs of the disabled person. The question of whether there is a burden on employers to prove that a general justification applies to the case of an individual applicant was considered by the ECJ in Cadman v Health and Safety Executive55 in the context of equal pay. Here, a pay scheme that awarded enhanced pay for long service was found to be indirectly discriminatory against women, who tend to change jobs more often, or who may start careers late, and so who had less opportunity to become eligible for the higher rates of pay. The practice was justified on the basis that longer length of service and experience enables better performance of duties. It was accepted that this was capable of justifying the long service pay system. However, Mrs Cadman argued that the employer needed to prove not only that longer service could be equated to better performance, but also that in her particular case this was so: could she, for example, argue that she in fact acquired skills faster than normal, or had gained skills through alternative experience, so the general rule should not apply in her 55

Cadman v Health & Safety Executive [2006] IRLR 969.

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individual case? The Advocate General’s opinion was that to require justification as between every employee was too burdensome on employers: if a rule was justified, in general, that would be sufficient. Such an interpretation of the burden of proving that a practice is justified would mean that it would be difficult to use the indirect discrimination rules to protect against discrimination in cases where an individual’s profile does not match the norm. However, the approach was not followed in the judgment of the full chamber of the ECJ, which held that an indirectly discriminatory requirement can be required to be justified vis-à-vis the individual, once it is shown to have disparate impact, if the individual can provide evidence capable of raising serious doubts that the general justification applies in the individual case. The possibility of an individualised justification rule with regard to indirect religion or belief discrimination56 gives greater potential for the Equality Act to be effective to protect members of small or minority religious groups. However, such an approach could cause difficulties in the context of religion and belief cases, especially where justification is based not on economic reasons but on the need to protect the rights of others. If one takes the example of a ban on the wearing of religious symbols at work, the justification could be based on the religious freedom of the employer and the desire to protect the negative freedom from religion of other staff. For example, an employer may wish to promote a secular image, and to protect staff from pressure to dress in a religious manner at work. It may be difficult for an employer to be able to show that a ban on religious dress imposed on one individual member of staff is necessary to achieve the overall aim, even though at a general level such an approach may be justified. Even though it would be for the applicant to show that the general justification of the rule should not be applied in the particular case, the potential need to justify every rule with respect to every individual applicant may not set the correct balance between competing interests at stake in the workplace, particularly in the light of the fact that a workplace restriction on religious freedom is not absolute. Again, it may be that the use of standards of justification developed in the context of race and sex discrimination are not appropriate for direct transplantation into the context of religion and belief.

The Distinction Between Direct and Indirect Discrimination There has been some academic debate regarding the distinction between direct and indirect discrimination. On the face of it, the distinction appears clear: direct discrimination occurs where the less favourable treatment is because of religion or belief; indirect discrimination arises because of the use of neutral criteria that have an unequal impact in practice for reasons relating to religion or belief. However, it is arguable that the distinction is not so clear in practice,57 particularly since 56

Ibid, at paras 37–40. G Pitt, ‘Keeping the faith: trends and tensions in religion or belief discrimination’ (2011) 40(4) ILJ 384; B Hale, ‘Religion and sexual orientation: the clash of equality rights’, Comparative and Administrative Law Conference, Yale Law School, 7 March 2014. This is also discussed in A McColgan, ‘Class wars? Religion and (in)equality in the workplace’ (2009) 38(1) ILJ 1. 57

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the meaning of direct discrimination was expanded in James v Eastleigh Borough Council58 to mean that direct discrimination can occur where the discrimination is based on a factor that itself is entirely determined by the characteristic in question. In James, the factor in question was retirement age, which itself was entirely determined by gender and so was said to amount to gender discrimination. In the context of religious discrimination, some have queried whether rules such as bans on face coverings, which in practice apply almost exclusively to one religious group (Muslim women), ought, in the light of James, to be treated as direct discrimination. However, this argument was unsuccessful in Azmi,59 which confirmed that as the rule was against face covering, and applied to everyone, it was neutral in terms of religion. It is suggested that this is the correct approach. To use the terminology of Article 9 ECHR, Azmi was not treated less favourably because of her beliefs themselves, but because she wished to manifest those beliefs by wearing the niqab. Moreover, if her treatment was treated as direct discrimination, it would mean that it would be incapable of justification. Within Article 9(2) ECHR, manifestations of religion are not granted absolute protection but are protected only to the extent that they are proportionate. Given this position, it is unnecessary for domestic courts to create an absolute right to manifest religion via the rules on direct discrimination. The acceptance in Azmi that discrimination for manifesting religion is indirect discrimination creates a close fit with the scheme of protection under Article 9 ECHR, whereby religion or belief per se is granted absolute protection, and the manifestation of religion and belief receives only qualified protection.

Exceptions to the Non-Discrimination Duties Schedule 9 to the Equality Act contains a two-tier system of exceptions to the duty not to discriminate on grounds of religion or belief, where being of a particular religion or belief is an occupational requirement for the job in question. The first exception applies to all employers and is narrow in its remit. A second, broader exception is provided for organisations with a religious ethos. Schedule 9, paragraph 1(1) provides the more general exception: the non- discrimination duty does not apply where there is a requirement to have a particular protected characteristic if, having regard to the nature or context of the work— (a) it is an occupational requirement, (b) the application of the requirement is a proportionate means of achieving a legitimate aim, and (c) the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).

58 59

James v Eastleigh Borough Council [1990] 2 AC 751. Azmi v Kirklees Metropolitan Borough Council [2007] ICR 1154.

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A further exception, applicable only to religion or belief, is contained in Schedule 9, paragraph 3: an employer with an ethos based on religion or belief is permitted to discriminate on the grounds of religion or belief if it is an occupational requirement for the particular post, and having regard to that ethos, and the nature or context of the work, the application of the requirement is a proportionate means of achieving a legitimate aim. As originally drafted, in the 2003 Employment Equality (Religion and Belief) Regulations, the wording of these exceptions followed that of the EU Employment Directive 2000/78. The Directive provides an exception where the protected characteristic, such as religion or belief, is a genuine and determining occupational requirement and it is proportionate to apply that requirement in the particular case. This wording means that it is evident that the first-level exception only applies where there is a very clear connection between the work to be done and the characteristics required: the occupational requirement has to be both genuine and determining. Under this narrow exception, religious discrimination is only really likely to be lawful in the cases of those employed in religious service, whose job involves teaching or promoting the religion, or being involved in religious observance. The fact that under the EU Directive the religious requirement has to be ‘determining’ means that the religious nature of the job must be a defining aspect of the job. This can then be contrasted with the second-level exception contained in the EU Directive that applies to organisations with an ethos based on religion or belief, in which an exception needs only to be ‘genuine’, without the requirement that it be ‘determining’. This suggests a less rigorous approach in deciding whether the particular job requires a particular characteristic; and it seems to allow an employer with an ethos based on religion to require that all staff share the religion, even ancillary staff for whom religion is not a determining requirement. In the redrafting of the legislation for the Equality Act, the word ‘genuine’ was removed from the exceptions contained in Schedule 9, on the basis that it was superfluous: the argument was that an occupational requirement that is not genuine is not an occupational requirement. Equally, it was assumed that whether the requirement was determining or not would be assessed as part of the review of proportionality, and did not need stating in the legislation. Given that the Equality Act must be interpreted to accord with the EU Directive, this difference in wording between the two instruments may not be of significance. However, it is arguable that the removal of these terms, particularly the term ‘determining’, from the face of the domestic legislation has hidden from view an important distinction between the two levels of occupational requirement.60 Any occupational requirement to be of a particular religion, under paragraphs 1 or 3 of Schedule 9 to the Equality Act, must also be proportionate, a concept that is likely to be interpreted in the same way as the proportionality of any justification 60 See G Pitt, ‘Keeping the faith: trends and tensions in religion or belief discrimination’ (2011) 40(4) ILJ 384; and P Edge and L Vickers, Review of equality and human rights law relating to religion or belief: Research Report 97 (London, EHRC, 2015).

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of indirect discrimination. This will mean that the imposition of an occupational requirement must serve a legitimate aim. There will need to be a real need on the part of the undertaking to impose the religious occupational requirement, and it will need to be appropriate and necessary to impose the requirement in order to achieve that aim.61 The high standards of justification imposed by the requirement of proportionality mean that it will be necessary to consider the requirements of the job very closely before being able to use the exception. Although religious people may argue that they bring a specifically religious approach to their work, it cannot realistically be claimed that being of a particular religion is an occupational requirement for many jobs. Under Schedule 9, paragraph 1, religious discrimination is only really likely to be lawful in cases of those employed in religious service, whose job involves teaching or promoting the religion, or being involved in religious observance. The exception in paragraph 1 is relatively uncontroversial and applies to all protected characteristics. More controversial is the additional exception for organisations with an ethos based on religion and belief, contained in paragraph 3. As with the general exception in paragraph 1, here there is the requirement for proportionality, and religion and belief must still be an occupational requirement. However, in addition, regard is to be had to the ethos of the organisation and the context of the employment in deciding whether being of a particular religion or belief is an occupational requirement for the job, and whether it is proportionate. In relation to religious employers, it may be possible to argue that a workplace has, for example, a Muslim or Hindu ethos, because its staff are all from the same religion and it operates according to a religious code. Such a religious employer would be able to require that all staff share the religion, even categories of staff such as secretarial or catering staff for whom religion is not a defining aspect of the job. This type of employer does currently exist, for example religious bookshops and religious medical practices that run their workplaces according to the religious principles of the workers. Also, many religious organisations such as churches employ ancillary staff in jobs that are not religious in nature, such as administrative staff, cleaners, etc. The ethos-based exception in Schedule 9, paragraph 3 allows greater latitude to employers to create religiously homogeneous workplaces without a need to show that the religion requires workers to work in a religious environment, or clients to receive religious goods or services. A Christian solicitor’s firm might thus be able to employ only Christians, without having to make the case that being a Christian is a defining characteristic of the job. The application of the broader religion and belief exception can be seen in the Employment Tribunal (ET) case Muhammed v Leprosy Mission, where a Muslim finance administrator applied for work in a Christian charitable organisation. One of the criteria for the role was that the incumbent ‘be a practising Christian committed to the objectives and the values’ of the organisation. Mr Muhammed’s application was unsuccessful, and he claimed discrimination because of religion. 61

Bilka-Kaufhaus v Weber von Hartz [1986] ECR 1607.

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The tribunal held that being a Christian was an occupational requirement of the role. In particular, it drew attention to the fact that Christian beliefs were at the core of the employer’s activities, and Christianity permeated the organisation, with prayers starting each day. Employing a non-Christian would have a very significant adverse effect on the ability of the organisation to maintain that ethos, whereas the finance administrator who was refused a job would have had the chance to work elsewhere.62 Thus, as long as there is some religious element to the staff role, even where the work is not inherently religious in nature, the court may find religious requirements are proportionate. However although broader than the general exception in paragraph 1, the ethos-based exception in paragraph 3 is not without limitations. Any requirement must be occupational, and therefore must be linked to the job in question. It will be difficult to argue that all staff must share the religion, and a general statement that all posts should be filled by Christians, for example, is unlikely to be sufficient. Instead, each post should be considered carefully.63 For example, in a religious medical practice, it may be that one could require that the partners be Muslim, but it would be more difficult to argue this in relation to support staff. An understanding of the faith, and sympathy for its practice, could be required, but it would be difficult to show that a shared faith is necessary, unless, as in Muhammed v Leprosy Mission, religion and belief permeate every level of the organisation. For example, if all staff offer religious support to each other, or participate in common prayers or other religious observance, then it can be proportionate to require a common religion across the workplace. However, a mere preference for working with those of the same religion will be unlikely to be sufficient. Clearly, religious requirements that are used as a cover for other forms of discrimination will not be exempted.64 Nor should employers impose additional religious duties on staff in order to enable them to employ co-religionists.

Religious Requirements that Discriminate on Other Grounds At times, religious requirements that may satisfy the exception for occupational requirements, will come into conflict with other rights created under the Employment Equality Directive or other anti-discrimination provisions. In the Directive, Article 4(2), concerning the additional exception for religious ethos organisations, contains a specific statement that the use of the genuine occupational requirement by a religious organisation ‘should not justify discrimination on another ground’. Similarly, under the Equality Act, the fact that a religious requirement may be 62

Muhammed v The Leprosy Mission International ET Case no /2303459/09. Hender (Louise) v Prospects ET Case no 2902090/2006; Sheridan (Mark) v Prospects ET/Case no 2901366/2006, both 13 May 2008. 64 For example, although Christianity is not a white-only religion, a requirement that employees be Christian in areas with high Asian Muslim or Hindu populations would be likely to generate a largely white workforce, and so could be used as a cover for race discrimination. Clearly, where this is the case, the exception in para 3 would not apply. 63

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allowed as an occupational requirement does not act as a defence to any claim on other grounds of discrimination. For example, an employer who sets religious observance as a preference in making an appointment in order to maintain the religious ethos of the organisation (under Schedule 9, paragraph 3 to the 2010 Act), may indirectly discriminate on grounds of sexual orientation where the religion in question is hostile to homosexuality. Religious prohibitions on divorce or cohabitation outside marriage could lead to indirect discrimination on grounds of marital status.65 A preference for workers to share an employer’s faith, which includes a belief that women should not work, will involve indirect sex discrimination as women of that faith are unlikely to apply. Any attempt to justify such treatment will need to meet the high standards required to justify indirect sex or sexual orientation discrimination, and it is rarely going to be proportionate. The net effect is that where indirect discrimination on another ground results, the creation of religiously homogeneous workplaces is not allowed. For example, partners in a Christian legal practice who believe that homosexuality is incompatible with biblical teaching will not be protected if they refuse to engage a homosexual partner. It may be possible, in specialised circumstances, for indirect discrimination caused by the creation of religious ethos organisations to be capable of justification, bearing in mind the contextual and other factors that courts or tribunals may take into account in determining proportionality. It was suggested in C hapter 3 that discriminatory religious groups should at times be allowed to retreat from mainstream society to create ‘islands of exclusivity’,66 remaining free to enter into employment relationships with others of the same faith, and without being required to provide employment for those of other religions or lifestyles. However, only where they have retreated from general society to their ‘island of exclusivity’ should it be proportionate to discriminate indirectly on other grounds. For example, a religious group that believes that men and women should not work together might wish to employ only co-religionists, and this will indirectly discriminate against women. In assessing justification, the factors suggested in C hapter 3 should be taken into account: members of the religious group will find it very difficult to work elsewhere, as their refusal to work with women makes them virtually unemployable in the secular world; and if the employer is a small private employer, made up only of co-religionists, there is likely to be an absence of economic harm to women generally; thus the harm caused is largely ‘bare knowledge’ offence, as discussed in Chapter 3, caused by the fact that a practice that is generally viewed as unacceptable is being tolerated within society.67 In such very limited

65 Discrimination on grounds of marital status per se is not unlawful in the UK. Discrimination against those who are married or in a civil partnership is unlawful under the Equality Act 2010. This means that discrimination on the grounds of being single, for example, remains lawful. 66 A Esau, ‘“Islands of Exclusivity”: Religious Organizations and Employment Discrimination’ (1993) 33 Univ British Columbia LR 719. See discussion in Ch 3 at p 94. 67 See discussion at pp 74–79 above.

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c ircumstances, it may be that the discrimination could be viewed as proportionate, in order that sufficient religious freedom is to be enjoyed by religious groups whose beliefs may conflict with the norms of the rest of society in terms of respect for the dignity and autonomy of others. Discrimination on other grounds will usually not be proportionate, particularly where employers have access to the public market and expect to gain economically from interaction with wider society. In the vast majority of cases, then, although the Equality Act allows for occupational requirements to be imposed by religious employers in order to maintain the religious ethos of the organisation, such requirements will not be lawful if they result in indirect discrimination on other grounds. Thus a Christian medical practice that would not employ gay Christian doctors, or a Muslim solicitor’s firm that will not employ a lesbian Muslim, will usually not be acting lawfully. The requirement to be Christian or Muslim may be lawful, but the indirect sexual orientation discrimination will be very difficult to justify.

Special Exceptions for those Employed for the Purposes of an Organised Religion Although where a religious occupational requirement discriminates directly on other grounds it will be unlawful, a further exception is provided in Schedule 9, paragraph 2 to the Equality Act, to cover employment ‘for purposes of an organised religion’. This is limited to restrictions that engage the compliance principle (imposed so as to comply with the doctrines of the religion) or the non-conflict principle (so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers).68 Where the compliance principle or non-conflict principle applies, there is no additional need to show that it is proportionate to apply the occupational requirement. These exceptions to discrimination on grounds of sex, sexual orientation, being a transsexual person, not being married or not in a civil partnership, etc69 apply only to the appointment of religious personnel for the purposes of an organised religion. This refers to the appointment of clergy, or their equivalent for other religious groups. Thus it will cover the appointment of religious leaders, both where the religion prohibits homosexual practice and where the religion itself tolerates it but many within the faith do not. For example, this would apply to the Catholic Church, where it is a doctrine of the religion that only men can act as priests. Concerns that this provision could cover a wide range of workers employed by religious organisations, such as teachers or nurses in religious foundations, were alleviated by the decision of the English High Court in the Amicus case,70 which limited the words ‘for the purposes of an organised religion’ to the appointment 68

Equality Act 2010, Sch 9, para 2(5) and (6). Equality Act 2010, Sch 9, para 2(4). 70 R (on the application of Amicus-MSF and others) v Secretary of State for Trade and Industry and others [2004] IRLR 430. 69

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of religious leaders and teachers such as priests and imams. Discrimination on grounds of sexual orientation in any other context will be unlawful. The provisions have been tested in two ET cases. First, in Reaney v Hereford,71 a Christian youth worker was denied employment as a diocesan youth officer because the Bishop did not believe his lifestyle would remain compatible with the church’s teachings on homosexuality. In accordance with the beliefs of a significant number of Christians about the appropriate lifestyle for a gay Christian, the Diocese required that the youth officer comply with a requirement to be celibate for the duration of the post. The applicant’s work was to involve some ‘face-to-face’ youth work, and the case confirmed that the sexual orientation exception could be applied in this context, particularly given that he would be promoting religion in addition to simply carrying out youth work. However, the church lost the case, because the tribunal held that the Bishop was unreasonable in his belief that the applicant would not meet the requirement to remain celibate whilst in the post. The second ET case, P emberton v Inwood, Acting Bishop of Southwell and Nottingham,72 involved employment by the National Health Service (NHS) rather than by an organised religion directly. However, employment in the position in question required a licence from the Bishop, and so the case was brought under the provisions covering discrimination by bodies granting qualifications.73 The Tribunal ruled that for the purposes of the Equality Act, the Bishop was a qualifying body. However, the relevant provisions were also subject to the exception contained in Schedule 9, paragraph 2. The case involved the refusal by the acting Bishop to grant the licence/authorisation required to allow Pemberton to take up a position as a hospital chaplain, after his marriage to his same-sex partner, contrary to the current teaching of the Church of England. Pemberton claimed that the refusal of the licence was discriminatory on grounds of sexual orientation. However, the ET ruled that Schedule 9, paragraph 2 applied: whilst the work itself was for a secular employer (the NHS Trust), the employer required that, for this particular position, the employee be authorised by the Church of England. In effect, then, although employed by the NHS Trust, the employee was to work in the role of a Church of England priest, and was thus employed for the purposes of an organised religion. Moreover, the teaching of the Church of England on same-sex marriage for its clergy is very clear. There was a requirement not to enter into a same-sex marriage contrary to the teaching of the Church of England as it applies to its clergy; and a second requirement to be obedient to the rules of the Church. These requirements were imposed so as to comply with the doctrines of the religion, and so the provisions of Schedule 9, paragraph 2 were met. It is arguable that the employer, a public sector body, should not be able to use the exception provided for the Church. However, the question of whether NHS hospital trusts should employ religious chaplains was not in issue in the case. Once the ET determined that the 71

Reaney v Hereford Diocesan Board of Finance ET Case no /1602844/06. Pemberton v Inwood, Acting Bishop of Southwell and Nottingham ET Case no 2600962/2014. 73 Equality Act 2010, s 53. 72

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situation was covered by the Schedule 9, paragraph 2 exception, the result seemed fairly inevitable, given the wording of paragraph 2. The interpretation of the Schedule 9, paragraph 2 exception in Reaney and Pemberton shows that the courts and tribunals are very careful in their application of the provisions, which create permission for religious organisations to discriminate on grounds of sex and sexual orientation. They have paid close attention to the extent to which the work is religious in nature, and the exception has only been applied in cases that involve either direct work as a priest (albeit for a secular organisation), or work very closely aligned to that. Moreover, in Reaney the ET applied an objective test in assessing the reasonableness of the employer’s belief that the requirement was not met.74 It seems from the case law, then, that, as suggested in Amicus, the exception is not accepted lightly, and would not be applied to teachers or health workers in religious foundations, for example. There may be some question about whether the ‘organised religion’ exception accords with the terms of Article 4 of the EU Directive,75 particularly given the absence of a requirement for proportionality. However, it would seem that the rule as applied in practice accords with the ECtHR case law on Article 9 ECHR. This case law is clear that where an employee is playing a key role in the group’s manifestation of religion (for example, carrying out religious rites), the autonomy of the religious group should be accorded great weight when set against other interests.76 This suggests that a requirement relating to sex or sexual orientation that is applied by a religious group in order to comply with religious doctrine77 would probably be judged to be proportionate if the EU Directive is to be interpreted to accord with the provisions of the ECHR. Nonetheless, it is quite arguable that the special exception for the appointment of clergy (and their equivalents) was unnecessary, as requirements relating to the sexual orientation of religious personnel would have been covered in any event by the general occupational requirement provisions of Schedule 9, paragraph 1. It would be expected that where a church chooses to restrict employment of priests to heterosexuals, in order to comply with religious doctrine, such a requirement would be found to be proportionate: having regard to the nature of the employment (being a priest), being heterosexual would be an occupational requirement, and it would be proportionate to apply that requirement in the particular case, particularly if freedom of religion of the adherents, and the religious autonomy of the religious group, were to be taken into account in assessing proportionality. The extension of the exception beyond the compliance principle, to encompass the need to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers, can be criticised as both imprecise 74

See discussion below at p 184. See discussion in Ch 4 at pp 148–149. 76 See, eg, Hasan v Bulgaria App no 30985/96, (2002) 34 EHRR 55; Serif v Greece App no 38178/97 (2001) 31 EHRR 20. 77 Or to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers. 75

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and as providing too broad an exception to the non-discrimination principle. For example, it is not clear what will amount to ‘a significant number of followers’, and it could be argued that exceptions should not be given to cover religious convictions that do not amount to the tenets of a religion. However, the wording reflects the need adequately to protect the religious autonomy of religious adherents, and the fact that not all members of a religious group will have exactly the same views on issues of sexuality and gender. For example, the Anglican Church accepts the ordination of both women and gay clergy, but recognises that this is not accepted by all Anglicans. The wording of the provision means that an Anglican church can specify in appointments that it would prefer to have a male priest, even though this is not ‘required’ by the tenets of Anglicanism. If freedom of religion is to be protected at an individual level, this must be the correct approach, as the alternatives are less attractive. One alternative is to restrict the protection to those who agree with the mainstream teaching of a religion, thereby failing to protect the freedom of religion of minorities within faith groups. The second alternative is, for e xample, to allow Anglicans who reject the ordination of women to argue that this is a tenet of their religion (even if not of other Anglicans). This could give rise to difficulties for tribunals, which may then be drawn into decisions regarding the true tenets of a religion, questions that are not appropriate for decision by secular courts. The provision of a special exemption for religious bodies to the non-discrimination principles of the Equality Act clearly gives special treatment to religious bodies. Concerns about special treatment were more acute when they included the possibility that the provisions could be used to cover non-religious posts, such as teachers or nurses in religious foundations. However, once restricted to the appointment of religious leaders or clergy, any special treatment becomes more apparent than real: a gender or sexual orientation requirement imposed on the appointment to religious office would come within the general ‘occupational requirement’ in any event. In fact, it may be that the ‘special treatment’ will work to reduce the extent to which religious convictions can be used to justify the imposition of requirements relating to sexual orientation or gender in the name of religion or belief. Left to develop freely, the argument that respect for religious belief can justify indirect discrimination on grounds of sexuality or gender might have led to broader exceptions for religious ethos organisations. However, by creating a special exception to recognise this religious argument, but then restricting its use to the appointment of clergy or their equivalent, the use of the argument that sexual orientation or gender discrimination is needed to protect religious interests has been strictly curbed. Of course, the need to protect religious freedom can still be used to argue for exemption, but its specific recognition and restriction in Schedule 9, paragraph 2 may make it much harder to do so successfully. The legislation78 as interpreted in 78 See also the Explanatory Notes to the Equality Act, which stress that the exception is ‘intended to cover a very narrow range of employment: ministers of religion and a small number of lay posts, including those that exist to promote and represent religion’.

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Amicus, Reaney and Pemberton provides a clear steer that religious convictions can only be used to justify discrimination on grounds of sexual orientation or gender in the strictly limited circumstances of the appointment of clergy79 or others carrying out what are clearly religious functions.

Exceptions to Non-Discrimination in Northern Ireland The FETO does not apply to ministers of religion, nor to the recruitment of teachers, and special provisions apply to appointments to the police force. The exception for clergy meets the requirements of Article 4 of the Directive, as it is clear that discrimination on religious grounds will be proportionate in such circumstances. In relation to the police and the recruitment of teachers, this is provided for under the special provisions of Article 15 of the Directive, to reflect the under-representation of one of the religious communities in the police force, and to maintain the balance of employment opportunities for teachers in Northern Ireland. Article 70 of FETO also provides a more general exception where ‘the essential nature of the job requires it to be done by a person holding, or not holding, a particular religious belief ’. Unlike the exceptions provided in the Directive and the Equality Act there is no requirement of proportionality, and thus the FETO exception is more narrowly drawn than that under Article 4 of the Directive and Schedule 9 to the Equality Act.80

Determining Whether a Person Meets a Religious Requirement In addition to showing that the religious requirement is an occupational requirement and that it is proportionate in the particular case, the Equality Act states that it must also be the case, when justifying the discriminatory treatment, that ‘the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it)’.81 This addresses the fact that for some grounds of discrimination, it may be difficult to determine for certain whether someone complies with an occupational requirement. It may be clear that a female applicant does not meet a requirement to be male, but it may not be clear that a person does not meet the religious requirements of an organisation. A person could claim, in good faith, to be of a particular religion (for example, he could be baptised into the Catholic Church, but not attend church regularly), but the employer may disagree that the individual is of the required religion. Without this additional provision, it is not clear how an employer can determine whether the person complies with the requirement set. 79

Or the equivalent of clergy for other religions. In evidence to the House of Lords Select Committee on the EU, the former chairman of Northern Ireland’s Fair Employment Commission said that Art 70 had not led to any cases of any significant difficulties (HL Select Committee on the EU, 1999–2000, 9th Report, para 110). 81 Equality Act 2010, Sch 9, para 1(1)(c). 80

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The provision also addresses the problem that the question of whether or not the applicant complies with the faith could be determined by fine theological judgements, on which even the parties do not agree. Again, the applicant may be of the view that he complies, but the employer may disagree. In such circumstances, the legislation allows the matter to be determined by the employer, as long as in the circumstances the assessment is reasonable. In Reaney,82 the ET took a rigorous approach to assessing the reasonableness of the employer’s belief that an occupational requirement had not been met. The test used was not whether the Bishop’s conclusion was capable of being reasonable, or was ‘within a range of reasonable responses’,83 but instead was objective and determined by the members of the tribunal. They considered in detail the reasoning of the Bishop in reaching his conclusion that the applicant did not meet the requirement to be celibate for the duration of the post, and decided that the Bishop’s belief on the matter was unreasonable. It could be said that the section creates too much discretion for employers to discriminate. A reliance on the reasonable view of the employer, even objectively assessed, runs the risk of employees being discriminated against on the basis of prejudice masked as religious scruple. However, it is not clear whether any alternative would improve matters. If tribunals were to decide whether staff meet the religious requirements of the employer, they might end up involved in determining complex issues of religious doctrine. Allowing employees to decide whether they meet a requirement would not accord with the treatment of other job requirements, where the employer decides whether the applicant has the qualifications for the job. Given the lack of viable alternatives, leaving the question to the employer, limited by the requirement that any decision must be reasonable, is probably the best answer to what could otherwise be a vexed question. In Northern Ireland the question of how to determine the religion of applicants has arisen in the context of monitoring the religious make-up of the workforce and determining eligibility for the affirmative action programme in the police. In this context, the determination is made by the employer. Under the Police (Northern Ireland) Act 2000,84 the Chief Constable had to appoint, from a pool of qualified applicants, one half from those treated as Roman Catholic, and the other half from those not so treated. In deciding who should be treated as Roman Catholic, candidates were asked to self-designate. If they chose not to, the Chief Constable could use the ‘residuary method’ of deciding to which community the individual belonged, using surnames, schools attended, sporting or leisure pursuits and addresses.85 The provisions of the Police (Northern Ireland) Act were challenged as incompatible with the ECHR, but the claim was unsuccessful: the provisions were a proportionate interference with religious freedom because of the long-standing problem of imbalance in the police force.86 The use of the residual method of 82

Reaney v Hereford Diocesan Board of Finance ETCase no /1602844/06. cf the tests of reasonableness used in unfair dismissal cases discussed at pp 223–224. 84 This legislation lapsed in 2011, following a review of the legislation. See discussion at p 80 and 106. 85 The types of information suggested to be used to determine an individual’s community are specified in Sch 3 to the Fair Employment (Monitoring) Regulations (Northern Ireland) 1999 (SI 1999/148). 86 Re Parsons’ Application [2003] NICA 20. 83

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determining religious affiliation, where an individual has not self-designated, does appear open to the use of stereotype, but it was accepted in Re Parsons’ Application.

Ascertaining an Organisation’s Religious Ethos The Equality Act is reasonably clear on how a tribunal should determine whether a person has a particular religion, but is less clear on how to determine an organisation’s religious ethos, even though the existence of an ethos based on religion or belief is key to deciding whether refusal to employ a non-believer is proportionate. The term ‘ethos’ is not defined, but it may be expected to refer to the culture and values of an organisation, as well as to its identity and how it organises itself. In many cases the issue will be clear: a publisher that publishes Christian teaching and devotional materials, and which starts each day with staff prayers, could reasonably be presumed to have a Christian ethos; and a Hindu charity should easily establish a religious ethos. However, difficulties may arise in determining whether an organisation has an ethos, and questions may arise about how strong that ethos needs to be before an employer can rely on it to determine whether a refusal to employ someone who shares the religion or belief is proportionate or not. In some cases the ethos will be stated within the employer’s documentation, such as a company’s memorandum and articles of association, or a charity’s objects. It could also be well documented in an employer’s human resources policies, such as statements of values or vision statements. In assessing whether it is proportionate to rely on the ethos of an organisation to limit non-discrimination rights, courts may also want to consider the practices of the organisation and the extent to which religion or belief permeates the organisation in practice.87 In some cases, discrimination may occur within one religious tradition. For example, a Catholic charity wishing to employ Catholics will discriminate against Protestant Christians as well as non-Christians; and an Anglican church that does not acknowledge the priesthood of women will discriminate if it refuses to employ an Anglican who supports the ordination of women. Whether such discrimination is proportionate ‘having regard to’ the religious ethos of the employer is unclear. A tribunal could take the view that the Christian ethos will be adequately maintained in both cases by the appointment of a person who shares the same general religion (in this case, Christianity). Thus any refusal to employ would be discriminatory, as it would be disproportionate having regard to the organisation’s religious ethos. Alternatively, it could be argued that the employer and employee do not share the same religious ethos, despite both being Anglican Christians, and that the need to respect the religious ethos of the organisation justifies the religious discrimination involved in the refusal to employ. Which approach is taken will depend on how many shades of religious opinion tribunals are prepared to recognise. As with the determination of a person’s own religious views, if full protection for religious 87 See

Muhammed v Leprosy Mission at pp 176–177.

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freedom is to be given, tribunals should err on the side of recognising many different shades of religious opinion. The fact that religious groups identify as having a separate religious ethos from others within the same religion should be sufficient to determine that such a religious ethos exists. Individuals should be taken to adhere to a religion or belief, even though they dissent from a majority religious view. Allowing the individual to determine his or her religious identity in this way gives maximum protection to individual freedom of religion. Objectivity can be introduced into the equation by the need for any religious ethos requirement for the job to be proportionate, rather than by the refusal to recognise the subtleties and intricacies of religious difference.

Victimisation The Equality Act not only protects against direct and indirect discrimination, but also provides protection for those who suffer victimisation for making use of its provisions. Victimisation occurs where a person is subjected to a detriment for bringing proceedings, or giving evidence in connection with proceedings, under the Act, alleging that the Act has been contravened, and for doing ‘any other thing for the purposes of or in connection with’ the Act.88 Protection is only lost if an allegation is neither true, nor made in good faith.89

Harassment A last form of conduct prohibited by the Equality Act is harassment. The definition of this behaviour is as follows: (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to [religion or belief], and (b) the conduct has the purpose or effect of— (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … (4) In deciding whether conduct has the effect referred to … each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.90 88

Equality Act 2010, s 27. Equality Act 2010, s 27(3). 90 Equality Act 2010, s 26(1) and (4). 89

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Harassment is an area, like justification of indirect discrimination, where a common definition for all protected grounds may not produce the best protection for religious interests.91 A number of difficulties in creating a right not to be subjected to religious harassment can be identified. The first is that as well as the ‘victim’ of harassment having a right to be free from harassment, both the ‘victim’ and the ‘harasser’ enjoy the right to freedom of religion. At times these rights will conflict. For example, an employee who, for religious reasons, tells others that she believes their lifestyles to be sinful,92 could be exercising the right to manifest her religion, and the right to free speech, but could simultaneously cause offence. Of course, where rights conflict, the exercise of freedom of religion is only protected where it is proportionate to do so, and a court could find that restrictions in cases such as these are proportionate. Nonetheless, it is clear that the presence of a ‘right to freedom of religion’ may act as a complicating factor in cases of religious harassment. Another difficulty is that religious harassment can arise from both religious speech and ‘secular’ speech, and from religious staff or non-religious staff. For example, in the USA, a Catholic employee, motivated by her religious beliefs, decided to wear a badge with a picture of an aborted foetus on it,93 behaviour which her colleagues found offensive. The conduct of the employee was not overtly religious, but it nonetheless accorded with the definition of religious harassment.94 Those harassed were not religious, but her behaviour was related to religion. Although the definition of harassment contained in the Equality Act is common to all grounds of discrimination, it is possible to interpret it to take into account the range of competing interests that arise in the specific context of religious harassment. Harassment at work can cover a wide range of conduct. The archetypal case of harassment would probably involve making rude or offensive comments about religious dress, religious beliefs or religious practices. The perpetrators are usually colleagues who are either aiming to create a hostile environment or merely careless about causing offence, and who are doing so by speech or action. In more severe cases harassment can go beyond verbal attacks to comprise physical assault. As well as harassment related to a victim’s actual religion or belief, the wording is broad enough to cover harassment related to the harasser’s perception of a person’s religion, a perception which could be mistaken. It would also cover harassment related to a person’s association with people of a particular religion. 91 For a full discussion of religious harassment, see L Vickers, ‘Is All Harassment Equal? The Case of Religious Harassment’ (2006) 65(3) CLJ 579; see also M Pearson, ‘Offensive expression and the workplace’ (2014) 43(3) ILJ 429. 92 See, eg, Haye v London Borough of Lewisham ET Case no 2301852/2009, discussed at p 211 below. 93 Wilson v US West Communications 58 F 3d 1337 (1995). She was dismissed, and the dismissal was held to be lawful. 94 The religious employee (‘A’) had subjected the non-religious person (‘B’) to harassment because she had engaged in unwanted conduct related to religion (the badge-wearing was religiously motivated), which had the effect of creating an offensive environment for B. See Equality Act 2010, s 26(1) above.

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For example, a worker could be harassed because his child has converted to a new religion. Moreover, it is not limited to harassment of a religious person by a person of no religion, or vice versa. It could also cover harassment by a person of the same religion as the victim, but whose interpretation differs. For example, an evangelical Christian could persistently attempt to persuade another Christian of the correctness of her version of the faith; or a Muslim who does not wear a headscarf could harass a Muslim colleague who does. It is not clear from the definition whether harassment includes harassment related to the harasser’s religion or only harassment related to the victim’s religion. It would seem that religious harassment can occur where the ‘perpetrator’ is uninterested in the victim’s religion but is interested in promoting her own religious views. One example is the badge-wearing case discussed above; another would be a strict Catholic who creates a hostile environment for a non-religious colleague who has remarried after divorce. Here the harassment is related to religion: not the religion of the victim, but that of the harasser. If a hostile environment is thereby created, even if not intentionally, then religious harassment will have occurred in accordance with the definition in the Equality Act. In order to come within the definition of harassment, unwanted conduct must have the purpose or effect of violating dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim. These terms are not themselves defined, and are somewhat opaque. The idea of human dignity refers to the intrinsic, incomparable and indelible worth of all individuals. Respect for this human quality should mean that the individual should not be treated as of less worth than others. Although it may lack clear content, using the concept of dignity to define the meaning of harassment can be useful; it suggests that where a person subjects another to treatment which communicates to them a lack of worth, this can be actionable. Moreover, the very lack of clear content in the term ‘dignity’ can also mean that it can be interpreted in a way that takes into account the various conflicting interests that may arise in harassment cases, such as the need to maintain the rights and freedoms of others, as well as the dignity of all members of staff. For example, in assessing whether dignity has been violated, a tribunal may consider the nature of the offence caused: harassing behaviour is more likely to violate dignity where it mocks the religious views of the ‘victim’, than if it seeks to engage in debate about religious issues. The second form of harassment, creating an ‘intimidating’, ‘hostile’ or ‘degrading’ environment, suggests that fairly high levels of harm to the victim will need to be caused. The alternative terms ‘humiliating’ and ‘offensive’ are suggestive of a more subjective understanding, and leave open the possibility that the victim could be humiliated or offended by behaviour that others may not understand to be harmful. The fact that the question of whether an intimidating, hostile, degrading, humiliating or offensive environment is created may be contested is addressed by section 26(4): account should be taken of the victim’s perception of the conduct in question, but an objective ‘reasonableness’ standard is retained to protect against unreasonable claims of harassment by hypersensitive victims.

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The reference to the perception of the victim means that the test has a subjective element, and it is likely that victims will be able to claim that conduct is unwanted or offensive when it comes from one person, even though the same conduct was inoffensive or acceptable when it came from another.95 Moreover, it would appear that a single incident, if severe enough, will be capable of creating an intimidating, hostile, degrading, humiliating or offensive environment.96 The use of a subjective element in the test of ‘offensiveness’ is particularly appropriate in the context of religious harassment, given the relative lack of shared or established understanding of the likely effects of certain behaviour on religious people. In relation to sexual and racial harassment, some common understanding of racial and sexual harassment issues has developed over time: in Insitu Cleaning v Heads, the EAT had no hesitation in saying that references to a man’s bald head could not be equated with a coarse reference to the size of a woman’s breasts.97 It was able to call on common understandings of the level of offence likely to be caused. This may not be clear in the case of religious harassment. If it is not certain whether a set of views even constitutes a religion, it is unlikely to be clear in some cases whether particular behaviour would cause offence, or whether the religious adherent is being unduly sensitive. For example, calling a set of beliefs a ‘cult’ might be understood by some to be highly offensive, but may be no more than mildly irritating to others. Moreover, even within mainstream religions, different adherents will have very different views. For example, whether or not explicit discussion of abortion would offend would vary from Christian to Christian, as well as between those of different faiths: a tribunal could not rule with any certainty whether a person who was offended was being ‘unduly sensitive’ and taking offence too easily.98 Circumstances that may affect the reasonableness of a victim’s response include the need to adequately protect the freedom of speech and freedom of religion of all parties; the need to promote inclusion, diversity, tolerance and dignity at work;99 and whether the speech was intended to hurt the victim, or was part of

95 Such an understanding was developed in relation to sexual harassment under the previous framework for protection: Wileman v Minilec Engineering [1981] IRLR 145, EAT. 96 Again, a similar understanding was developed in relation to the earlier law on sexual harassment: Bracebridge Engineering v Darby [1990] IRLR 3 (sexual assault); Insitu Cleaning v Heads [1995] IRLR 4 (offensive name calling). 97 Insitu Cleaning v Heads [1995] IRLR 4, 9. 98 This may not only be a problem for lesser-known religions. Indeed, it may be that tribunals will assume that they know what will be offensive to those of the dominant Christian religion, thus failing to give due regard to the ‘particular perceptions’ of the victim. It is notable that some of the judges in Williams v Secretary of State for Education and Employment [2002] EWCA Civ 1926 (Buxton LJ in the CA, and Elias J in the first instance hearing) were prepared to determine what was and what was not required of Christianity, rather than considering the religious views of the particular claimants before them. It is unlikely that an English court or tribunal would assume expert knowledge of any other religion. 99 See S D Jamar, ‘Accommodating Religion at Work: A Principled Approach to Title VII and Religious Freedom’ (1996) 40 New York Law Sch LR 719 on the factors to take into account in assessing harassment cases.

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more general speech that was overheard by the victim. The ethos of the workplace could also be a relevant circumstance. The definition of harassment makes no mention of employer ethos, but where the employer has a religious ethos, this is likely to be relevant. For example, if a religious person who is sensitive about the drinking of alcohol and sexual behaviour in public decides to work in a night club, she will not be able to expect the same level of sensitivity to her particular religious needs as if she works for a religious bookshop. Conversely, if such an employee chooses to work for an organisation that shares her religion, she may be able to expect greater protection of her religious sensitivities.100 A final circumstance that may be relevant to the question of whether it is reasonable to treat the conduct as creating an offensive environment is whether the behaviour is intentional or not. Harassment does not have to be intentional to be unlawful. The conduct need only have the effect of violating dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment. Where such an environment is caused unintentionally, a tribunal could find that, in the circumstances, it is not reasonable to find that the hostile etc. environment was created. Or in determining whether the victim’s dignity is violated, a tribunal could take into account whether the conduct was intentional. Where offence is directed at the ‘victim’ with the purpose of offending, it will be more likely to violate dignity. Where offence is unintentional, there is no purpose to violate dignity, and a tribunal may find that no violation of dignity actually arose. The case of Heafield v Times Newspapers101 illustrates how some of these issues can interact. The appellant was working as a sub-editor at The Times during the Pope’s visit to the UK in 2010. One evening, while chasing up a delayed article about the Pope, the editor shouted across the newsroom ‘What’s happening to the fucking Pope?’ Heafield, a Roman Catholic, was offended by this, and brought a claim of harassment against the newspaper, but was unsuccessful at the ET and the EAT. Although the conduct was unwanted, it did not have the purpose or effect of violating Heafield’s dignity. In relation to its purpose, as there was no reason for the editor to know that Heafield was Catholic, there was clearly no purpose to offend or cause a hostile or offensive environment. In relation to its effect, the EAT took the view that even if Heafield felt it created a hostile environment, this reaction was not reasonable, and the harassment claim failed. In reaching that conclusion, the EAT referred to the fact that the conduct was not intended to offend, it was not directed at the Pope, and neither was it anti-Catholic. The case shows that there is sufficient flexibility in the terminology used in the definition of 100 In relation to sexual or racial harassment there are rarely going to be circumstances where the tribunal holds that the choice to work in the particular environment negates the claimant’s claim. The right of the workers to be free from racism and sexism at work is more important than any ‘right’ of harassers to express themselves as they choose. However, in cases involving religion, the competing interest in freedom of religion means that the ‘harasser’ may indeed have an interest in the freedom of speech. See L Vickers, ‘Is All Harassment Equal? The Case of Religious Harassment’ (2006) 65(3) CLJ 579. 101 Heafield v Times Newspapers [2013] UKEATPA/1305/12/BA.

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arassment for courts to be sensitive to context in their interpretation. In this case, h bad language had been used in the context of a busy newsroom, and the EAT took the view that a reasonable person in Heafield’s position would have understood the context and made allowances for it. A second example of concerns with regard to religious harassment in the work context can be seen in relation to proselytism at work. This could involve harassment, but could also form part of the right to manifest religion held by employers and employees. It is easy to envisage that proselytism could give rise to religious harassment. While simple conversations about religion or belief are unlikely to amount to harassment, if they persist once it has been made clear that they are unwelcome, it is possible that they could come within the definition: the religious employee will have engaged in unwanted conduct with the effect of creating an intimidating or offensive environment for the other person.102 Of course, a similar problem could occur with sexual harassment if an individual were to persist in asking a colleague for a date, despite its being made clear that this was not welcome; but in the case of the proselytiser, the ability to spread one’s faith may form part of the right to religious freedom, leading to a clash of interests that is absent in the sexual harassment example. However, although the right to manifest religion does cover ‘bearing witness’ and proselytism, any such right is not absolute, and is limited where it is improper.103 Proselytism will be improper if it interferes with the rights of others to be free from harassment at work, and the fact that rights to religious freedom are engaged need not prevent a finding of harassment. Some cases involving sharing of faith and proselytism in the work context are discussed below.104 While it forms an important part of the protection of religious interests at work, the prohibition of religious harassment involves a number of difficulties that do not apply to harassment on other grounds, in particular because in some circumstances, the speech or conduct that may violate dignity or cause offence may itself be protected as the exercise of religious freedom. This is particularly the case where harassment arises in the context of religious discussions at work. These difficulties can be overcome by careful and purposive interpretation of the harassment provisions of the Equality Act to reflect the competing interests in freedom of religion, freedom of speech and the need for dignity of all staff.

Positive Action Sections 158 and 159 of the Equality Act allow for positive action to be taken in relation to the workplace. This provides that action in relation to recruitment and promotion,105 or more generally,106 can be taken where the employer reasonably 102

Equality Act 2010, s 26(1). Kokkinakis v Greece [1993] 17 EHRR 397. See e.g. discussion of Chondol v Liverpool City Council [2009] UKEAT 0298/08 below 210. 105 Equality Act 2010, s 159. 106 Equality Act 2010, s 158. 103 104

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thinks that persons who share a religion or belief suffer a connected disadvantage; or where participation in activities by those who share a religion or belief is disproportionately low, or where they have different needs to others. This allows employers to take action to enable or encourage those with a particular religion or belief to overcome or minimise any associated disadvantage, or meet any associated needs.

Applying the Equality Act 2010 to the Workplace Areas where the Equality Act 2010 is likely to have an impact will be considered in turn below. These are requests for time off for religious observance; the imposition of dress codes; the display of religious symbols at work; the use of lifestyle requirements imposed by religious employers; the refusal of work tasks; and the sharing of religious views at work.

Hours of Work Refusal of requests to accommodate changes in hours of work to enable members of staff to participate in religious observance will usually amount to indirect discrimination.107 Requests to be excused work on Friday evenings or Saturdays, and requests for time off for prayer during the working day, are likely to be common. Refusal amounts to a requirement to work to a particular timetable, which puts the religious employee at a disadvantage, and will need to be justified. In many cases there will be a legitimate aim: although many jobs can be adapted to work flexibly, many require constant presence during specific working hours. Even if there is a legitimate aim, the requirement will need to be proportionate to that aim. The question of proportionality will depend on issues such as the requirements for cover during the member of staff ’s absence, the ease with which shifts can be swapped between staff, the availability and cost of cover, the length of time off requested and the frequency of requests. Taking time off for religious observance was one of the experiences identified both positively and negatively in the responses to the Equality and Human Rights Commission call for evidence regarding the experience of religion and belief discrimination at work, published in 2015.108 The issue has given rise to a number of indirect discrimination cases. The outcomes have been varied, reflecting the flexibility and fact sensitivity that is made possible by the open texture of concepts such as proportionality in the definition of indirect discrimination. For example, in Thompson v Luke Delaney George Stobbart Ltd,109 a Jehovah’s Witness was refused permission to take time off work on Sundays. Her discrimination claim 107 It could be direct discrimination if an employer allows some religious individuals to take time off and not others, and the reason for the different treatment is religion. 108 M Mitchell and K Beninger (with E Howard and A Donald), Religion or belief in the workplace and service delivery (Manchester, Equality and Human Rights Commission, 2015). Discussed in Ch 1 above at p 7. 109 Thompson v Luke Delaney George Stobbart Ltd [2011] NIFET 00007 11FET (15 December 2011).

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was upheld: the refusal was not proportionate because there were other employees who could have covered the Sunday shift without difficulty. In contrast, in Cherfi v G4S Security Services Ltd,110 the refusal of a request by security guard to adapt his working hours to facilitate attendance at a mosque for prayer on Fridays was found to be justified. The employer required a certain number of security staff to be on site during operating hours, and so his request was turned down. The employer offered a number of alternative options but these were refused. Cherfi’s indirect discrimination claim was unsuccessful, as the requirement to be on site during the shift was found to a proportionate means of achieving a legitimate aim. Similarly, in Mba v London Borough of Merton,111 the refusal of a request not to work on Sundays was found to be proportionate. The employer had managed to arrange the rota to accommodate the employee’s request for nearly two years, but this was no longer possible, and there was no viable or practical alternative but to require her to be available to work on Sundays. In addition to the indirect discrimination provisions, religious employees could also ask for flexibility in working hours using the right to request flexible working, originally designed for carers, but extended to all workers in 2014.112 This provides a legal right to make the request for flexible working, including flexible hours, and the employer has to consider the request in a reasonable manner. Those making a request have to provide an explanation of how they think flexible working might affect the business, as well as how this could be dealt with. Although the right is not especially strong113 (after all, merely making a request to change hours has never been illegal in any event), it may encourage employers and staff to think about flexible working, and at least requires employers to give some consideration to requests. The extension of the right to flexible working, coupled with the use of the Equality Act in cases of indirect discrimination related to working time, has the potential to cause difficulties for employers, if it leads to a big increase in requests. For example, as well as attempting to accommodate requests based on religion, employers will also need to try to accommodate requests for flexible working made by working parents, carers and others. An employer may be able to manage if a small number of staff work flexibly, but may not be able to allow many to do so, either because of the need to maintain a basic level of coverage of work, or because of potential fragmentation of the management process if too many staff are unavailable at different times. Thus it may not be any one particular worker whose requested flexibility cannot be accommodated, but the cumulative effect of too many requests. Where an employer is faced with a number of requests for time off for different reasons, it is not always clear how they should be prioritised. For example, one employee could wish to have Sundays off to take part in religious 110

Cherfi v G4S Security Services Ltd [2011] UKEAT 0379/10/2405 (24 May 2011). Mba v London Borough of Merton [2013] EWCA Civ 1562. ERA 1996, s 80F (as amended by the Children and Families Act 2014, s 131(2)(a)). 113 L Anderson, ‘Sound bite legislation: the Employment Act 2002 and new flexible working “rights” for parents’ (2003) 32 ILJ 37. 111 112

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observance; another to spend time in sporting activities; and another to have a day off in common with the rest of the family. It might be argued that religious interests should take priority, but this is not certain. Where competing requests are for time off for childcare or elder care, the issue becomes one of gender equality, and the question of priority of interests becomes complex. Moreover, even in the absence of competing equality rights, the issue of time off can become very contested where there is a simultaneous secular benefit114 to the request. Allowing Christian staff to be given priority in avoiding working on Sundays or on Christmas Day, or Seventh Day Adventists priority in not working on Saturdays, has the potential to cause resentment among other workers, who may have non-religious reasons to want the same time off. It is not clear whether the discontent of other workers is a factor that allows employers to justify refusing to give priority to religious staff with regard to such requests, although the cases discussed above suggest that it may be. One can assume that the reason for difficulty in accommodating the requests for time off in Mba’s case was that few other workers wished to work on Sunday, although this was phrased in terms of the employer’s needs for the effective running of its business, both in terms of service delivery and the wider considerations of costs and staffing.115 The indirect discrimination provisions of the Equality Act mean that staff will be able to frame requests for time off for religious observance as equality claims, and any refusal will require justification. In assessing where the balance should lie as between any competing interests, a court should take into account the various factors discussed in Chapter 3 regarding the relative importance of religious freedom and the importance of freedom to manifest religion or belief at work. However, the proportionality assessment has to be undertaken in the light of the fact that the right to freedom of religion, while a fundamental right, is nonetheless a contingent right. Thus, where it is too difficult for the employer to accommodate a request, because of the presence of competing interests, such as those of efficiency of the business or the needs of other workers, the employer will remain free to refuse to allow time off for religious observance without breaching the terms of the Equality Act. What the Equality Act does provide, however, is an obligation on employers to justify such conclusions.

Sunday Working and Shop Workers Special rules for working hours apply to shop workers with regard to requirements to work on Sundays.116 These rules were introduced when the Sunday Trading Act 1994 relaxed the rules covering trading on Sundays. Similar rules protect 114 See P W Edge, Legal Responses to Religious Difference (Dordrecht, Kluwer Law International, 2001) 7. 115 Mba v London Borough of Merton [2013] EWCA Civ 1562 [5], citing para 74 of the ET decision. See discussion of the position in the USA at pp 240–241. 116 See H Fleming, ‘Working, Praying and Sunday Rest: Has the Law Struck the Right Balance?’ (2005) 9 Edinburgh LR 317.

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those who work in betting shops.117 The aim of the protection was to prevent shop workers and betting shop workers from being forced to work on Sundays after the rules on trading on the traditionally work-free day had been changed. The rules provided a right to those who worked in shops or betting establishments at the time the legislation was passed to refuse to work on a Sunday, and to be protected from any adverse treatment that might result from the refusal, although for those employed since 1994, the right is not automatic. Staff must give three months’ notice118 that they wish to opt out of Sunday working: once the notice period is served, they cannot be subjected to dismissal or any detriment for refusing to work on Sundays, nor for serving the notice. However, until the notice period is up, the employee can be required to work on Sundays, and the Sunday Trading Act rules do not protect job applicants who indicate an unwillingness to work on Sundays from being discriminated against on that basis. Although introduced to protect the religious interests of staff, the Sunday trading rules do not require staff to give any reason for wishing to avoid working on a Sunday. Thus they apply equally to those with a religious or a secular motivation for refusing to work on Sundays, whilst providing no protection for those of other religions who wish to be protected for refusal to work on a different holy day, or those in different sectors who do not wish to work on Sundays. The protective rules will have been of use to religious employees employed in the retail sector in 1994 when the changes to shop opening times came into force, and who wished to avoid work on Sundays for religious reasons. They will continue to be of use to those who change their beliefs during their employment in the sector, and who wish as a result to discontinue working on a Sunday. However, they will not help new staff who have an objection to Sunday working, as they will not be able to undertake service for the three-month period of notice required by anyone starting work in the sector after 1994. Those who apply for work in the retail sector and who wish to avoid working on Sundays from the start of their employment, together with those who wish to take different days off, or who work in other sectors, will remain dependent on the application of the Equality Act for any protection, on the basis that refusal of a job because of a religious objection to the hours of work is indirectly discriminatory, as discussed above.

Dress Codes and Religious Symbols Employers will often impose some sort of dress code on staff. This may be a uniform, or may consist of rules on hair length or grooming, or bans on the wearing of religious symbols such as crosses, headscarves or turbans. An employee who is refused a request for a dress code to be adapted to accommodate religious practice 117 The rules were introduced when the Deregulation and Contracting Out Act 1994 allowed betting on Sundays in England and Wales. The protection for shop workers was extended to Scotland in the Sunday Working (Scotland) Act 2003. 118 The notice period is reduced to one month if the employer fails to give the employee notice of the right to opt out of Sunday working.

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would suffer indirect discrimination. The employer’s requirement that staff comply with a particular dress code would put the religious person at a particular disadvantage, and it would need to be justified. There may be a legitimate aim for a dress code, such as presenting a particular corporate image, but any refusal to adapt would also need to be proportionate. A number of interests will have to be balanced in assessing justification and proportionality. These include: the freedom of religion and freedom of expression of the employee seeking an adaptation of the dress code; the employer’s freedom to create a religiously neutral workplace; the interests of staff and customers or service users in enjoying the negative aspects of freedom of religion; and the interest in promoting diversity at work. Also relevant will be the type of business (for example, public or private sector), the nature and extent of the accommodation required, whether the religious dress is necessary to the religion (rather than being common practice among the religion’s adherents), and in some cases the extent to which the member of staff has contact with the public. Much of the discussion of religious dress codes at work has involved the issue of whether or not it is lawful to dismiss female Muslim staff for wearing headscarves.119 More recently attention has focused on the wearing of a veil over the face.120 The legal issues involved in restrictions on the veil are the same as those relating to the headscarf, but the factual difference in the level of covering involved will mean that the outcome, in terms of whether restrictions are proportionate, may differ. The issues that arise in cases of headscarves and veils are perhaps more complex than those that arise in relation to some other adaptations of work uniforms, or restrictions on wearing other religious insignia such as crosses, due to the fact that wearing a headscarf or veil involves an interaction with other interests such as those in gender equality. Nonetheless, the debate over the wearing of headscarves in the workplace provides a useful illustration of the issues that may need to be balanced in assessing the proportionality of imposing dress codes at work. The conflicts that arise regarding the wearing of veils or headscarves at work are complex, and seemingly intractable. The reason for controversy is that a number of interests conflict in such cases, and counter-arguments can be found to most arguments in favour of a ban. The right to religious freedom is clearly engaged when any restriction is imposed on religiously motivated choice of dress. What the headscarf debate illustrates very well, however, is the negative aspect of religious freedom and the interests of individuals who wish to be free from religion, and who prefer to work, or to have services delivered, in a non-religious environment.121 The conflict between positive and negative aspects of freedom of religion is inescapable. For example, if schools or hospitals allow the wearing of 119 For a detailed review of the issues raised by the headscarf debate, see D McGoldrick, Human Rights and Religion: The Islamic Headscarf Debate in Europe (Oxford, Hart Publishing, 2006). 120 Azmi v Kirklees Metropolitan Borough Council [2007] ICR 1154. See also the discussion of SAS v France in Ch 4. 121 In Kokkinakis v Greece [1993] 17 EHRR 397, the ECtHR recognised the need for respect for the freedom of religion of others. This requires respect for others’ freedom not to be religious.

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the headscarf, this upholds the religious freedom of the wearer, but it may infringe the negative aspect of religious freedom of the pupil or patient. The legal question at stake in the context of a restriction on wearing a headscarf at work is whether such a restriction can be justified. The justification may be as to the indirectly discriminatory impact of a uniform that does not include the headscarf, or as to a genuine occupational requirement not to wear Muslim religious dress, which acts as a defence to the direct discrimination involved. In either case the question will be whether the dress code is proportionate to a legitimate aim.122 Of course, the legitimate aims may involve practical issues related to the job, which may justify restrictions on the wearing of a headscarf or veil. It may be that health and safety requirements involve their removal, or it may be that communication is restricted in the case of the wearing of a veil so that its removal is necessary to the performance of the job. Assuming that performance-related requirements are not purely hypothetical, the employer will be able to show in such cases that the restriction serves a legitimate aim, and it is likely to be proportionate. In such cases the freedom of religion of the individual worker will be only to enjoy the residual protection of the freedom not to work.123 In the absence of practical reasons to prohibit the wearing of the veil, restrictions may still be proportionate. A number of other legitimate aims exist, some of which involve rights which may be equal in strength to the right to religious freedom claimed by those seeking to wear the headscarf or veil. Legitimate aims include the aims of providing religiously neutral workplaces, of upholding the right to freedom from religion of colleagues and service users, of ensuring equality between genders (as the headscarf or veil is a religious dress restriction imposed only on women), and of maintaining the freedom of religion of other Muslims to be free from pressure to wear more conservative religious dress. These interests may provide a legitimate aim for any restriction, but this must then be balanced against the interests of the person wearing the veil or headscarf, so that restrictions are only imposed if it is proportionate to do so. In assessing the proportionality of any restriction, the factors identified in Chapter 3 can be considered. One contextual factor was whether the employer is part of the public or the private sector. However, in the context of religious dress codes, the role of this factor is not clear. With regard to public sector or state employment, it is arguable that staff represent the state, and so the wearer of a headscarf infringes state neutrality on questions of religion, meaning that restrictions are more likely to be proportionate. However, even if staff can be taken to represent the state in this way, it is equally arguable that the state should reflect the diversity of the community it represents, and so should employ a range of religious staff to reflect its commitment to religious freedom.124

122

See discussion in Ch 4. See discussion at p 54 above. 124 See discussion at pp 80–82 above. 123

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Moreover, it is questionable whether the wearing of a religious symbol by an individual member of staff in the public sector can really be said to imply state endorsement of those beliefs. The wearing of a visible religious symbol may suggest state support for the practice, but individual dress codes may only be a reflection of individual belief, and should perhaps be seen as a personal statement, rather than as reflecting the views of the state. If bans are proportionate in the public sector, this effectively places limits on the employment of Muslim women by the state. This may significantly interfere with their freedom to pursue their chosen profession. In some sectors, such as education and health, the state is virtually a monopoly employer: to prevent the wearing of headscarves would prevent many Muslim women from participating fully in these sectors. Moreover, if a ban on headscarves in a particular workplace means that a woman is unable to work at all, this should be taken into account in assessing the proportionality of any ban, given the importance of employment to individual economic and emotional well-being.125 One way to reduce the impact of a ban on women’s employment opportunities would be to limit any dress code restrictions to staff who can be taken to represent the employer, such as senior staff. However, this would cause an alternative discrimination against Muslim women. The effect would be to concentrate their employment in areas of work with lesser status, such as catering or cleaning, where they are not senior enough to be taken to imply state endorsement of their religious practice.126 Another factor relevant to proportionality is the extent to which a restriction would affect the rights and interests of others. To be weighed in the balance here are the religious interests of Muslim women, the interest of others in freedom from religion, and the potential conflict between Muslims over the meaning to be ascribed to the wearing of the headscarf. For example, in several cases under the ECHR, reference has been made to the fact that Muslims wearing the headscarf can, intentionally or not, put under pressure those Muslims who choose not to wear it.127 Another relevant factor is the question of whether allowing headscarves or veils at work is consistent with a commitment to equality. In relation to religious equality, a problem arises from the fact that a ban on the display of religious affiliation through dress will not affect all religions equally. A ban on the wearing of headscarves, veils or other forms of religious dress is likely to have a greater effect on Muslims. It will not affect the majority of Christians, as their beliefs do not usually require specific forms of dress. Even if they do require modesty in dress, for example, this is more likely to be achieved in a manner that accords with mainstream clothing codes, and so is likely to pass unnoticed. 125

See discussion at pp 56–59 above. See D Schiek, ‘Just a Piece of Cloth? German Courts and Employees with Headscarves’ (2004) 33 ILJ 68. 127 Sahin v Turkey App no 44774/98 (ECtHR, 10 November 2005), paras 115 and 116. See also Dahlab v Switzerland App no 42393/98 (ECtHR, 15 February 2001). 126

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With reference to the need to maintain gender equality at work, the question of proportionality becomes highly contested. The issue of gender equality can be used on both sides of the argument over restricting religious dress. On the one hand, because the specific group that is affected is Muslim women,128 it can be argued that any ban on headscarves will rarely be proportionate as it will adversely affect Muslim women while having no effect on Muslim men. If Muslim women are to achieve equality with Muslim men and non-Muslim women, they need access to work, and bans on the wearing of religious dress militate against this. After all, a ban on headscarves is unlikely to result in more Muslim women working as doctors, judges, police officers or teachers. Rather than removing the veil in order to work, it is as likely that they will not enter these professions at all. Such an outcome would be counter-productive in terms of achieving women’s equality. It may be that allowing Muslim women to wear the headscarf in such jobs will send a positive message about women’s equality, and Muslim women’s equality in particular, illustrating that they are as capable as others of such work. On the other hand, the headscarf is understood by many to be illustrative of the subjection of women to the power of men. It is therefore viewed as antithetical to the interests of women to facilitate the practice by allowing headscarves to be worn at work. On this view, gender equality requires that the headscarf and veil be restricted at work, particularly with regard to the public sector, where the state’s commitment to equality for women may mean that such practices should not be condoned. In addition to equality rights, a number of other matters need to be taken into account in assessing the proportionality of any restriction on the wearing of the veil or headscarf. First are the socio-economic aspects of any case. Muslims tend to be from ethnic minorities in the UK and can suffer economic disadvantage,129 with that economic disadvantage being exacerbated by issues of gender. It may be that accommodating the religious practice of Muslim women will give them access to work and a way out of the social exclusion they might otherwise experience.130 In particular, work within the public sector may be seen as a suitable vehicle to carry out the social policy of inclusion. A second matter to consider is the interaction between religious freedom and freedom of expression. The wearing of a headscarf or veil is an expressive act, and it may have a number of meanings. Even as an expression of religious devotion, the wearing of a veil or headscarf can have different meanings. Some believe it is required as part of their religious practice, for others it is not mandated by Islam but is an expression of religious commitment. As well as religious meanings, wearing of religious dress may express cultural or ethnic identity; it may be used 128 This is a clear example of multiple discrimination: see S Fredman, ‘Double Trouble: multiple discrimination and EU law’ (2005) 2 European Anti-Discrimination Law Review 13. 129 See Fairness and Freedom: The Final Report of the Equalities Review, February 2007, available at , 78, which identifies Pakistani and Bangladeshi women as particularly vulnerable to inequality in the employment sphere. 130 See the discussion of social exclusion at pp 43–44 and 91 above.

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to distinguish the wearer from mainstream culture,131 or it may have a political meaning. Some wearers may act purely from personal choice, others may act under the influence of husband, father, brothers or other women. Given the very varied meanings attached to the wearing of headscarves and veils, courts will need to be very wary of interpreting on behalf of women the meaning of their actions.132 Of course, the many and varied meanings of the wearing of a headscarf or veil do not only apply to the wearer. In determining whether it is proportionate to restrict the wearing of religious dress at work, the interests of others also need to be put in to the balance. For example, customers or service users may have an interest in having goods and services delivered by a politically and religiously neutral workforce. Moreover, as identified in Chapter 3, employers have economic and expressive rights to project a particular image to customers or clients, an image that may be secular. Lastly, the proportionality of any restriction on the wearing of religious dress at work has to be determined in light of the fact that protection of religious freedom does not extend to the provision of a job. The ‘right to resign’ remains the ultimate protection for religious freedom.133 Of course, the right to resign does not provide much protection for religious freedom and there are times when the religious interests of the employee who wishes to wear a headscarf will outweigh the other interests involved. Nonetheless, the weighing of proportionality in employment cases should be undertaken in the light of the fact that the infringement of religious freedom represented by a ban on the wearing of the headscarf is an infringement of a right which itself is not an absolute right, and in a context where the rights are not exercisable in an absolute form. Given that the issues are so contested, it is perhaps unsurprising that courts in the UK and the rest of Europe have often limited their role to determining whether a proper and fair procedure has been used by employers in deciding whether headscarves or other forms of religious dress should be allowed. For example, in Germany, the Federal Labour Court held that dismissal of a salesperson based on the wearing of a headscarf was invalid,134 because although relying on economic loss as a justification, the employer had not shown any actual financial loss caused by the wearing of the headscarf. Similar procedural safeguards were required by the House of Lords in the UK in upholding the legality of a refusal by a school to allow a Muslim pupil to wear a jilbab to school,135 although the case did not involve 131 See R (on the application of Begum (Shabina)) v Denbigh High School Governors [2006] UKHL 15, for a discussion of the potential meanings of the wearing of a headscarf. 132 See Sahin v Turkey App no 44774/98 (ECtHR, 10 November 2005), dissenting opinion of Judge Tulkens, para 12. See also M Mahlmann, ‘Religious Tolerance, Pluralist Society and the Neutrality of the State: The Federal Constitutional Court’s Decision in the Headscarf Case’ 4(11) German Law Journal 1099. 133 See discussion at p 54 ff above. 134 Federal Labour Court 10 October 2002, 2 AZR 472/01. 135 R (on the application of Begum (Sabina)) v Denbigh High School Governors [2006] UKHL 15. See also the decision relating to a pupil’s exclusion for wearing the niqab or veil: X (by her father and litigation friend) v The headteacher of Y school and the governors of Y school [2006] EWHC 298 (Admin).

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employment. Here the school had a uniform code that allowed the wearing of religious dress, including a headscarf. One pupil wished to wear the more religiously conservative dress, the jilbab, a long coat-like garment. The school insisted on the correct uniform being worn, a uniform that had been agreed in consultation with the local Muslim community. The school’s freedom to enforce the uniform rule was upheld by the House of Lords, because it was proportionate having regard to the individual pupil’s freedom of religion, the competing interests of protecting other Muslim students from family or societal pressure to wear the more conservative style of dress, and the fact that the pupil had the option of attending a different school where the jilbab could be worn. The fact that a range of criteria had been considered by the school, including the pupil’s freedom of religion, meant that the rule could be upheld. In terms of how the wearing of headscarves is treated under the Equality Act in the context of employment, the approach seems to be to require a clear objective basis for any restriction on religious dress. Any requirement regarding headscarves or veils will have to be objectively justified by a legitimate aim, and the means of achieving the aim will need to be appropriate and necessary. If an employer seeks to justify on the basis of hypothetical claims (for example, customers may object), this is not likely to be sufficient, as the employer will need to show that the requirement is necessary. This means that a real need for the ban must be established, and the means to achieve it must be narrowly tailored to achieve its objective. In terms of legitimate aims, however, justification may be possible because of the wide range of additional interests that may be at stake. This approach was taken by the EAT in Azmi v Kirklees Metropolitan Borough Council discussed above.136 The EAT held that the indirect discrimination was justified, as it was proportionate given the need to uphold the interests of the children in having the best possible education. The fact that the school had been undertaking a close investigation to see if the quality of teaching was reduced when the classroom assistant wore the face covering, and to see if it was possible to rearrange her timetable to enable her to assist only in classes led by a female teacher,137 was relevant to the finding that the ban on the veil was justified. The case can be contrasted with the ET case of Noah v Sarah Desrosiers (trading as Wedge).138 Noah, a Muslim who was applying for a hairdressing position, succeeded in her indirect discrimination claim when the potential employer stated that she would be required to remove her headscarf while at work if appointed. The employer sought to justify this requirement on the basis that it was important for hairdressers to have their own hair visible to promote the image of the salon. The ET found that this was not a proportionate means of achieving the aim, in particular because 136

Azmi v Kirklees Metropolitan Borough Council [2007] ICR 1154 discussed at 170. Other suggested ways to avoid the problems were to remove the children needing support during lessons conducted by a male teacher; for Azmi to teach with her back to the male teacher; or that she sit behind a screen. The school’s view that these were not appropriate ways to deal with the difficulties posed by the wearing of the veil was supported by the EAT. 138 Noah v Sarah Desrosiers (trading as Wedge) ET Case no /2201867/2007. 137

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in this case the employer had not brought any evidence of the business need.139 Although the tribunal did not require the employer to carry out a trial to test the impact of the headscarf on business, nonetheless it did note that there was some onus on the employer to bring evidence that the wearing of the headscarf would have an adverse effect on the business. In the absence of any such evidence, the requirement was found not to be justified. Other cases regarding the wearing of religious symbols have taken a similar approach. In Dhinsa v SERCO,140 a refusal to allow a Sikh man who was a trainee prison officer to wear his kirpan (a ritual dagger) while on duty was not indirect religious discrimination. The restriction was appropriate and necessary for the maintenance of prison security and the safety of staff, visitors and prisoners. Moreover, the ET commented on the fact that Serco had undertaken a careful investigation into the issue, and had decided that the requirement not to carry the kirpan was necessary. These cases suggest, then, that in assessing proportionality in the complex cases of dress codes, courts will often rely on procedural matters, such as whether sufficient evidence has been brought regarding the harm caused to a business, rather than relying on arguments from first principles regarding the justification of the restriction. The cases of Eweida141 and Chaplin,142 heard eventually before the ECtHR,143 also involved indirect discrimination in the context of dress codes, in their cases a requirement not to wear a cross in a way that meant it was visible to others. Eweida was refused permission to wear a cross over her uniform, as this was in breach of their uniform policy, even though British Airways did allow Muslim women to wear the hijab, and Sikh men to wear turbans. As discussed above, Eweida was unsuccessful in her claim of indirect discrimination, as she did not identify a group with whom she shared her disadvantage. As a result, the issue of justification was not fully considered in the domestic hearings, although to the extent that it was considered, the Court of Appeal found that the requirement could be justified. The reasoning was based on the facts of the case, such as the refusal by Eweida of an offer to be moved without loss of pay to work involving no public contact, and the question of whether her beliefs about the visible wearing of the cross were core beliefs or merely a personal preference.144 When the case was heard in Strasbourg, the ECtHR found that Eweida’s treatment was not justified. The reason given by the employer for refusing Eweida’s request to wear the cross had been that the dress code was necessary for its corporate image.145 The ECtHR found that in 139 R Catto and D Perfect, ‘Religious literacies, equalities and human rights’ in A Dinham and M Francis (eds), Religious Literacy in Policy and Practice (Bristol, The Policy Press, 2015) 135; R Sandberg, ‘Noah v Desrosiers t/a Wedge’ (2009) 163 Law and Justice 191. 140 Dhinsa v SERCO ET Case no /1315002/2009. 141 Eweida v British Airways [2010] EWCA Civ 80. 142 Chaplin v Royal Devon and Exeter Hospital NHS Foundation ET Case no /1702886/09. 143 Eweida v British Airways [2013] ECHR 37 144 Ibid [33] and [37]. See discussion in L Vickers, ‘Religious Discrimination in the Workplace: An Emerging Hierarchy?’ (2010) 12 (3) Ecc LJ 280. 145 Eweida v British Airways [2013] ECHR 37 [93].

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Eweida’s case, the restriction on her religious freedom was not proportionate, as the employer’s interests in maintaining its corporate image were insufficient to outweigh her interest in religious freedom. The Court noted in particular that that the cross was discreet and did not detract from her professional appearance; and that there was no evidence that there was any negative impact on corporate interests when other items of religious clothing, such as turbans and hijabs, were worn. Moreover, the fact that the company amended the uniform code soon after the case arose showed that the prohibition had not been of crucial importance.146 In contrast, in Chaplin v Royal Devon and Exeter Hospital NHS Foundation, a Christian nurse was requested to remove a cross and chain that she wore for religious reasons, after a new uniform was introduced that included a V-necked tunic. She was refused permission to continue wearing the necklace on the ground that it might cause injury if a patient were to pull on it. A number of compromises were suggested but rejected by both parties. Chaplin suggested wearing the cross on a chain secured with a magnetic catch, which would easily break apart if pulled, but this was refused on the basis that the cross could still come into contact with wounds. The health authority suggested that she could attach the cross to the lanyard that held her identity badge, but Chaplin refused as staff had to remove the lanyard when performing certain clinical duties. She was unsuccessful in her ET hearing on the same basis as Eweida (she had not identified a group, and in any event the requirement was justified) but, unlike Eweida, she was also unsuccessful when her case was heard by the ECtHR. The ECtHR found that the restriction on Chaplin’s religious freedom was proportionate, especially given the magnitude of the employer’s interest in protecting health and safety on a hospital ward. The Court also took the view that matters of clinical safety were best taken a local level.147 As with the headscarf cases, these cases on dress codes and religious symbols show that in assessing proportionality, courts continue to rely on detailed considerations of the facts as well as procedural matters, such as whether sufficient evidence has been brought regarding any potential harm that could be caused by the symbol. This means that cases remain very fact-specific, and it can be difficult to determine in advance whether particular restrictions on religious dress will be justified or not when they cause disadvantage to those of a particular religion or belief. What is clear, however, is that good reasons will need to be presented for restrictions to be justified on their facts. Whilst carrying out a trial or testing various options is not required before a restriction on religious dress can be justified, nonetheless it is not sufficient merely to identify business reasons for a restriction; employers will also need to show that the business reasons apply in the particular case. Where reasons for a restriction are based less on commercial 146 Ibid [94]. This latter issue could point both ways, however, as it could be argued that the employer had shown itself willing to change its uniform code, and that this should have counted in favour of the employer, showing that it was willing to be flexible. 147 Eweida v UK [2013] ECHR 37 at para 99.

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interests and more on general interests, such as that of other employees to work in a religious neutral environment, or for customers to enjoy service delivery in a neutral environment, it will not be possible to bring evidence to prove such a claim. However, this should not mean that such arguments cannot be brought. In Eweida, the ECtHR did not reject British Airways’ desire to promote a certain corporate brand image as an illegitimate aim. The reason for finding that reliance on this aim was not justified was instead that British Airways had been inconsistent: not only were other religious symbols allowed, but it had also swiftly amended its policy after the case had begun, suggesting that the interest in the particular corporate image was not so strong. Were an employer consistently to promote a secular corporate image to its employees and customers, it would remain open for such a policy to provide a legitimate aim for restrictions on religious dress. If enforced consistently, such a policy could be justified, assuming that other factors (discussed in Chapter 3) do not point towards a different result; for example where the employer is a monopoly employer, such that the restriction has a significant detrimental impact on the employment prospects of particular religious groups.

Lifestyle Requirements Another way in which religious issues may arise at work occurs in the particular context of religious ethos employers. Where employers have an ethos based on a religion or belief, they may wish to impose on members of staff requirements relating to lifestyle. These may involve sharing the employer’s faith, but may extend to other matters of private life such as sexual morality.148 The freedom of religious employers to require the loyalty and good faith of staff is addressed by Schedule 9 to the Equality Act, which sets out the special occupational requirement exception for organisations with an ethos based on religion or belief. This enables religious organisations to impose on staff requirements of loyalty to the religion, requirements that would otherwise amount to direct or indirect discrimination against those of different faiths. Apart from discriminating against those of other faiths or no faith, lifestyle requirements will also impinge on the private lives of staff, and to this extent may be difficult to justify. For example, private matters such as divorce or remarriage could be relevant as demonstrating good standing and loyalty to the religion.149 In assessing whether it is proportionate to impose such requirements, a court can take into account the factors identified above as relevant to proportionality. Where an employee has chosen to work for a religious employer, it may be proportionate for the employer to make demands in terms of loyalty and lifestyle. Matters 148 Such requirements are covered in Art 4(2) of the Directive, which states that it does not prejudice the rights of churches or other organisations with a religious ethos to require individuals working for them to act in good faith and with loyalty towards the organisation’s ethos. See discussion of Schedule 9 (3) above at pp 176–177. 149 See discussion of Obst v Germany App no 425/03 (ECtHR, 23 September 2010); Schüth v Germany App no 1620/03 (ECtHR, 23 September 2010) in Ch 4 above.

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that would clearly be private in other contexts may be relevant in a workplace that has opted to share such matters between staff. For example, in a Christian workplace, where staff engage in prayers at the start of the day, it may be expected that staff will share fairly personal matters of faith or daily life. Where such requirements are imposed in workplaces where there is less choice for the staff member, for example the employer is virtually a monopoly employer in the particular sector, such requirements may be difficult to justify. If a lifestyle requirement is enforced in relation to a female employee but not a male employee then this may give rise to sex discrimination. In Percy v Church of Scotland,150 a female minister in the Church of Scotland was asked to resign her office after an investigation into an alleged affair with a married parishioner. The questions at issue in the case related to her status as an employee and whether the matter was a spiritual matter for resolution within the internal church structures, or a matter for resolution under the Sex Discrimination Act 1975.151 The basis of her sex discrimination claim was not that it was inappropriate for such private matters to give rise to disciplinary measures, but that where male ministers were known to have had extra-marital sexual relationships, similar disciplinary action had not been taken. The House of Lords found that the matter was within the scope of the Sex Discrimination Act. It is clear that the inequality of treatment of male and female priests is at the heart of the decision. The fact that disciplinary action was being taken as a result of private matters was not of such concern, given the nature of the work. Although lifestyle requirements will often be directed at men and women, they may, in practice, have a greater impact on women, and so may involve direct or indirect sex discrimination. The presence of special protection for religious ethos organisations does not extend to the justification of discrimination on other grounds such as gender. Physiological differences and social differences can mean that lifestyle requirements can have a particular impact on women. For example, it may be that it is only with pregnancy that a breach of a requirement to abstain from sexual activity outside marriage becomes known to an employer. Discrimination against women who become pregnant when unmarried may be motivated by a desire to sanction the failure to meet a requirement in terms of lifestyle, but it will also be pregnancy-related, and will therefore amount to sex discrimination.152 Similar problems, where gender and religion interact, could arise if a religious employer refused to employ anyone who has had an abortion. Where a decision to dismiss a member of staff is related to pregnancy, it will amount to sex discrimination. In O’Neill v Governors of St Thomas More RCVA Upper School,153 a teacher in a Catholic school became pregnant and was dismissed 150

Percy v Church of Scotland Board of National Mission [2005] UKHL 73. Now replaced by the Equality Act 2010. 152 See Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus [1990] ECR I-3941, and O’Neill v Governors of St Thomas More RCVA Upper School [1996] IRLR 372, discussed below. 153 O’Neill v Governors of St Thomas More RCVA Upper School [1996] IRLR 372. 151

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when it became known that the father of the child was a priest. Her dismissal was found to be discriminatory on grounds of sex, because it was related to pregnancy. The employer’s argument that the reason for dismissal was not the pregnancy but the failure to comply with religious standards was not accepted, because the pregnancy precipitated and permeated the decision to dismiss. However, despite the finding in O’Neill, it is arguable that if an employer could show that dismissal would also follow a discovery that a man had failed to comply with religious standards, such a dismissal should not automatically be found to be on grounds of pregnancy. The case of Dekker,154 which established that pregnancy discrimination was direct sex discrimination, did not thereby create total immunity from dismissal for pregnant women. For example, a pregnant woman can lawfully be dismissed if the reason is not related to the pregnancy. The legal protection for pregnancy relates to dismissal or disadvantage imposed because of pregnancy, not from that which is imposed for other reasons such as gross misconduct. In effect, in this context, dismissal may not be for pregnancy per se, but may genuinely be for breach of a lifestyle requirement. In such a case, dismissal will not be directly discriminatory on grounds of sex. It may be indirectly discriminatory, if one takes the view that it is harder for women than men to conceal a breach of a lifestyle requirement where it results in pregnancy, but such indirect discrimination may be justifiable: to prohibit the dismissal of priests in such circumstances would involve a fairly serious erosion of autonomy of religious groups in the selection of their leaders. For example, if a unmarried female religious teacher or priest from a religious group that does not allow extra-marital relationships were to become pregnant, her dismissal would be on grounds of failure to comply with an occupational requirement of loyalty to a religious lifestyle, assuming that a male priest would also be dismissed for engaging in such a relationship.155 As with any other genuine occupational requirements imposed by religious groups, the determination of whether the requirement is proportionate may depend on other factors, such as the type of job in question. Lifestyle requirements imposed by religious employers who provide public services are less likely to be proportionate than those imposed by purely private organisations. Moreover, strict lifestyle requirements are more likely to be proportionate if they are imposed on those who teach or preach the religion than if imposed on those less directly involved in religious practice. Where requirements are imposed on those more distantly linked to the mission of the religious group, they may be more difficult to justify.

154 Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus [1990] ECR I-3941. 155 The reason for Percy’s success in Percy v Church of Scotland Board of National Mission [2005] UKHL 73 was because of evidence that where male priests had been involved in extra-marital affairs, they had not been dismissed.

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Refusal of Work Tasks Members of staff who hold certain beliefs may ask to be excused from carrying out some types of work because they are incompatible with those beliefs. Relatively simple examples of tasks from which staff may ask to be excused involve selling alcohol or handling meat products. Such requests will be dealt with in a similar way to those relating to uniforms or time off work. Where proportionate, employers may refuse requests of this type, but a refusal when it would be easy to allow the request may be indirectly discriminatory. For example, it would be proportionate to refuse to accommodate a butcher who refused to handle meat; but a request from a butcher to be exempt from occasional requests to handle alcohol should probably be accommodated if other staff can cover the task. Special legal provision regarding opting out of work for reasons of conscience apply to two areas of work: participation in abortion, and participation in embryo research. With regard to abortion, section 4(1) of the Abortion Act 1967 states that ‘no person shall be under any duty … to participate in treatment authorised by this Act to which he has a conscientious objection’, and similar terms can be found in section 38(1) of the Human Fertilisation and Embryology Act 1990. The scope of the exemption involving abortion has been tested in a number of cases. The provision covers doctors, nurses and other staff involved in treatment for abortion. However, the provision does not cover those not involved in ‘treatment’. Thus, a secretary who refused to type a referral letter regarding an appointment for advice on abortion was not covered by the conscientious objection clause;156 and in Greater Glasgow Health Board v Doogan,157 it was confirmed that the exemption covers only the medical process of abortion. Those engaging in broader activity relating to the follow-up care of the patient are not covered by the provisions. They will, however, fall under the general provisions of the Equality Act. Therefore, requirements to be involved in care of patients before or after an abortion may be said to be indirectly discriminatory against those with religious or belief objections; and any requirement for them to participate will need to be justified, as discussed below. Moreover, although doctors and nurses cannot be required to be involved in abortion, they are expected to refer patients requesting abortion to another practitioner.158 Thus, if a doctor or other medical practitioner has an absolute religious objection to abortion, such that he is not willing to refer patients to other doctors who will advise on the issue, that doctor or other p ractitioner

156

Janaway v Salford Health Authority [1989] AC 537. Greater Glasgow Health Board v Doogan [2014] UKSC 68. 158 See para 52 of the GMC Guide, Good Medical Practice 2013: ‘You must explain to patients if you have a conscientious objection to a particular procedure. You must tell them about their right to see another doctor and make sure they have enough information to exercise that right. In providing this information you must not imply or express disapproval of the patient’s lifestyle, choices or beliefs. If it is not practical for a patient to arrange to see another doctor, you must make sure that arrangements are made for another suitably qualified colleague to take over your role.’ 157

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will not be protected by the provisions in place to safeguard conscientious objection to participation in treatment. In such a case, discrimination against the individual, although linked to the employee’s religion, will not necessarily amount to actionable indirect discrimination, as it may be justifiable where the individual is refusing to carry out important aspects of the job. In cases of religious objection to other tasks, refusal of staff requests to be excused from some aspects of work will be indirectly discriminatory: the employer is requiring the employee to engage in certain conduct, and the employee’s religious beliefs put him at a disadvantage because he cannot do so. However, any such requirement can be justified, where proportionate. Where carrying out the task in question is a significant aspect of the job, it is very likely to be justified. Where the contested duties are more tangential, it may be that the proportionate response is to allow voluntary swaps of tasks, or to redeploy the individual, especially where this can be done without disadvantage or disruption to others.159 In some cases, the refusal of a member of staff to carry out a task has been on grounds which themselves are discriminatory. For example, cases have arisen in several jurisdictions involving marriage registrars who wish to be exempted from officiating at civil partnerships or same-sex marriages. These cases are treated as potential cases of indirect discrimination; the requirement to officiate at the civil partnership is a neutral requirement, which causes disadvantage to the particular religious employee because he or she cannot comply for religious reasons, and so the requirement will need to be justified as a proportionate means to achieve a legitimate aim. Two examples have come before the courts of staff refusing to carry out aspects of their jobs for religious reasons which involved discrimination on other grounds. In Ladele v Islington Borough Council,160 Ladele sought to be excused from officiating at civil partnerships on the basis of her religious beliefs, but permission was refused. Similarly, in McFarlane v Relate Avon Ltd,161 McFarlane claimed that he was discriminated against for refusing, on religious grounds, to provide psychosexual therapy to same-sex couples. The Court of Appeal in Ladele held that the refusal to accommodate the request to be exempt from officiating at civil partnerships was justified as the employer was entitled to rely on its policy of requiring all staff to offer services to all service users regardless of sexual orientation. The decision in McFarlane was determined fairly briefly and followed Ladele. The decisions were seen by many as emblematic of an embedded conflict between religion and sexual orientation equality.162 In effect, however, the cases are no different from other indirect discrimination cases; the employers’ requirements, that Ladele 159 See the discussion of this issue with respect to the position in the USA and Canada, at pp 242 and 253–254 respectively. 160 Ladele v Islington Borough Council [2009] EWCA Civ 1357; then heard with Eweida v UK, App nos 48420/10, 59842/10, 51671/10 and 36516/10 (ECtHR, 15 January 2013). 161 McFarlane v Relate Avon Ltd [2010] EWCA Civ 880. 162 A Hambler, Religious Expression in the Workplace and the Contested Role of Law (Abingdon, Routledge, 2015) 162.

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perform civil partnerships and McFarlane offer therapy to all clients regardless of sexual orientation, were potentially indirectly discriminatory as they put them at a disadvantage, but they were justified as a proportionate means to achieve equality on other grounds. This outcome was upheld by the ECtHR on a similar basis: the consequent restriction on religious freedom was justified as a proportionate means to protect the equality rights of others. The cases illustrate the courts’ moderate approach to the determination of proportionality. It is, after all, possible to imagine a different outcome of the balancing exercise, particularly given that alternative ways to accommodate the religious employees’ requests were easily identifiable, for example by allowing staff to swap clients informally, or in Ladele’s case by not designating her as a civil partnership registrar, and thus precluding her from conducting the civil partnership ceremonies. Indeed, in Ladele the Court of Appeal was clear that it was not criticising the decision by some councils to accommodate similar requests from marriage registrars. However, the Court did not rely on the fact that an alternative, potentially less discriminatory, means of accommodating Ladele could be identified to find that the employer’s decision was unjustified. Instead, proportionality was assessed fairly broadly, using a wide range of factors, including the fact that she was employed in the public sector and that her job was of a secular nature.163 An additional factor in Ladele’s case was that she was already in post when civil partnerships were introduced and so she had not applied for a job which she knew she could not perform; arguably she should not lose her job when the job had changed around her. However, although the job had changed during her employment, it is worth noting that changes in work tasks are often introduced by employers, particularly in response to technological or legal developments, and this does not usually give rise to rights for employees to continue to work in their previous roles.164 The decisions in Ladele and McFarlane illustrate the fairly flexible approach of the Court of Appeal, and subsequently of the ECtHR, to the question of proportionality. As with the other indirect discrimination cases, the decision was based on the balancing of competing interests to achieve a proportionate outcome, an approach which has the potential to be sensitive to the individual facts of the case and the contextual factors discussed in Chapter 3.

Sharing Religious Views at Work A further area in which cases of indirect discrimination have arisen in the work setting involves religious individuals who have shared their religious views with 163

Ladele v Islington Borough Council [2009] EWCA Civ 1357 [52]. Cresswell v Board of Inland Revenue [1984] IRLR 190. Of course Cresswell establishes only that the employee can be expected to adapt to new methods of working. It is arguable that the new methods of working in Ladele’s case were too radical in nature to be seen as part of her original contractual obligations. The point here, however, is that Cresswell shows that there is no inherent right for an employee to assume that her job cannot change. 164

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others, either colleagues or clients, for example by offering prayers or distributing religious literature. Such activity can be viewed by the religious staff member as the manifestation of religion, and so any restrictions on religious expression at work could be indirectly discriminatory unless they are justified. However, as other members of staff or customers may object, and such activity may amount to harassment (discussed above), any restrictions may be justified. Although the right to manifest religion does cover proselytising, the right is not absolute, and it is does not cover improper proselytism.165 Proselytising will be improper if it interferes with the rights of others, for example to be free from the inappropriate promotion of religion, either as a service user or at work. Thus although harassment cases involving proselytism may engage rights to religious freedom on the part of individuals who wish to share their beliefs, interference can be justified in order to respect the rights of others. In Chondol v Liverpool City Council,166 a social worker was employed as part of a community mental health team. He was dismissed for, amongst other things, inappropriate sharing of his religious beliefs, after he gave one of his service users a Bible and spoke with another about religious belief. In Chondol’s case the tribunal accepted that he had not in fact handed over the Bible inappropriately as the client has asked if he had a Bible. However, this fact was relevant to the decision on unfair dismissal rather than the religious discrimination. The religious discrimination aspect of the claim was brought as a direct discrimination claim, and so was relatively easily disposed of: the dismissal was not because of his religion but because of his conduct. The discrimination claim might have had more chance if brought as an indirect discrimination claim, as the rule against proselytism at work might cause disadvantage to religious employees. However, were a case of inappropriate proselytism to be brought as an indirect discrimination claim, it would be likely to be proportionate to restrict proselytising conduct while at work, particularly where the religious views were being shared in the context of service providers and clients. In some cases, staff have sought to share their religious views on sexuality with others, when those views have been negative as regards lesbian, gay and bisexual people. Religious speech that reveals a negative attitude to homosexuality may be viewed as harassment where it creates a hostile or humiliating environment, and such speech may be restricted at work. In such cases, although the religious worker may enjoy a level of freedom to debate religious doctrine, this clearly needs to be balanced against the need to protect the dignity of other workers. Thus it is unlikely that any hostile, offensive or humiliating speech would be protected in the workplace. A number of ET cases have involved disciplinary action for speech related to sexual orientation. These have been dealt with as indirect discrimination. In

165 166

Kokkinakis v Greece (1993) 17 EHRR 397. Chondol v Liverpool City Council [2009] UKEAT 0298/08.

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Apelogun-Gabriels v London Borough of Lambeth,167 Apelogun-Gabriels claimed religious discrimination when he was dismissed for distributing ‘homophobic material’ to co-workers. He had organised prayer meetings for Christian staff, and then distributed some verses from the Bible that were critical of same-sex sexual activity to members of the prayer group and other co-workers. Other staff members found them offensive and complained. The tribunal found that the material was offensive on grounds of sexual orientation, and although it had not been targeted at gay and lesbian staff, this nonetheless meant that any indirect discrimination involved in his dismissal was justified. In Haye v London Borough of Lewisham,168 a Christian administrative assistant was dismissed after posting her beliefs about homosexual practice on the Lesbian and Gay Christian Movement’s website, using her work computer. The tribunal dismissed the claim of religious discrimination: any indirect discrimination was justified. Where staff have been disciplined for religious views at work, this has also led to harassment claims. However, in two ET cases, Mbuyi v Newpark Childcare169 and Wasteney v East London NHS Foundation Trust,170 it was decided that that disciplinary action taken by an employer against an employee who expressed negative views about homosexuality in conversation with colleagues did not amount to harassment.171 One additional feature that has arisen in the case of the expression of religious views in the work context, has been the question of the boundaries between work-based activity and private activity. This arose in Smith v Trafford Housing Trust,172 in which an employee posted a comment on his Facebook page in which he said that gay marriage was ‘an equality too far’.173 Although clearly not posted as part of his employment, nonetheless, the comment could readily be seen by colleagues who were friends of Smith on the site, and it did generate some discussion between colleagues on Facebook. In addition, the fact that Smith worked for the Trafford Housing Trust was listed as his occupation on the site. This meant that the interests of the employer were potentially engaged in what might otherwise be seen as a private comment.174 The comment made by Smith on Facebook led to his demotion, on the basis that he had acted in breach of the Trust’s code of conduct and had acted contrary to its equal opportunities policy. The court found that Smith’s comment did not breach the employer’s equal opportunities policy as it was clearly a personal view expressed in a non-work setting. The entries on his Facebook page needed to be seen in context: most of the posts related to 167

Apelogun-Gabriels v London Borough of Lambeth ET Case no 2301976/05. Haye v London Borough of Lewisham ET Case no 2301852/09. 169 Mbuyi v Newpark Childcare ET Case no 3300656/2014. 170 Wasteney v East London NHS Foundation Trust ET Case no 3200658/2014. The case was upheld at the EAT. See [2016] UKEAT 0157_15_0704. 171 Note that Mbuyi was successful in her direct discrimination claim. See above at p 164. 172 Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch). 173 Ibid [1]. 174 See L Vickers, ‘Unfair Dismissal and Human Rights’ (2004) 33(1) ILJ 52; and V Mantouvlou, ‘Human Rights and Unfair Dismissal: Private Acts in Public Spaces’ (2008) 71 MLR 912. 168

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atters wholly unconnected to work, such as sport, food and cars; and the fact m that the identity of the employer was briefly mentioned as part of his personal details on the site would not lead to an assumption by other Facebook users that the employer endorsed any of the views expressed. Smith’s claim was for breach of contract rather than religious discrimination. Had he claimed religious discrimination, the question would have been whether the employer was justified in demoting him because of his religion or belief. The fact that the behaviour could be said to have taken place outside of work would be weighed in the balance in assessing proportionality, and would mean that the demotion would be unlikely to be proportionate. However, the court in Smith did point out that the decision that the Facebook postings did not amount to mistreatment of colleagues was a question of degree: had Smith’s comment passed judgement on a particular work colleague, for example, it might have contravened the equal opportunities policy, notwithstanding that they were posted to his personal Facebook page. The Equality and Human Rights Commission’s 2015 call for evidence on experiences of religion or belief in the workplace and service delivery175 identified difficulties with balancing the freedom of religious employees to share their beliefs with clients or colleagues against the freedom of those clients or colleagues to be free from religious influence at work. An additional concern has been that disciplining colleagues for inappropriate speech might be treated as harassment by those employees who feel their religious freedom has thereby been infringed. The case law on the issue demonstrates an approach based on a recognition of the importance of religious expression to the religious individual, coupled with equal recognition of the importance for clients and colleagues to be able to work or access services in a religiously neutral environment. In particular, cases of harassment brought by those who have been disciplined for inappropriate religious activity at work have not been successful.176 In general, the cases show the importance of a fact-sensitive approach when assessing the proportionality of any restrictions on employees’ religious expression in the work context. They also confirm that limits on religious expression at work are often proportionate, when such expression interferes with the rights of others. Again, the qualified nature of the protection for religion and belief in the work context is clear.

The Public Sector Equality Duty The Public Sector Equality Duty, created by s 149 of the Equality Act, introduces a duty on public sector bodies to have due regard to the need to eliminate 175 M Mitchell and K Beninger (with E Howard and A Donald), Religion or belief in the workplace and service delivery (Manchester, Equality and Human Rights Commission, 2015). 176 Mbuyi v Newpark Childcare ET Case no 3300656/2014; Wasteney v East London NHS Foundation Trust ET Case no 3200658/2014. The Wasteney case was upheld at the EAT. See [2016] UKEAT 0157_15_0704.

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iscrimination, harassment, victimisation and any other conduct that is prohibd ited by or under the Act; to advance equality of opportunity between persons who share a religion or belief and persons who do not share it; and to foster good relations between persons who share a religion or belief and persons who do not share it. Although extending to activities far beyond employment, the duty does cover the employment practices of public sector employers. Following the introduction of the Duty, many public sector employers have put in place processes to try to promote equality in the workplace, as well as in the provision of their services.177 Examples of good practice include ensuring that recruitment processes are carried out with due regard to religious equality; embedding appropriate equality training into staff development frameworks; ensuring data is available to assess progress towards achieving equality; developing awareness of religious and other equality issues among staff; and creating staff networks.178 The Public Sector Equality Duty enables a proactive approach to be taken to support progress towards equality in the workplace. Its reflexive nature allows it to be adapted to the individual circumstances of the employer. However, some concern has been expressed regarding its application in the context of religion and belief.179 Lester and Uccellari point out that the duty as it applies to religion can give rise to competing and at times irreconcilable demands, between religious believers and those who believe in a secular society, as well as between those of different religions. They suggest, for example, that steps to promote equality of treatment on grounds of religion at work could constitute less favourable treatment of the non-religious.180 The common example of the celebration of Christmas in workplaces can be used as an illustration. It may be thought suitable, and a relatively straightforward step, in the interests of fostering good relations on grounds of religion and belief, to also allow for some marking of Hanukkah, Eid and Diwali at work, if there are workers wishing to do so, in order to achieve some equality between religions. However, it is not clear how fostering good relations between those with a faith or belief and those without can be achieved. Might a ‘celebration’ of atheism be needed, as well as one for agnosticism? If each religion were to be given a week in which it was allowed to ‘celebrate’ at work, could equality 177 K Clayton-Hathway, The Public Sector Equality Duty, Empirical Evidence Base (Oxford, Oxford Brookes University, 2013), at ; Government Equalities Office—Independent Steering Committee, Review of the Public Sector Equality Duty: Report of the Independent Steering Group (2013), at . 178 See Equality and Human Rights Commission, Equality Act 2010 Technical Guidance on the Public Sector Equality Duty: England (2014), at . 179 For discussion of the Public Sector Equality Duty as it applies to religion and belief, see A Lester and P Uccellari, ‘Extending the equality duty to religion, conscience and belief: proceed with caution’ [2008] EHRLR 567; L Vickers, ‘Promoting Equality or Fostering Resentment? The Public Sector Equality Duty and Religion and Belief ’ (2011) 31(1) LS 135. 180 A Lester and P Uccellari, ‘Extending the equality duty to religion, conscience and belief: Proceed with caution’ (2008) 5 EHRLR 567, 570.

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be promoted by the non-religious also having a week, or would four weeks better counter the four religious weeks? Alternatively, it might be that good relations with those who profess no religion are best served by allowing no religious celebrations at all, rather than by giving quantitative equal treatment. However, a ban on recognising religious festivals and practices at work, in the name of the promotion of equality, would be unlikely to achieve the aims of the Duty, and would cut across the provisions discussed above in which employers are likely to accommodate religious manifestation where it is easy to do so. In interpreting and applying the Duty, sensitivity will therefore be needed to the ways in which religion and belief may be the cause of disadvantage, together with a recognition of the interests of those with no religion. This will mean that in using the Public Sector Equality Duty, employers will need to take account of the competing facets of religion and belief, both the interests of those with a religion and the interests of those who prefer a religion-free workplace.

II. Religious Schools Special legal provisions govern protection against discrimination on grounds of religion and belief in schools.181 As regards the imposition of religious requirements on staff, the position in England and Wales is covered by special regulation of the Schools Standards and Framework Act (SSFA) 1998,182 to which the provisions of the Equality Act 2010 are subject. The SSFA 1998 protects teachers in nonfaith schools from religious discrimination,183 but allows faith schools to impose requirements regarding religion and belief on teaching staff.184 Schools with a religious ethos are common in Britain, even within the maintained sector,185 with over 30 per cent of maintained schools in England having a religious character.186 Although these are not all Christian in affiliation, the vast

181 For a history of religious schooling in the context, see J Rivers, The Law of Organized Religions: Between Establishment and Secularism (Oxford, OUP, 2010). See also L Vickers, ‘Freedom of Religion and Belief and Employment in Faith Schools’ (2009) 4 Religion and Human Rights 1; L Vickers, ‘New Issues for Negotiation: Schools and Religious Freedom’ in F Guesnet, C Laborde and L Lee (eds), Negotiating Religion (Aldershot, Ashgate, 2015). 182 As amended by the Education and Inspections Act 2006. 183 SSFA 1998, s 59. 184 See Education and Inspections Act 2006, s 37(2). 185 Schooling in Northern Ireland is largely organised on religious lines, and the recruitment of teachers is exempt from FETO 1998. 186 Around 7,000 of the 22,000 maintained schools in the England have a religious character. See at . To contextualise, around 60% of the population identified themselves as Christian in the 2011 Census, although the percentage attending church each week is significantly smaller: see ‘As a proportion of the population living within the dioceses of the Church of England …, 1.8% attended a Church of England church each week in October 2014’, at . See discussion at p 3.

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majority are. These schools are largely funded by the state, although they may also receive some additional funding from the Church.187 Thus although they have a religious input in terms of some funding and aspects of their governance, they are effectively public sector organisations. Before considering the position of teaching staff under the SSFA 1998, the position of other staff in schools will be discussed. In Wales, non-teaching staff are governed by section 60 of the 1998 Act, which provides that such staff cannot be disqualified from being employed by reason of their religious opinions, or by reason of attending or omitting to attend religious worship. With regard to nonteaching staff in England, the position is covered by the Equality Act. This means that it will be lawful to impose occupational requirements of a religious nature on staff, as long as it is proportionate to do so, having regard to the demands of the particular job. The type of work and level of involvement with children in the school is likely to be relevant in determining proportionality. For example, a teaching assistant or school librarian may have more involvement with children in the school than a caretaker or cleaner, even though neither is involved in direct teaching. In order to anticipate how the occupational requirement exception might apply to non-teaching staff, it is worth considering the case of Glasgow City Council v McNab.188 The case arose in Scotland, where the SSFA 1998 does not apply, so it was governed by the forerunner to the Equality Act, the Employment Equality (Religion and Belief) Regulations 2003, which contained similar provisions. Although it involved a teacher, rather than non-teaching staff, it illustrates the strict approach of the courts to the application of the general occupational requirement provisions under the Equality Act, as they might apply in the education context. The case involved an atheist teacher in a Catholic school, who applied for a post as a pastoral care teacher but was not offered an interview. The legal question essentially was whether the post of pastoral care teacher was covered by the occupational requirement exception. The tribunal found that it was not essential to the post that the holder be Catholic, as the responsibilities of the job involved giving advice on a large number of issues, only a few of which required knowledge of Catholic doctrine, and those could be assigned to a different teacher. Thus, being a Catholic was not a ‘genuine and determining’ requirement under the 2003 Regulations. The case shows that it will usually be difficult to convince a tribunal that being of a particular religion or belief is an occupational requirement even in faith schools, as it is rare (apart from where religious instruction is given) for religion to be a defining element of such a role. However, it may be possible to justify the imposition of an occupational requirement,189 so long as it is proportionate to do 187

In addition, the school site and buildings will be owned by the Church. Glasgow City Council v McNab UKEAT/0037/06. The case is complicated by the existence of an agreement with the local education authority to appoint only Catholics to positions as ‘guidance’ teachers, and the interaction of that agreement with the Education (Scotland) Act 1980. 189 In contrast, in Wales the position is governed by s 60(6) of the SSFA1998, which does not provide an occupational requirement exception to the non-discrimination principle. 188

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so in the context of the particular school and in the particular role. For example, it might be proportionate to impose an occupational requirement where the school is permeated by a religious ethos, where the employer is a church (eg voluntary aided schools) and where the factors that influence proportionality, discussed above, point towards the justification of any such occupational requirement. In contrast, teaching staff are governed by the SSFA 1998, and religious discrimination is allowed in some circumstances. The Act generally protects teaching staff in non-faith schools from discrimination on grounds of religion, but it provides broad exceptions whereby schools with a religious character can discriminate in favour of staff who share the religious ethos of the school. The provisions of the SSFA 1998 are complex because of the complex taxonomy of schools in the maintained sector (voluntary aided, voluntary controlled, community schools, foundation schools, academies and free schools), as well as private and independent fee-paying schools.190 The rules vary depending on the type of school involved, and so a brief definition of the different types of school is necessary. The different types of school that exist within the maintained sector are a product of the history of education in the UK. Prior to the involvement of the state in the provision of education, many schools were provided and funded by churches. From the late 1800s the state supplemented the education offered by the Church, creating a process of shared provision of public education between the state and religious bodies that continues today. By the turn of the twentieth century, church schools had been brought within the state system, but the state was unable or unwilling to incur the capital costs of building new schools. This led to a compromise, which involved bringing existing church schools within the state system by the state providing the maintenance costs;191 in return for providing school premises,192 the churches were allowed to control religious instruction within those maintained schools, as well as retaining some control over staffing. While a number of structural changes took place during and following the twentieth century, this significant compromise between religion and schools has largely survived.193 The 1944 Education Act introduced a distinction between two types of faith school: voluntary controlled schools and voluntary aided schools. Schools were able to opt to become either ‘voluntary controlled’ (with land and buildings owned by the church, but the local education authority funding the school,

190 In addition, there are City Technology Colleges, funded directly by the Government rather than via a local authority. 191 Faith schools receive grants (of up to 90% of the total cost) towards capital costs of the buildings and 100% of running costs (including teachers’ salaries) from the state: see at . 192 The school site and buildings continue to be owned by the Church. 193 See J Rivers, The Law of Organized Religions: Between Establishment and Secularism (Oxford, OUP, 2010); J C D Harte, ‘The Development of the Law of Employment and Education’, in M Hill, Religious Liberty and Human Rights (Cardiff, University of Wales Press, 2002); and P Petchey, ‘Legal issues for faith schools in England and Wales’ (2008) 10 Ecc LJ 174.

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employing staff and controlling admissions) or ‘voluntary aided’ (with land and buildings owned by the church, the governing body employing staff and controlling admissions, but the school funded largely by the local education authority). Under this system, voluntary aided schools enjoy greater independence in terms of admissions and the religious education syllabus; in return the Church provides more financial support as the school governors maintain the school buildings. Voluntary controlled schools are given greater central government funding for the buildings, and in return the school has less control over its staffing, discussed below. More recently, some academies and free schools have been added to the mix of faith-based state-funded education provision.194 Many faith-based schools thus date back to the early days of universal education. However, the collaboration of the churches with the state in the provision of education is not merely based on a historical compromise. More recently there has been an increase in the creation of faith schools that are not Christian,195 together with the creation of ‘free’ schools with a religious character,196 as well as a significant level of involvement of faith-based organisations in the sponsorship of academy schools.197 This means that numbers of faith schools remain high. Moreover, the freedom of free schools and academies from traditional controls over curriculum and local authority regulation has led to a number of schools with a very explicit and strong religious ethos.198 The legal provisions of the SSFA 1998 governing religious discrimination in the employment of teachers in faith schools vary according to the type of school and whether it has a religious character. Apart from community schools, which will not have a religious character, any of the other types of school (voluntary aided, voluntary controlled, foundation schools, free schools or academies) could have a religious character, and so be termed ‘faith schools’. The level of religiosity of faith schools varies hugely, however, with some merely nominally Christian, designated a ‘faith school’ due to historical funding arrangements, and others infused with a Christian ethos, with an explicitly evangelical agenda. It should be noted, however, that there is no formal link between the legal status of the school and its level of religiosity. A voluntary aided Church of England school or Churchsponsored academy could be very multicultural on the ground, with, for example, multicultural assemblies, minority religious dress codes and the accommodation of different religious holidays. A voluntary controlled school could have a stronger Christian ethos, with Christian prayers said every day and religious symbols

194

Not all free schools or academies have a religious character. For a review of the trend towards greater involvement of religious schools, see L Vickers, ‘Religion and Belief Discrimination and the Employment of Teachers in Faith Schools’ (2009) 4 Religion and Human Rights 1. 196 See at , 13 July 2012. 197 The Church of England is the biggest sponsor of academy schools under the original academy programme, at . 198 See . 195

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isplayed prominently in school. Yet, despite the variation in terms of the strength d of religious ethos, the legal regulation of faith schools depends on the governance structure of the school, rather than reflecting the religious character of the school in its day-to-day running. With regard to community schools and other schools that do not have a religious character, the SSFA 1998 provides that teachers cannot be refused employment, dismissed or deprived of promotion or other advantage by reason of their religious beliefs, for failure to attend religious worship or refusal to give religious education.199 To that extent the 1998 Act provides similar protection to teachers in non-faith schools as would be provided under the Equality Act. With regard to schools with a religious character, there is greater freedom to discriminate, although there is a distinction between voluntary aided schools, which have greater freedom to impose religious requirements on teaching staff, and voluntary controlled and foundation schools, where the extent to which religion can be used as a factor in employment decisions is more limited. In religious voluntary controlled or foundation schools, religion can be taken into account in appointing the head teacher, and regard may be had to his or her ‘ability and fitness to preserve and develop the religious character of the school’.200 In addition, the school can ‘reserve’ up to a fifth of its teaching staff, who can be ‘selected for their fitness and competence’ to give religious education in accordance with the tenets of the faith of the school.201 Although this may involve positive discrimination in favour of religious staff, the Act also allows that failure to comply with the tenets of the religion can be grounds for dismissal. Thus, the SSFA 1998 allows for religious discrimination in the appointment of the head teacher and reserved staff, and for the imposition of lifestyle requirements on them. Breach of those requirements can give grounds for dismissal. The Act protects other (nonreserved) teachers and support staff from discrimination on grounds of religious opinion, failure to attend religious worship, or refusal to give religious education at the school. The SSFA 1998 goes further in the case of teaching staff in voluntary aided schools and some faith-based academies.202 Not only can schools in this category take account of religion in deciding who to employ, but they can also consider religious practice in deciding on promotion, remuneration or dismissal of staff, as well as whether staff attend religious worship and are willing to give religious education at the school. Further, voluntary aided faith schools can take account of

199 SSFA 1998, s 59. The provision applies to working as a teacher, and being employed for the purposes of the school otherwise than as a teacher. 200 SSFA 1998, s 60, as amended by s 37 of the Education and Inspections Act 2006. 201 SSFA 1998, s 58. After amendment by s 37 of the Education and Inspections Act 2006, if the head teacher is appointed to teach religious education, the head teacher counts as a reserved teacher. This means that the extra religious requirements can be imposed on the head teacher. 202 These schools are governed by rules similar to those governing voluntary aided faith schools: Education Act 2011, s 62.

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any conduct that is ‘incompatible with the precepts, or with the upholding of the tenets, of the religion’ in deciding whether to terminate employment.203 Schools outside the maintained sector, independent and private schools, are governed by special provisions, which give them similar powers to discriminate on grounds of religion in order to preserve the religious ethos as are given to voluntary aided religious schools.204 It should be noted that the SSFA 1998 does not create any special exceptions with regard to other grounds of discrimination such as sex or sexual orientation. Thus, although the Act may allow discrimination on religious grounds, such discrimination will be unlawful if it results in indirect sex or sexual orientation discrimination. The exception for such discrimination with regard to employment for the purposes of an organised religion205 does not extend to general employment in schools.206 To a limited extent the rules governing the appointment and selection of teaching staff in schools parallel those that are applicable to all workers under the Equality Act. For community schools and others without a religious character, discrimination on grounds of religion is not allowed under the SSFA 1998; neither would it be under the Equality Act. However, for foundation schools, academies with a religious character and voluntary controlled schools with a religious character, the SSFA 1998 gives greater powers to schools to discriminate in favour of religious teachers than would be available if the Equality Act were to govern the employment status of teaching staff, because there is no requirement that any occupational requirements that are imposed in relation to religion should be proportionate. Moreover, in relation to voluntary aided schools, there are other significant areas of divergence between the SSFA 1998 and what might have been expected under the Equality Act. The possibility of applying faith and lifestyle requirements to all teachers in such schools, whether or not they are engaged in teaching religion, seems to go beyond what might be lawful under the Equality Act were it to apply. Voluntary aided church schools would be covered by the exception to the non-discrimination principle in Schedule 9 paragraph 3, which applies where being of a particular religion or belief is an occupational requirement for the job and it is proportionate to apply the requirement to the case. But with regard to teaching subjects other than religion, it is hard to see that being of a particular religion or belief would be an occupational requirement of the job, unless the school was very religious in its ethos, such that religion permeated the organisation and it was important to retain a religiously homogeneous staff. This might be the case in

203

School Standards and Framework Act 1998, s 60(5)(b). Independent Schools (Employment of Teachers in Schools with a Religious Character) Regulations 2003 (SI 2003/2037) inserted new ss 124A and 124B into the SSFA 1998. 205 Equality Act 2010, Sch 9, para 2, discussed above at pp 179–183. 206 R (on the application of Amicus-MSF and others) v Secretary of State for Trade and Industry and others [2004] IRLR 430. See discussion at pp 179–180 above. 204

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a small minority faith school; it is much less likely to be the case in a large multicultural comprehensive state school. It is thus arguable that the provisions of the SSFA 1998 go beyond what would be allowed under the Equality Act alone, in particular because they do not contain a requirement of proportionality in their application. Moreover, if the proportionality of the religious requirements imposed on staff in maintained schools were to be assessed in the light of the factors suggested above in Chapter 3, it may be that they would be found to be disproportionate. This is particularly the case when one takes into account the fact that the only difference between different types of schools is in the legal constitution and governance structure of the schools, rather than their commitment to a religious ethos. In practice, voluntary aided faith schools, or academies sponsored by the Church, may be no more ‘religious’ in nature than voluntary controlled faith schools. The question of whether they are controlled or aided often depends less on the religious nature of the education provided than on the levels of financial support available from the Church at the time of their adoption into the maintained sector. Moreover, the question of whether a school has academy status can depend on factors far removed from questions of faith.207 Some voluntary aided schools and academies are fairly secular in their practices, and some voluntary controlled schools are more explicitly Christian. The difference may depend on catchment area, the decision of the governing body, the availability of academy chain sponsors, the personality of the head teacher, or the history and custom of the school and its linked parish. Another factor that may militate against a finding that religious requirements are proportionate is the fact that, despite their different structures, all the different types of maintained school are largely funded by the state, and so form part of the public sector. Exclusion from employment on grounds of religion or belief could have a major impact on teaching staff, given the large proportion of schools that have a religious character. It was suggested in Chapter 3 that where the employer is the state, it may be appropriate to reflect the diversity of the population in recruitment. Enabling state-funded employers to discriminate on religious grounds does not help achieve that end. It is therefore arguable that were the position of school teachers in faith schools to be covered, as are all other employees who work in faith-based organisations, by the Equality Act rather than the SSFA 1998, the level of discrimination allowed on grounds of religion would be reduced. This raises the question of whether the provisions of the 1998 Act are compatible with the requirements of the Employment Equality Directive 2000/78. Although the provisions of Article 4(2) allow for exceptions permitting religious organisations to maintain a religious ethos and require loyalty from staff, it is arguable that the breadth of the exceptions allowed 207 Some schools become academies because they have been classified as struggling or failing; others are allowed to convert to academy status because they are judged outstanding or performing well. The move to academy status may owe much to the political position of the local authority, rather than to questions of faith.

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under the SSFA 1998, for voluntary aided schools in particular, is too broad to comply with the requirement in Article 4(2) that exceptions be legitimate and justified.208 If the SSFA provisions were either replaced by the general provisions of the Equality Act, or amended to introduce an proportionality requirement, the law governing the employment of teachers in faith schools would be brought back into line with the EU Directive. A proportionality requirement would enable courts to consider a wide range of issues in order to determine an appropriate balance between upholding the rights of religious organisations to discriminate in order to maintain a religious ethos, and the rights of teachers to pursue their careers free from religious discrimination. A number of factors may be relevant to the question of proportionality, not least the extent to which teachers’ freedom of religion, or freedom not to be religious, is infringed in practice by religious requirements imposed by schools. A review of proportionality might entail considering whether there are other options available to a teacher to teach or look for promotion elsewhere. For example, where there is only one religious school among several others in a particular location such as a city, the practical effect of discrimination by an employer may differ from where either a faith school is the only maintained school in a locality, or where a large proportion of schools in an area are faith schools. It is suggested that for these purposes a third of schools would count as a large proportion, as it is sufficient to have a significant effect on the job opportunities of teachers. A consideration of proportionality might also enable a tribunal to assess a school’s actual ethos, based on current practice, rather than basing the employment rights of teachers on the constitutional arrangements of the school, which are likely to be related to the settlement made in 1944, often based on the wealth of a particular parish and the extent of its financial resources. However, even where religion plays a central and defining role in the ethos of the school, it may not be proportionate to allow religious discrimination against staff where a state school is the only school, or one of a few in a particular area, thus reducing the effective choice of employer for teachers. It is one thing to allow some discrimination in a small number of faith schools in large urban area, where staff enjoy a real choice of schools in which to work. It is quite another to allow religious discrimination in up to a third of schools, many of which are in towns and villages that contain just one or two schools, so that teachers’ choice of employer and chances of career progression may be restricted because of their religion. It is suggested, then, that the current law governing teachers in faith schools in England and Wales does not provide the level of protection for religious interests that was advocated in Chapter 3. The provisions of the SSFA 1998 allow the collective interests of religious organisations greater protection than the i ndividual interests of employees and prospective employees, as religious schools are given significant freedom to act in a way that is contrary to the religious (or non-religious) 208 Following the decision of the EAT in Glasgow City Council v McNab UKEAT/0037/06, see p 30 and 215, that schools where the employer is the local authority cannot be viewed as religious ethos organisations, it is questionable whether the exception in Art 4(2) should apply to voluntary controlled schools.

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interests of individual teachers. This imbalance is the result of the lack of a proportionality assessment in the SSFA 1998, which means that religious requirements imposed by schools do not need to be weighed against any other interests. As a result, the usual balancing exercise, in which the different interests can be assessed and, where possible, reconciled, does not need to take place. In practice, not all schools take advantage of the powers to discriminate that they enjoy, but arguably this demonstrates even more clearly that those powers are not required by most schools. The inclusion of a proportionality test would allow for greater protection for the teaching staff in faith schools; it would give faith schools the same freedom to protect their religious character as other faithbased organisations outside of the schools context, allowing them to discriminate where it is proportionate to do so to maintain their religious ethos; and it would bring the SSFA 1998 into line with the Employment Equality Directive 2000/78. Moreover, such a change would be simple to implement: the model for achieving an appropriate balance between the needs of religious employers and the needs of employees, taking into account a full range of contextual factors, already exists in the Equality Act.

III. Protection of Religious Interests That are Not Protected by the Equality Act 2010 Prior to the introduction of the Equality Act, religious interests were given very limited protection within the employment relationship.209 That limited protection will still be all that protects any individual who falls outside the protection available under the Equality Act, for example an individual whose beliefs are not classified as a religion or belief, or whose treatment is found to be too tangentially related to religion to be classified as ‘because of ’ religion or belief. The residual protection for religious interests provided by general employment law is, effectively, that available under the general law on unfair dismissal, and the way in which this protection might apply to cases with a religious dimension will now be briefly considered.210 The general law on unfair dismissal is not particularly helpful in protecting religious interests at work. It imposes more onerous qualifying conditions, such as the requirement that applicants be employees and that they have worked for two years for the same employer before being granted protection. No protection is available for less favourable treatment during the recruitment or selection process, nor is 209 The exception would have been for those religions that could also be classified as ethnic or racial groups. Such groups will still be covered by the Equality Act provisions governing race discrimination, which are largely parallel to those protecting against religious discrimination. 210 For more detail on the law of unfair dismissal, see S Deakin and G Morris, Labour Law, 6th edn (Oxford, Hart Publishing, 2012).

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there any protection for detriment short of dismissal. Moreover, the remedies for unfair dismissal are different: reinstatement and reengagement are possible remedies but are rarely granted, and compensation is limited. Where an employee brings a claim for unfair dismissal, he must first show that there has been a dismissal. The onus then shifts to the employer to show that there was a fair reason to dismiss. The potentially fair reasons are limited to those listed in section 98 of the Employment Rights Act (ERA) 1996 (as amended), namely the capability or qualification of the employee, the conduct of the employee, the fact that the employee is redundant, that the continued employment of the employee is illegal, or some other substantial reason that justifies the dismissal of a person holding the position that the employee held.211 This last reason acts as a catch-all provision that can be used to cover almost any reason for dismissal. Where the employer can show that the dismissal was for one of the potentially fair reasons then the tribunal decides whether the dismissal was fair or unfair, having regard to the reasons shown by the employer and looking at whether, in the circumstances (including the size and administrative resources of the employer’s undertaking), the employer acted reasonably or unreasonably in treating the reason as sufficient for dismissing the employee, and this is determined in accordance with equity and the substantial merits of the case.212 The test of fairness contained in the legislation is of key importance in assessing the extent to which a dismissal for exercising the right to freedom of religion will be fair or unfair. The test is intended to be neutral as between the parties and so it is worded to ensure that the burden of proving fairness does not rest on either party. The fairness or unfairness of the decision to treat the reason as sufficient to dismiss is a question of fact;213 it is not the job of the tribunal to substitute its own judgment for that of the employer. It has long been accepted that there may be a range of employer responses that are reasonable and fair, and that as long as the employer’s decision to dismiss does not fall outside that range the decision will be fair.214 In effect, the benchmark against which the fairness of an employer’s response is being tested is that of other employers. Where it has been shown that many employers react in a certain manner to particular types of conduct, the tribunal has rarely found the reaction unfair, even though the decision may have been harsh.215 The ‘range of reasonable responses’ test of fairness216 has been criticised for merely reflecting current employer standards, rather than setting good

211

ERA 1996, s 98(1) and (2). ERA 1996, s 98(4). 213 UCATT v Brain [1981] IRLR 224. 214 Rolls Royce Ltd v Walpole [1980] IRLR 343; Richmond Precision Engineering Ltd v Pearce [1985] IRLR 179. 215 H Collins, Justice In Dismissal (Oxford, OUP, 1992) Ch 1. In Haddon v Van Den Bergh Foods Ltd [1999] IRLR 672, the ET found the decision to be ‘harsh in the extreme’, but still found it fair. 216 Adopted in Iceland Frozen Foods [1982] IRLR 439. 212

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standards.217 Employment Tribunal members do not assess whether they think that the employer acted correctly, but decide whether the employer’s actions were fair according to the standard of the reasonable employer. By accepting that there may be a ‘range’ of reasonable responses, tribunals effectively accept that fairness may be of varying standards, and that practices that fall below, and even well below, the standards of best practice can still be fair.218 It is open to employers to argue that although their actions were not ideal, when one takes into account commercial or other factors, they were within the range of responses that can be expected of reasonable employers.219 The standard of review is therefore very different from the standard required of a tribunal assessing proportionality. Even though the test of fairness used has been favourable to the employer, the unfair dismissal legislation nonetheless does provide a degree of protection for employees, and could be used by employees dismissed for exercising the right to freedom of religion in ways which are not protected by the Equality Act. The legislation requires that there be a reason for the dismissal that can, in principle, be fair, before the fairness of the actual dismissal is assessed. Where there is no good reason for dismissal, it will be unfair. For example, in Wigan Borough Council v Davies,220 the employer’s failure to provide support to an employee to enable her to carry out her job without harassment from colleagues was found to be a breach of contract entitling the employee to claim constructive dismissal. In such circumstances, it is difficult for an employer to show that dismissal was fair. In many cases, there will be a potentially fair reason, particularly given the ‘catchall’ provision, ‘some other substantial reason justifying the decision’. Thus where behaviour, even though religiously motivated, causes the employer difficulties, this may provide a substantial reason for dismissal, whether those difficulties are commercial or relate to personnel management. For example, a reason for dismissal may be found where relationships have clearly broken down between staff so that a team’s ability to work together is adversely affected;221 or employers could face pressure to dismiss from those outside the organisation, such as customers.222 The only question then is whether the dismissal is fair, according to the test discussed above. Although the test of fairness is favourable to employers, it will need to be interpreted in the light of the ECtHR jurisprudence on religious freedom, because of the requirement imposed by the HRA 1998 on courts and tribunals to interpret domestic legislation to comply with the ECHR. Thus, when assessing whether treatment of an individual was fair or unfair, taking into account the range of

217 ‘[T]he concept of fairness … becomes norm-reflecting rather than norm-setting’: P Elias, ‘Fairness in Unfair Dismissal: Trends and Tension’ (1981) 10 ILJ 201, 213. 218 Post Office v Foley, HSBC Bank (formerly Midland Bank) v Madden [2000] IRLR 827, CA. 219 H Collins, Justice in Dismissal (Oxford, OUP, 1992) 38. 220 Wigan Borough Council v Davies [1979] IRLR 127. 221 Treganowan v Robert Knee & Co. Ltd [1975] IRLR 247. 222 Scott Packing and Warehousing Co Ltd v Paterson [1978] IRLR 166. But see Grootcon (UK) Ltd v Keld [1984] IRLR 302, EAT; Wadley v Eager Electrical Ltd [1986] IRLR 93; and Dobie v Burns International Security Services (UK) Ltd [1984] IRLR 329.

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reasonable responses open to an employer, the tribunal will need to take into account the question of whether the employee’s rights under Article 9 ECHR have been protected. This was confirmed in Copsey v WWB Devon Clays Ltd.223 However, if protection is not available under the Equality Act, it is unlikely that protection would be available under the ECHR either:224 thus using the HRA 1998 to enable interpretation of the unfair dismissal protection to comply with the ECHR is unlikely to create any greater protection for employees who fall outside the protection under the Equality Act 2010. However, as well as assessing fairness in accordance with the standards of the ECHR, dismissals also need to be procedurally fair. If an employer fails to follow basic disciplinary procedures or is inconsistent in the treatment afforded to the employee in comparison with others, the dismissal can be unfair. As the law is currently interpreted, employment protection is weak for employees who exercise the right to freedom of religion at work but who do not come within the terms of the Equality Act. Where the legitimate interests of the employer, such as financial interests or the interest in effective management of the enterprise, are harmed by an employee’s exercise of religious freedom, dismissal is likely to be found to be fair. As long as any other similar cases have been treated consistently and appropriate procedures are used, any claim of unfair dismissal will probably fail.

IV. Conclusion The introduction of the Equality Act 2010 prohibiting religious discrimination at work raises some perplexing issues regarding the scope that should be granted to religious interests at work. This is largely due to the compound nature of religious discrimination and the competing interests it engages. Accommodation of religion upholds the religious freedom of the person accommodated, but may simultaneously undermine the freedom of religion and belief of another. Secular employers may discriminate against religious employees. Religious groups may wish to employ those of the same religion and so may discriminate against others. Discrimination can occur between those of different religions, or those of the same faith. Moreover, cases of religious discrimination may also involve discrimination on other grounds such as sex, sexual orientation or marital status. The creation of religious rights via the Employment Equality Directive in the EU, and thence in the UK, means that the control of religious discrimination forms part of a general framework of equality rights. This means that not only 223

Copsey v WWB Devon Clays Ltd [2005] EWCA Civ 932. Not least because the Equality Act 2010 will be interpreted to comply with the ECHR. The facts in Copsey occurred before the protection for religious discrimination was introduced, and so had to be decided on the basis of a claim of unfair dismissal only. 224

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is there inevitable interaction between equality rights, but the legal framework of protection uses virtually identical terminology for all grounds of equality, even though the religious ground involves multi-faceted interests of equality and the individual human right to freedom of religion and belief, covering both a negative and a positive right. These multiple interests mean that the proper treatment of religious interests at work is very complicated to determine, as it can depend on a range of factors such as the type of employer, and the socio-economic context of the case. The Equality Act needs to be interpreted in the light of the range of competing interests that arise and are identified in Chapter 3, including the need to uphold both a positive and a negative freedom of religion, as well as equality, autonomy, dignity and pluralism. Under the Equality Act, these interests require that tolerance of difference is maximised. This means that religion and belief can be accommodated at the workplace only to the extent that they do not infringe the rights of others. In most cases, any competition between discrimination rights is resolved in favour of gender, sexual orientation and other equality rights: religious grounds cannot be used to justify discrimination on other grounds in any but the most limited of circumstances. However, the freedom of religious groups to act in order to uphold their religious interests through the employment relationship is provided for where it is proportionate. The need for proportionality will mean that employers will rarely be able to create religiously exclusive workplaces, and may make this very rare in the public sector (with the anomalous exception of faith schools). The use of ‘proportionality’ was recommended in Chapter 3 as an appropriate way to determine the proper scope of religious protection in the workplace. Apart from the protection against direct discrimination, the protection for religious interests at work uses sufficiently indeterminate or discretionary language for reference to the concept of proportionality to be used in the interpretation of the Equality Act. ‘Occupational requirements’ are lawful only to the extent that they are proportionate; indirect discrimination is unlawful only where it cannot be justified as proportionate, and harassment occurs, in effect, where ‘in all the circumstances’ it is ‘reasonable’ for the behaviour to have the effect of infringing a person’s ‘dignity’. These terms are indeterminate in nature and allow the factors relevant to proportionality to be taken into account in any assessment of whether a claim is made out. The Equality Act therefore has the potential to be interpreted to accord with the model set out in Chapter 3. This would also accord with the best reading of the protection under the ECHR. The only area where there is no discretionary language is direct discrimination which occurs in the absence of an occupational requirement. However, the complexities of competing interests do not usually apply in cases of direct discrimination in the workplace, as the individual will have been discriminated against purely on the basis of belief.225 It is only once the belief is manifested that it creates 225 The absolute nature of the protection against direct discrimination mirrors the absolute protection for the forum internum under Art 9 ECHR.

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any interaction with other people, giving rise to complexity. However, this usually results in indirect discrimination226 rather than direct discrimination, and any interference with the manifestation of religion may therefore be open to justification, if it is proportionate. In Chapter 3 it was suggested that the reason for protecting religious interests at work was based on the importance of religious belief to individual autonomy and dignity. On this basis, being treated less favourably purely on the basis of belief is difficult to justify. Once the religious belief manifests itself in any way which interferes with the rights of others, however, complexity is introduced. That complexity can be addressed though the mechanism of the proportionality equation. Interpreting the Equality Act to accord with the model created in Chapter 3 would allow for a more flexible approach to the complex interplay of interests at stake when individuals seek to protect religious interests in the workplace. In the next chapter, the protection afforded to religious interests in the USA and Canada is assessed, to see what can be learnt from their different legal approaches to these universally complex issues.

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The discrimination will be as a result of the manifestation, not the belief itself.

6 Accommodating Religion and Belief in the Workplace: North American Perspectives Previous chapters have considered the protection of religious interests in employment in the UK, under the ECHR and in EU law, and a number of difficulties have been identified that may arise in terms of interpretation and application. It will now be instructive to consider case law from North America, to see whether it provides any guidance on how to tackle the difficult questions of principle that are common across jurisdictions. In particular, this chapter explores the experience of the USA and Canada of protecting religious interests in the workplace through a duty of reasonable accommodation. Such an approach has been under consideration in Europe,1 and a review of its application in other jurisdictions is therefore helpful when considering how the law in the UK and in Europe might best develop. Clearly, it can be problematic to make comparisons with other jurisdictions, especially if the historical, social and political contexts are different. In the case of the USA, for example, the historical and social context for the protection of religious interests differs significantly from that in Britain. The modern US state was founded in part by those arriving in North America to avoid religious persecution, and religion remains a force in politics.2 Equally, the USA has a long constitutional commitment to the separation of church and state, in contrast to the established status of the Church of England. Indeed, some have argued that the legal and cultural contexts in which the law operates can differ so much that comparisons between states run the risk of becoming meaningless or misleading.3 However, when one is looking at standards relating to fundamental human rights, comparative perspectives can be useful,

1 See See M-C Foblets and K Alidadi (eds), Summary Report on the Religare Project (RELIGARE, 2013), in Foblets et al (eds), Belief, Law and Politics: What Future for a Secular Europe? (Farnham, Ashgate, 2014) Ch 2. See also EU Parliamentary Assembly Resolution 2076 (2015), available at . 2 See S D Jamar, ‘Accommodating Religion at Work: A Principled Approach to Title VII and Religious Freedom’ (1996) 40 New York Law Sch LR 719. Moreover, the general level of employment protection in the USA is far lower than in Europe: in the USA the general rule of employment ‘at will’ prevails. 3 O Kahn-Freund, ‘On Uses and Misuses of Comparative Law’ (1974) 37 MLR 1.

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notwithstanding the different social contexts.4 When considering difficulties such as how to balance conflicting rights, the experience of other jurisdictions can be helpful. International comparisons can be instructive, precisely because the issues relate to commonly accepted rights, such as freedom of religion, and generalised concepts such as equality. A full examination of the treatment of religious interests at work in other jurisdictions is beyond the scope of this chapter. However, in presenting an overview of the main provisions of protection in the USA and Canada, some interesting similarities and differences will be seen.

I. United States of America In the USA, anti-discrimination provisions are contained in Title VII of the Civil Rights Act 1964.5 In addition, government workers are protected against religious discrimination under the Constitution, and many individual states have their own human rights laws that cover discrimination. There are hundreds of courts making decisions on cases involving religion, under many different local provisions, and so what can be offered here can only be a generalised view. However, Title VII of the Civil Rights Act applies in all states and to all employers, so is the focus of the discussion here. Under Title VII, discrimination on grounds of race, colour, religion, sex or national origin is prohibited. Title VII covers all employers with over 15 employees, those employed by the state and local government, as well as private sector employers. Both direct and indirect discrimination are covered, and the Act also creates a duty to make reasonable accommodation for religious practice. In addition, an exemption for ‘bona fide occupational qualifications’ (BFOQs) exists, enabling employers to impose requirements on staff that they adhere to a particular religion where it is necessary for the particular requirements of the job.

Meaning of Religion The term ‘religion’ includes ‘all aspects of religious observance and practice, as well as belief ’.6 The protection against religious discrimination extends beyond traditional religious groups to cover other deeply held moral and ethical views,

4 On the extent to which judges use comparative legal perspectives in adjudicating human rights cases, see C McCrudden, ‘A Common Law of Human Rights? Transnational Judicial Conversations on Constitutional Rights’ (2000) 20 OJLS 499. 5 42 USC§ 2000e-2. 6 Civil Rights Act 1964, s 701(j).

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including lack of belief,7 if the views are sincerely held with the strength of traditional religious views.8 While beliefs do not need to be religious, they must be deeply held ethical views, which hold a place parallel to religion in the life of the claimant. Thus, a belief in the beneficial effects of eating cat food was not a religion or belief that needed accommodating.9 Perhaps more useful in terms of guidance is the decision that political views such as those espoused by the Klu Klux Klan are not protected, because they are ‘political and social in nature’.10 However, a belief of a more religious nature in a white supremacist religion has been found to be capable of protection. In Peterson v Wilmur Communications,11 the claimant was a ‘reverend’ in the World Church of the Creator, whose belief system, called ‘Creativity’, taught that white people are superior to others. He was employed as a manager, supervising eight people, but was dismissed after writing a column in a local paper about his religion, for which he was photographed wearing a T-shirt commemorating a man who had been involved in a racially motivated killing. Following the publication of the column, Peterson was demoted away from his supervisory role. The court held that ‘Creativity’ was a religion, despite the findings relating to the Klu Klux Klan, and despite the fact that it had some political aspects. Peterson’s demotion, motivated because of his beliefs, was therefore discriminatory. In their acceptance that a wide range of beliefs can be covered by Title VII, the US courts provide a generous level of protection for religious freedom. However, acceptance that a set of beliefs is capable of protection by Title VII is not determinative of most discrimination cases. For example, claimants must also show that there was a failure to reasonably accommodate the religion, or the employer may show that there was a BFOQ for the job that the claimant lacked. Thus jobs involving any contact with other colleagues or members of the public are likely to require that employees treat others with respect and do not engage in political activity demonstrating racial or religious hatred, or disrespect for others. Such a defence was not put forward in the Peterson case, which turned only on the question of whether ‘Creativity’ was a religion or not, but it is possible that, had it been argued, Peterson’s case would have been unsuccessful. Alternatively, had the dismissal been for failing to accommodate his practice of declaring his faith through his newspaper column, it may have been arguable that the failure to accommodate would be reasonable, because to accommodate the belief would cause undue hardship to the employer, who does not have to tolerate the upset caused to other colleagues by the behaviour.12

7

Young v Southwestern Savings and Loan Association 509 F 2d 140 (5th Cir 1975). EEOC Guidelines, 29 CFR 16051, based on US v Seegar 380 US 163 (1965), and Welsh v US 398 US 333 (1970). 9 Brown v Pena 955 F Supp 898, aff ’d 134 F 3d 375 (1998). 10 Slater v King Soopers Inc 809 F Supp 809 (1992). 11 205 F Supp 2d 1014 (2002). 12 Ibid. 8

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Thus it is possible to have a generous and broad understanding of religion for the purposes of the discrimination protection, without having to provide broad and generous levels of accommodation for the practice of such beliefs when they are likely to cause offence to others. A further matter that has arisen in relation to discrimination because of religion at work is that a distinction is drawn between religious observance or practice and other behaviour motivated by religion. The protection against discrimination is based on religious practice and observance, and does not extend to behaviour motivated by religion. Thus, where a mother left work early without permission in order to be present to help set up and organise a children’s play at her church, the dismissal did not amount to religious discrimination.13 With regard to determining the belief of the employee, the US courts have held that it is not for the employer to judge the reasonableness of the employee’s beliefs. Moreover, even where employees cannot point to a religious group that shares their views, this will not prevent a finding that the particular individual holds a religious view. For example, in Van Koten v Family Health Management Inc,14 the applicant claimed to be a member of the ‘Wicca’ religion. Although the employer successfully defended the claim, because the employee had not told the employer of his religion, the court did accept that a person can be of a particular religion even though there is no religious group with the same views to which the employee can belong. Moreover, the fact that others of the same religion do not share exactly the same beliefs as the claimant does not prevent a claimant from bringing a discrimination claim. For example, a vow taken by a Christian to wear a badge bearing an anti-abortion message can be protected on religious grounds, even though not all Christians would take the same view of abortion.15

Direct and Indirect Discrimination Title VII protects against intentional and unintentional discrimination, providing protection against direct and indirect discrimination as the terms are understood in the UK. Thus it is unlawful to discriminate against an individual ‘because of such individual’s … religion’.16 Indirect discrimination, or disparate impact discrimination, was developed in Griggs v Duke Power Company,17 and reflects the idea that some work requirements will be harder for some to comply with than for others, leading to inequality in practice. Although originally a common law development, amendments were made to the Civil Rights Act 1964 in 1991 to deal with disparate impact claims. Section 703(k) provides that it is for the claimant to establish a prima facie case that a job requirement has a disparate impact on 13

Wessling v Kroger Co., 554 F. Supp. 548 (E.D. Mich. 1982). 955 F Supp 898, aff ’d 134 F 3d 375 (1998). See, eg, Wilson v US West Communications 58 F 3d 1337 (1995). 16 Civil Rights Act 1964, s 703(a)(1). 17 Griggs v Duke Power Company 401 US 424 (1971). 14

15

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those in the protected group. The employer must then show that the requirement is job-related and consistent with business necessity. This defence to indirect discrimination claims cannot be used in direct/intentional discrimination cases: it is not possible to justify direct/intentional discrimination.18 If the business necessity standard is met, the employee may still show that there is a less discriminatory alternative practice that would fulfil the business purpose. Where this can be shown, continued use of the employer’s requirement will be unlawful discrimination. Unequal treatment does not have to be motivated by a desire to discriminate; if sex, race or religion plays a part in decision-making then there can be discrimination, even if there are mixed motives in play. EEOC v Abercrombie & Fitch Stores, Inc19 raised a question regarding how much employers need to know about an employee’s religious needs before discrimination can be said to be intentional. The case involved a Muslim applicant for a job in an Abercrombie & Fitch clothing store. The store operated a Look Policy that prohibited the wearing of ‘caps’. The applicant was rated sufficiently highly for her performance to qualify her to be hired, but she had worn a headscarf to the interview, and so the interviewer consulted with managers about whether the headscarf complied with the Look Policy. The interviewer told the manager that the headscarf was worn for religious reasons, and she was then advised not to appoint the applicant. At first sight the case looked likely to raise the question of whether the applicant could require that her religious requirement to wear the headscarf had to be accommodated, and might have provided welcome clarification of the scope of the duty of accommodation (discussed below). However, the case was decided on narrower, more technical grounds, relating to whether the employer had to have actual knowledge of a request for accommodation before discrimination could be shown, or whether the fact that the employer was motivated to avoid accommodation was sufficient. The applicant had not actually asked for an accommodation; but the interviewer had recognised that there was likely to be a need to accommodate a religious practice, and this was the basis of the decision not to hire. The Supreme Court decided that in making the disparate treatment claim, the applicant only needed to show that her need for a religious accommodation was a motivating factor in the decision not to hire her, and she did not need to show that the employer had actual knowledge of an accommodation claim. Although the applicant had not asked directly for an accommodation, the decision not to hire her was still ‘because of ’ her religious practice, and so it was covered by the non-discrimination provisions of Title VII. The Court did not decide, however, the more interesting question of whether an employer such as a clothing retailer should be required to accommodate the headscarf. The case does make clear that employers will not need to wait until a request for a religious accommodation has been made by an employee before the duty to

18 19

Civil Rights Act 1964, s 703(k)(2). EEOC v Abercrombie & Fitch Stores, Inc 135 S Ct 2028 (2015)

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accommodate religion arises. In Abercrombie & Fitch, the interviewer and manager knew that the employee was a Muslim who wore the headscarf; the case did make clear that if an employer has no knowledge at all about the need for accommodation (for example, the accommodation does not relate to a visible religious practice), it will not be held to have discriminated against the employee if accommodation is not offered until a request is made. In the context of religion, the creation in 1972 of the duty of reasonable accommodation has displaced much of the use of indirect discrimination.20 Where an employee fails to meet a requirement imposed by an employer, this is treated as a question of whether the employer should accommodate the employee, rather than as a matter of indirect discrimination. Thus most of the guidance from the USA on how to balance religious interests against other interests is found in the case law on the duty to accommodate considered below, after discussion of the BFOQ and ministerial exceptions.

Bona Fide Occupational Requirements and the Ministerial Exception Section 703(e)(1) of the Civil Rights Act 1964 provides a general BFOQ exception to the non-discrimination principle. This enables employers to make religion a requirement for a job where it is reasonably necessary for the normal operation of the business. Where the job involves working as a religious minister, the BFOQ exception is superseded by the ‘free exercise’ provisions of the Constitution, requiring that religious groups be free to choose their leaders.21 The ministerial exception is justified on the basis that it is inappropriate for courts to interfere with the internal affairs of religious groups, so the protection of Title VII does not apply.22 However, this is a broad exception. Although it only applies to the appointment of those who are involved as ministers, this was expansively interpreted in Hosanna-Tabor Evangelical Lutheran Church and School v EEOC.23 The case involved a teacher in a religious school. The church that ran the school employed two categories of teacher, ‘lay’ and ‘called’. ‘Called’ teachers had completed a course of religious training, and were designated ‘Minister of Religion, Commissioned’. The school employed both sorts of teachers, but only appointed lay teachers when no ‘called’ teachers were available. The duties of both types of teacher were very similar, although as well as teaching duties, the ‘called’ teacher in Hosanna-Tabor taught a religion class, led students in daily prayer and led the chapel service about twice a year. The job therefore clearly had religious elements to it, but it was predominately a teaching role. Moreover, the fact that the school was willing to substitute a non-called teacher where no ‘called’ teacher was available suggests that fulfilling 20

EEOC v Sambo’s of Georgia 530 F Supp 86 (1981). Kendroff v St Nicholas Cathedral of the Russian Orthodox Church of North America 344 US 94 (1952). 22 McClure v Salvation Army 460 F 2d 553 (5th Cir 1972). 23 Hosanna-Tabor Evangelical Lutheran Church and School v EEOC 565 US_(2012). 21

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the religious role was not an absolute requirement of the job. The case involved a disability discrimination claim brought by a ‘called’ teacher against the school. The school successfully relied on the ministerial exception to defend the claim, arguing that the fact that employment relationship was between a religious institution and one of its ministers meant that the claim was barred. The ministerial exception is well established, and similar exceptions can be found in most legal frameworks governing religious discrimination. The ECHR allows for freedom in the choice of religious leader.24 In the UK there are special exceptions for those undertaking work for religious ethos organisations, and more extensive exceptions for those working for the purpose of an organised religion, allowing for discrimination on grounds of sex or sexual orientation where that is necessary to comply with religious doctrine, or to avoid conflict with the religious views of a substantial number of the religion’s followers.25 However, this latter exception, allowing discrimination on grounds other than religion, is narrowly interpreted in the UK. Any exception to the non-discrimination rules will only apply where the job in question is defined by religion, with religious duties at its core: the ability to substitute a non-religious employee would likely prove fatal to any claim for the exception to apply. These exceptions, as with the US ministerial exception, uphold freedom of religion by allowing religious organisations to appoint their leaders free from state interference. However the US ministerial exception goes much further than those allowed in the UK or under the ECHR. In Hosanna-Tabor the exception was applied to a school teacher, albeit in a religious school, whose core duties related to teaching subjects such as maths, science, gym, art and music to children in kindergarten and fourth grade. She was covered by the exception because the church designated her as a minister of religion, even though the school was also willing at times to employer non-ministers to undertake the work. The Supreme Court took the view that it would be an interference with the religious freedom of the church for a court to determine who is and who is not a minister of religion for these purposes. It would not even consider whether the firing of the teacher for bringing a disability discrimination claim might be a pretext. Instead, it held that the purpose of the exception is not just to protect hiring decisions made on religious grounds: it is to ensure that any decision regarding who should be a minister should remain that of the church. A number of limitations imposed by other states regarding the scope of any religious exceptions to equality law were not accepted in Hosanna-Tabor. For example, the Court was not swayed by some of the factors that are taken into account in other jurisdictions, such as the fact that being ‘called’ was not a determinative feature of the teaching job and that there were also lay teachers in the school. Nor was it swayed by the fact that the school’s discrimination was on grounds of disability, so that the discrimination was not necessary to avoid conflict with the religion’s 24 25

See discussion at p 128. See discussion at pp 174–177 and 179–183.

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teaching. The decision could have been narrowed by restricting its finding to cases involving the teaching of religion (a task that did fall within the teacher’s remit in the case), or the Court could have relied on the fact that the discrimination in issue was not needed in order to meet doctrinal requirements. However, these potential limitations on the scope of the decision were not imposed. Instead, in its decision the Supreme Court focused on the teacher’s status as a minister as determinative of her claim, and upheld the freedom of churches to decide the status of their ministers, free from state interference. In cases where there is no ministerial exception but where there is a religious requirement linked to a job, the BFOQ exception applies. For example, in Fike v United Methodist Children’s Home of Virginia, Inc,26 involving the appointment of a director for a care home that had been founded by the Methodist Church and which maintained close association with it, a requirement that the director be a Methodist minister was not allowed as a BFOQ, as the work was largely secular, despite the religious nature of the foundation. Where a requirement imposed by an employer discriminates against others on other grounds, it will not be accepted as a BFOQ, except where the ministerial exception applies as described above. Thus in Bollenbach v Board of Education of Monroe Woodbury Central School District,27 a bus company assigned male drivers to a school bus route that transported boys to private religious schools. The boys would not board a bus driven by women. When men were assigned to the route in breach of the usual seniority system for assigning routes, the female drivers complained. The employer was unsuccessful in its attempt to argue that women lacked a BFOQ for driving the route because the boys would not board the bus. The preference of clientele for a male driver could not make being male a BFOQ. In addition to the general BFOQ exception, an additional exception is provided in section 702 of the Civil Rights Act 1964 for non-profit making religious organisations and societies. Where there is a clear religious dimension to the organisation’s work, the section 702 BFOQ exception can apply even to secular activities of religious organisations, as long as the activity is non-profit making. Thus, for example, where a church operated a gymnasium that was open to the public, it was entitled to dismiss a caretaker for failing to comply with religious standards of behaviour, even though he had a secular role in a secular activity.28 Where activity is for profit, however, religious discrimination will remain unlawful, as for any other employer.29 The restriction to non-profit activity fits with the suggestion in

26 Fike v United Methodist Children’s Home of Virginia, Inc 547 F Supp 286 (1982). See W Stickman, ‘An Exercise in Futility: Does the Inquiry Required to Apply the Ministerial Exception to Title VII Defeat its Purpose?’ (2005) 43 Duq LR 285. 27 Bollenbach v Board of Education of Monroe Woodbury Central School District 659 F Supp 1450 (1987). 28 Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v Amos 483 US 327 (1987). 29 Unless the job is religious in nature, in which case the s 703(1)(e) exception will apply. See Hishon v King & Spalding 467 US 69 (1984).

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Chapter 3 that religious discrimination should be more limited where an organisation interacts with the public marketplace. The reason for the restriction of the exception to non-profit making work is that to allow religious organisations to discriminate with regard to their profit-making work would be to breach the nonestablishment clause of the US Constitution, as it would amount to giving privileged legal protection to religious organisations over those with a secular base.30 The position of religious employers contrasts with the position in the UK, where religious employers can use the occupational requirement exception for any part of the business where religion is relevant to the job, not just non-profit activity. Moreover, the occupational requirement for religious ethos employers applies in Britain even where religion is not a determining aspect of the job, as long as it is an occupational requirement and it is proportionate to impose the requirement. This broader exception for religious ethos employers does not at present exist within the US framework of protection where the employer is profit-making. For example, in EEOC v Townley Engineering,31 the employers were ‘born again’ Christians and wanted to run the engineering and manufacturing firm as a faithoperated business. To this end, it printed Bible verses on invoices, donated money to churches and held a weekly devotional service during working time, which all staff had to attend. One atheist employee left the organisation when required to attend the services.32 The Court held that the BFOQ exception for religious organisations did not apply to Townley Engineering, as it was a for-profit organisation.33 However, the clear distinction in treatment between for-profit organisations and not-for-profit organisations is called into question by the decision in Burwell v Hobby Lobby,34 in which the Supreme Court upheld the religious freedom rights of closely held35 for-profit organisations. The case involved the requirement imposed by the state on all employers to provide health insurance for staff, under the Patient Protection and Affordable Care Act (ACA, also referred to as Obamacare). The requirement was objected to by a number of religious organisations because it involved providing insurance cover for contraception services. An exemption had been provided allowing religious organisations to opt out of the provision of the contested services, and the case before the Supreme Court involved a claim by for-profit religious employers to be allowed the same exemption. The Supreme Court upheld the rights of the companies involved, on the basis that they were legal persons who could enjoy religious rights. The case has huge significance for the development of religious freedom laws in the US. However, it did not cover the

30 See Lemon v Kurtzman 403 US 602 (1971) and Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v Amos 483 US 327 (1987). 31 EEOC v Townley Engineering 859 F 2d 610 (9th Cir 1988), discussed below. 32 He had been given permission to read or sleep during the services, but attendance was mandatory. 33 For an argument in favour of recognising ‘quasi-religious’ organisations see E Reuveni, ‘On Boy Scouts and Anti-Discrimination Law: The Associational Rights of Quasi-Religious Organizations’ (2006) 86 Boston U LR 109. 34 Burwell v Hobby Lobby 573 US __ (2014). 35 The organisations were owned by a small group of family members.

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protection against religious discrimination in employment under Title VII; and the Court was clear that the case was concerned only with the issue of contraceptives under the ACA. It can thus be assumed that the religious rights of for-profit employers will not automatically prevail over the non-discrimination rights of staff. Nonetheless, in deciding that commercial organisations can have their religious beliefs protected, and may, on this basis, opt out of laws they feel are incompatible with their beliefs, the protection against discrimination for employees of such organisations is left rather vulnerable. One further exception is provided in respect of schools, colleges and universities. Section 703(e)(2) provides an exception for religious educational establishments, where the establishment is owned, supported, controlled or managed by a religious association or society, or where the curriculum of the educational establishment is directed towards the propagation of a particular religion. The exception is fairly narrowly interpreted: where a school was set up under the terms of a will trust, with the terms of the will stating that teachers must be Protestant, the exception did not apply. The school was not actually owned, controlled or managed by a religious group, but by a trust that was secular in nature. The normal curriculum was taught, rather than a curriculum aimed towards the propagation of the faith, and so the second limb of the exception did not apply either.36 Where the exception does apply, it only allows for discrimination on grounds of religion, and provides no defence to any claim of discrimination on other grounds such as gender.37

Duty to Accommodate As originally drafted in 1964, the Civil Rights Act did not contain a duty of reasonable accommodation. It is arguable that such a duty can be read in to the duty not to discriminate, as the barriers put up for religious practice by employers may have a disparate impact on religious observers. However, it was felt that amendment was required to make clearer that religious freedom requires the protection of religious practice or observance, as well as protection of belief itself, and that the Title VII protection should extend to the protection of religious practice:38 if staff were to be protected in their rights to practise their religion, then a level of accommodation was required. As a result, Title VII was amended in 1972 to include a duty on the employer to accommodate the religious practices of employees, as long as to do so did not cause undue hardship to the employer. The amendment was made to the definition of religion: The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to

36

EEOC v Kamehameha Schools/Bishop Estate 990 F 2d 458 (9th Cir 1993). Rayburn v General Conference of Seventh Day Adventists 772 F 2d 1164 (4th Cir 1985). 38 See S Silbiger, ‘Heaven Can Wait: Judicial Interpretation of Title VII’s Religious Accommodation Requirement Since Trans World Airlines v Hardison’ (1985) 53(4) Fordham LR 839. 37

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an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.39

The provisions are designed to cover matters such as requests for time off work for religious observance, and the Equal Employment Opportunities Commission (EEOC) provides guidelines as to the types of accommodation that might be expected, for example flexible scheduling, voluntary swaps, job reassignments and modification of grooming requirements. However, despite the suggestion from the wording of the duty and the EEOC’s guidelines that religion should be accommodated unless there is undue hardship, the interpretation of the duty to accommodate has been somewhat restrictive, leaving employers with a rather slender duty to fulfil. Undue hardship has been interpreted to mean that, if accommodation is to be required, there must be no more than de minimis cost, either in terms of financial cost, or in terms of disruption or administrative inconvenience.40 The hardship must operate on the conduct of the employer’s business.41 It must create some form of economic hardship and cannot be merely hardship of a spiritual nature. For example, in Townley Engineering,42 where the employer sought to run the firm as a Christian, faith-operated business, weekly mandatory devotional services were held during working time, and the employer sent out gospel tracts with outgoing mail and printed Bible verses on invoices. The employers argued that accommodating an atheist employee by excusing him from attendance at the weekly service would cause ‘spiritual’ hardship to the company, as it would ‘chill’ its religious purposes. The Court accepted that spiritual hardship could exist, but held that the restriction in section 701(j) to hardship in the conduct of the business ruled out the use of non-economic harm to justify a refusal to accommodate religion. Excluding spiritual hardship may make it harder to override the duty to accommodate, but the low level of economic hardship required still means it is fairly easy to override the duty in practice. The main parameters of the duty of accommodation were set out in two cases before the Supreme Court, both involving members of the Worldwide Church of God. In Trans World Airlines, Inc v Hardison,43 a clerk in the stores department of Trans World Airlines (TWA) asked to change his hours after having joined the Church. The stores operated 24 hours a day, all year, and he wished to avoid working from sunset on Friday until sunset on Saturday. The shift system at TWA was operated on a seniority basis, agreed through a collective

39 42 USCA § 2000e j. As the Court of Appeals 3rd Circuit has pointed out ‘Thus, perhaps counterintuitively, if an employer cannot accommodate a religious practice without undue hardship, the practice is not “religion” within the meaning of Title VII’: US v Board of Education for the School District of Philadelphia 911 F 2d 882 (1990 CA 3rd Cir). Failure to offer reasonable accommodation can make the employer liable for punitive damages. 40 Ansonia Board of Education v Philbrook 479 US 60 (1986). 41 42 USCA § 2000e j. 42 EEOC v Townley Engineering 859 F 2d 610 (9th Cir 1988), noted above. 43 Trans World Airlines, Inc v Hardison 432 US 63 (1977).

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bargaining system. At first, Hardison’s request was accommodated, as he had sufficient seniority to enable him to be given his requested shifts in accordance with the collectively agreed system. However, after having been moved to a new part of the business he lost seniority, and could no longer arrange shifts to suit his religious beliefs. The union was unwilling to agree a waiver of the seniority system to enable his beliefs to be accommodated, and TWA would not allow him to work a four-day week, as that would mean incurring the additional expense of employing an extra worker for Saturdays. When he was dismissed, the court had to determine whether a reasonable accommodation had been available for Hardison. The Supreme Court ruled that the options available to the employer (overriding the seniority system that had been agreed with the union, or allowing Hardison to work a fourday week at extra cost to the employer) would have imposed undue hardship on it. The Court took the view that to override a seniority system would mean denying one member of staff ’s preference in favour of another’s preference, and would not be reasonable. Overall, the Court ruled, the employer does not need to take on more than de minimis costs in order to offer reasonable accommodation. The second case, Ansonia Board of Education v Philbrook,44 involved a request to use ‘personal business’ leave to supplement leave for religious observance, so as to enable the applicant to take sufficient paid days off for religious observance. The employer would not allow the paid ‘personal leave’ days to be taken for this purpose. The employer was only prepared to accommodate the request for extra leave by allowing Philbrook to take unpaid leave. The question that arose was whether the employee has to accept a reasonable offer of accommodation once it is offered (here the unpaid leave), or whether he can claim that a failure to offer his preferred accommodation (here the paid ‘personal business’ leave) is unreasonable. The Supreme Court held that once the employer has shown that a reasonable accommodation has been offered, the employer’s duty ends. The fact that an employee can identify an alternative accommodation that he or she would prefer does not change matters: the employer is under no obligation to offer the employee the least disadvantageous accommodation available.45 There is a requirement on the employee to be flexible in accepting an accommodation if it is reasonable, even if he can identify less disadvantageous accommodations. The combined effect of Hardison and Philbrook suggests that the duty of accommodation is more apparent than real. In effect, although a duty to accommodate exists, it is so easily overridden that employees’ religious interests are given very little practical protection. Once a countervailing interest is identified, the duty on the employer to accommodate religion tends to give way. In this respect, the level of accommodation required for religious practice can be contrasted with that

44

Ansonia Board of Education v Philbrook 479 US 60 (1986). reaching this conclusion, the Supreme Court disregarded guidelines produced by the EEOC that suggested that where there is an alternative accommodation that does not cause hardship, the employer should offer the one that least disadvantages the religious employee. See also EEOC v Ilona of Hungary 108 F 3d 1169 (7th Cir 1997). 45 In

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required in disability cases, where undue hardship is defined to mean an action requiring significant difficulty or expense.46 In religion and belief cases, it would seem, then, that what is given with one hand via the duty of accommodation is taken away with the other via the low level of hardship needed to defeat the duty.47 However, even though the standard of hardship is set low, employers are required to make some attempt to accommodate; and there must at least be real hardship, not merely hypothetical hardship.48 This means that the employer cannot rely, for example, on the fact that other staff might become unhappy, but must show that they will be. In effect, the duty of reasonable accommodation puts the onus on the employer to show that it has thought about trying to accommodate and has actual reasons why to do so would be difficult. One matter that can give rise to hardship to the employer is a negative reaction to any accommodation by other staff. The cases are not always consistent on this issue. On the one hand, a refusal by other staff to accept a religious practice can give rise to undue hardship for the employer, and can give grounds to refuse to accommodate. Thus, in Wilson v US West Communications,49 a Catholic employee, who wore a badge with a picture of an aborted foetus on it as part of a vow to be a ‘living witness’ against abortion, was dismissed because her colleagues found the badge offensive. The court held that the duty to accommodate did not require an employer to allow an employee to impose her views on others. On the other hand, as already mentioned, any hardship to the employer must be real, and cannot be purely hypothetical. Thus, in Burns v Southern Pacific Transportation Co,50 the employer argued that to accommodate a Seventh Day Adventist’s refusal to pay union dues would cause dissention among workers, leading to inefficiency. This was rejected by the court, which stressed that undue hardship requires more than just proof that some employees would grumble. The employer would need to show that other employees were imposed upon, or that the work routine would be disrupted.51 Having set out the basic framework of the US duty to accommodate, it is worth considering how it has been applied to various common matters that can cause difficulties for employees in reconciling work and religious practice: working time, dress codes, work tasks and work cultures which conflict with religious beliefs. Working Time Many cases, including the seminal cases of Hardison and Philbrook, involve reconciling working time with religious observance. Difficulties involve 46

Americans with Disabilities Act 42 USC Sec 12111 (10) (1990). See, further, J D Prenkert and J M Magid, ‘A Hobson’s Choice Model for Religious Accommodation’ (2006) 43:3 American Business LJ 467. 48 EEOC v Alamo Rent-A-Car LLC, 432 F.Supp. 2d 1006, 1016 (D Ariz 2006); and Opuku-Boateng v California, 95 F3d 1461, 1473–74 (9th Cir 1996). This is despite the fact that in Hardison the Supreme Court did allow TLLWA to rely on hypothetical hardship. 49 Wilson v US West Communications 58 F 3d 1337 (1995). 50 Burns v Southern Pacific Transportation Co 589 F 2d 403 (9th Cir 1978). 51 See also Tooley v Martin-Marietta Corp 648 F 2d 1239 (1981); and EEOC v Townley Engineering 859 F 2d 610 (9th Cir 1988). 47

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requirements to work on religious days of rest and the need for leave from work to attend religious ceremonies. In most cases, where employers allow some flexibility, such as letting staff arrange shift swaps, they will be found to have met their obligation to accommodate religion. If the facility to swap shifts exists, the employer will have met the obligation to accommodate, even though such a facility may not work to accommodate the employee in all cases. Only if no attempt is made to accommodate will the employer be found to have failed in its duty.52 The employee cannot require a specific accommodation, if what is offered by the employer is found to be reasonable. In cases involving the arrangement of shifts, the courts are clear that the duty of accommodation carries with it a responsibility on employees to attempt to accommodate their religious needs through the means offered by the employer.53 Moreover, the fact that a religious accommodation will involve a reduction in pay or a demotion will not prevent a finding that it is reasonable.54 In such cases, the employee cannot show a failure to offer reasonable accommodation just because he or she would prefer a different accommodation to be granted. Overall, the duty to accommodate does not impose very stringent demands on employers in terms of helping staff to reconcile religious observance with working time. The need of the employer to have an adequate workforce available to serve the business needs of the enterprise, and to balance the working time of all staff, takes precedence over the need to accommodate religious practice at work. Dress Codes Uniform and grooming codes are clearly capable of conflicting with religious dress codes, perhaps the most common being requirements to avoid head coverings that conflict with the religious practices of Sikhs and Muslims. As with other religious practices, the basic position is that dress code requests should be accommodated unless to do so would cause undue hardship. Where there was a statute banning religious garb in schools, a court held that the employer would suffer undue hardship if it were expected to contravene the statute, as the statute served the legitimate purpose of maintaining religious neutrality in schools.55 However, in the absence of hardship, religious dress should be accommodated. For example, a general statement that deviating from the company’s carefully cultivated image would amount to hardship is not sufficient to avoid the duty to accommodate. In EEOC v Alamo Rent-A-Car56 the employee worked in a car rental office, and was involved in serving customers. She asked to wear a headscarf during Ramadan, but was refused. The employer required her to remove the headscarf while working with customers, and also refused to move her from her work involving meeting customers for the period of Ramadan. The court held that Alamo failed to show undue hardship. 52

EEOC v Ithaca Industries 849 F 2d 116 (4th Cir 1988). Breech v Alabama Power 962 F Supp 1447 (1997). Matthewson v Florida Game and Freshwater Fish Comn 6939 F Supp 1044 (1988). 55 US v Board of Education for the School District of Philadelphia 911 F 2d 882 (1990). 56 EEOC v Alamo Rent-A-Car LLC, 432 F.Supp. 2d 1006, 1016 (D Ariz 2006). 53 See 54

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However, the case law is not always consistent, and despite the finding in the Alamo case, in many more instances courts have accepted that the image or reputation of the employer can be damaged by religious or unorthodox dress, and that this can constitute undue hardship. For example, the continued employment of a shop assistant who refused to cover facial jewellery such as an eyebrow piercing (motivated by her membership of the ‘Church of Body Modification’) would cause undue hardship to the employer, as it would prevent it from presenting to the public a workforce with a reasonably professional appearance.57 The cases illustrate the low level of protection afforded to religious practice as a result of the decision in Hardison that hardship need only be at a de minimis level. They also illustrate the difference in the standard of protection afforded to religious discrimination, in contrast to that for sex discrimination, where the preference of clients would not be accepted as a justification for discrimination.58 Work Tasks59 Religious members of staff may ask to be removed from certain tasks at work because they are incompatible with their beliefs. For example, staff may ask not to be involved in any work that is linked to abortion, or gambling or other behaviour they believe is wrong. Here again, the hardship caused to employers in having to make special arrangements in the assignment of work will usually mean that such requests do not have to be accommodated. Moreover, the matching duty on religious employees to be flexible and to accommodate the employer60 also means that they will find it difficult to claim that a failure to allocate tasks according to religious preference is unlawfully discriminatory. Accommodations such as allowing voluntary swaps of tasks or offering to redeploy are reasonable,61 although this will only be feasible where the employer is large enough and skills are transferable. In the case of medical staff who wish to avoid providing medical care such as abortion, they would also be expected to refer patients to staff who will provide the service. Where the reallocation of work is not practical, dismissal can be lawful. Thus, where a counsellor refused, for religious reasons, to counsel clients who were homosexual or who were involved in extra-marital relationships, dismissal was not discriminatory: it would not be possible to determine in advance whether such an issue might arise in a counselling relationship, and to allow staff to opt out of some tasks would lead to an uneven distribution of work among colleagues.62 Work Cultures Some employees have claimed that their religion prevents them from participating in training or complying with workplace diversity policies: employees have objected to ‘diversity’ training as they believe it requires them to 57

Cloutier v Costco 390 F 3d 126 (2004). Diaz v Pan American World Airways, 442 F 2d 385 (5th Cir 1971). 59 Some states are currently considering legislation that will allow an employee to opt out of some tasks based on religious convictions. 60 Ansonia Board of Education v Philbrook 479 US 60 (1986). 61 Shelton v University of Medicine and Dentistry of New Jersey 223 F 3d 220 (2000). 62 Bruff v North Mississippi Health Services 244 F 3d 495 (2001). 58

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condone homosexuality. Employers have not generally been required to accommodate such objections. The need to promote diversity and tolerance within the workplace has been seen as legitimate, and the hardship caused to an employer if he is prevented from promoting such a culture at work is seen to override any duty to accommodate religion. Thus in Peterson v Hewlett Packard,63 Peterson displayed Bible verses denouncing homosexuality in response to posters celebrating the diversity of the Hewlett Packard workforce and the presence of female, ethnic minority and gay workers. Peterson’s refusal to desist led to his dismissal, which was held not to be discriminatory. To require the employer to stop the diversity programme would have amounted to undue hardship. Interestingly, the courts have allowed some accommodation of religious views that are critical of homosexuality, where to do so does not lead to any active discrimination against other workers. For example, Buonanno v AT&T Broadband LLC64 involved an employee who was required to sign a diversity statement that stated that he ‘valued’ the differences among people. He claimed that this required him to make a statement that was supportive of homosexuality, even though this was incompatible with his religious view that homosexuality was sinful. He was prepared to sign an alternative statement agreeing to value the fact that there are differences between people (as opposed to valuing the differences themselves). Given that the employee in question had no intention of discriminating against or being disrespectful towards homosexual staff, and that a form of words that was compatible with the employer’s diversity policy could have been found, the court determined that the employee’s religious views should have been accommodated. The employer’s refusal to investigate the possibility of an alternative wording amounted to a failure to accommodate; investigating a minor amendment to the wording of the statement would not cause undue hardship to the employer. It was significant to the decision that Buonanno was not asking to be exempt from the duty to respect others in the workplace. Indeed, he was prepared to sign a statement that involved a commitment to respect others. However, he was not prepared to sign a statement with which he disagreed, on religious grounds. In terms of balancing interests, Buonanno’s freedom of conscience could be accommodated as long as he was prepared to respect the diversity policy of the company in practice. Conclusion The cases illustrate that a range of fairly low level accommodations can be found to be reasonable by the courts. For example, using annual leave or unpaid leave is a common accommodation that courts will treat as reasonable, or moving staff to alternative duties, or requiring the employee to accept reductions in pay or status in order to reconcile work demands with religious conscience. These accommodations, if offered, cost the employer little, and leave the employee with no choice but to accept; there is no right to request a more advantageous accommodation if what is offered is deemed reasonable. The fact that such a low 63 64

Peterson v Hewlett Packard 358 F 3d 599 (9th Cir 2004). Buonanno v AT&T Broadband LLC 313 F Supp 2d 1069 (2004).

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threshold of hardship is required to override the duty of accommodation may suggest that the protection offered by the duty is worthless. However, the duty does achieve some measure of protection for religious interests at work. The existence of the duty means that employers must make an attempt to accommodate. Although only de minimis hardship is required, it must be real and not merely hypothetical. In effect, the onus is put on the employer to show that it has thought about trying to accommodate and has actual reasons why to do so would be difficult. Such a level of duty does not lead to a high level of protection for staff, but it does mean that religious interests can be granted some degree of protection at work. The duty provides a mechanism whereby the employees will feel free to request an accommodation. It also means that religious interests can be considered by the employer, who may reject them only where there are other interests that clash with the religious interests.65

Harassment Within the US context, harassment is viewed as an aspect of discrimination. Although not directly defined in Title VII of the Civil Rights Act 1964, it has developed via its case law on sex discrimination into a well-recognised form of discrimination.66 The development stems from the recognition that the creation of a hostile environment at work, if severe enough, can alter the conditions of employment and so amount to discrimination. The concept of harassment comprises quid pro quo harassment and hostile environment harassment. Quid pro quo sexual harassment arises where a supervisor uses the acceptance or rejection of sexual advances as a basis for employment decisions. Although quid pro quo religious harassment may be less common than its counterpart based on sex, courts do take into account any potential abuse of position in assessing whether religious harassment is actionable.67 This is especially the case with regard to proselytism at work. Proselytism, or seeking to convert others to a religious view, can give rise to harassment claims if it is pervasive and the proselytiser knows that it is unwelcome. Where it occurs between those of a similar rank, it is less likely to be found to be harassing than where a manager tries to convert an employee or appears to attach weight to matters such as church attendance when assessing work performance.68 The other form of harassment, hostile environment harassment, consists of unwanted conduct on the basis of religion. The conduct must be severe and pervasive before it becomes actionable, but does not need to be so bad that it causes 65 The question of whether a duty to accommodate could be useful in the domestic context is discussed in the concluding chapter. 66 Meritor Savings Bank v Vinson 477 US 57 (1986). 67 See, eg, Brown Transport Corp v Commonwealth 133 Pa Comm 545, A 2d 555 (1990). 68 Venters v City of Delphi 123 F 3d 956 (1997).

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psychological injury. There is no concrete test of when behaviour will be sufficiently pervasive to constitute harassment, but circumstances such as severity, frequency, its effect on job performance and whether it is threatening or humiliating or merely offensive will be taken into account.69 In terms of whether the harassment is wanted, the test is both subjective and objective: conduct must be offensive to the victim, and a reasonable person must also find it offensive. For example, in Venters v City of Delphi70 the manager tried to convert Venters; he threatened that if she was not saved he would need to replace her, but let her know that if she came to his church she would have a chance to be saved. Later the threat of dismissal for not attending church was made explicit. The manager also criticised Venters’ lifestyle, and made it clear that he thought her immoral. The Court held this could be harassment as his remarks were clearly intrusive and offensive, they touched on intimate matters of personal life and were unrelenting. Clearly, in the context of religious harassment, a number of rights can conflict, such as a right to religious freedom, which may include a right to proselytise, and rights to be free from harassment at work. For example, a religious employee could attempt to convert a non-religious colleague, but may offend him in the process. Despite the fact that religious freedom may involve a right to proselytise, this does not extend to improper proselytism. Courts have suggested that where attempts to convert colleagues are unwelcome and continue after it is clear they are unwelcome, such behaviour can amount to harassment. For example, in Brown Transport Corp v Commonwealth71 a Jewish employee objected to Bible verses appearing on pay slips, and religious articles appearing in a company newsletter. The employee complained, and was later sacked. He successfully claimed that he was subject to religious harassment.72 However, it has also been suggested in other cases that occasional prayers and references to religious belief would not be sufficient to amount to harassment.73 Religious harassment can also occur where speech that is not religious in nature offends others because of their religious beliefs. For example, sexually explicit comments could offend a religious person.74 Additionally, harassment can occur where speech is motivated by religion but offends others on non-religious grounds, for

69 See

Harris v Forklift Systems 114 S Ct 367 (1993). Venters v City of Delphi 123 F 3d 956 (1997). 71 Brown Transport Corp v Commonwealth 133 Pa Comm 545, A 2d 555 (1990). The case was brought under the Pennsylvania Human Relations Act, rather than Title VII. 72 See also Chalmers v Tulon Co of Richmond 101 F 3d 1012 (4th Cir 1996), where Chalmers sent letters to colleagues saying that they had done immoral things and needed to repent: the employers did not need to accommodate this behaviour as it would involve harassment of other staff; and Wilson v US West Communications 58 F 3d 1337 (1995), where colleagues brought claims of harassment when Wilson wore a badge to work with a picture on it of an aborted foetus. The presence of harassment claims by other staff meant that Wilson’s behaviour did not have to be accommodated. 73 Brown v Polk County 61 F 3d 650 (8th Cir 1995). 74 Finnemore v Bangor Hydro-Electric Co 645 A 2d 15, where a colleague continued to make sexually explicit remarks with the plaintiff ’s wife as the target, even though he had objected on religious grounds to the comments. 70

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example, discussion of abortion.75 The fact that religious rights may compete with rights to freedom of speech in such situations has led to a debate in the USA over the scope of religious freedom and freedom of speech in cases of harassment.76 There is little consensus, but it seems clear that matters of religious freedom and freedom of speech do need to be taken into account in assessing whether there is actionable harassment in religious cases. It would seem that where speech is hostile and knowingly directed at a victim, harassment will be made out. Where speech is not directed at a victim, it is less likely to be actionable. The requirement that harassment must be severe and pervasive to amount to discrimination seems to set a fairly high threshold for the level of offence to be caused before harassment is shown.77 For example, behaviour such as disparaging verbal remarks, graffiti and the placing of proselytising material in a workmate’s locker have been found to be highly inappropriate and offensive but insufficient to amount, even collectively, to ‘threatening or humiliating’ conduct sufficient to found a harassment claim, even though the series of incidents also included an attempt by co-workers to reverse over the plaintiff with a fork-lift truck.78 It is arguable that the ‘severe and pervasive’ requirement means that the focus of enquiry in US cases on harassment is on the actions of the harasser, rather than on the impact on the employee.79 It would seem that the protection against harassment available in the USA is more limited than that available under the rules that have been introduced in Europe under the Employment Equality Directive.80 Although also framed in terms of the creation of a hostile environment, the Directive also covers the violation of dignity, which may make it somewhat easier to claim harassment, particularly where there is no intention to harass, or where harassment is based on the causing of offence. However, the more restrictive approach of the US courts may be appropriate in the context of religious harassment. The interaction of rights to freedom of speech

75

Wilson v US West Communications 58 F 3d 1337 (1995). E Volokh, ‘Freedom of Speech and Workplace Harassment’ (1992) 39 UCLA LR 1791; K R Browne ‘Title VII as Censorship: Hostile Environment Harassment and the First Amendment’ (1991) 52 Ohio St LJ 481; S Sangree, ‘Title VII Prohibitions Against Hostile Environment Sexual Harassment and the First Amendment: No Collision in Sight’ (1995) 47 Rutgers LR 461; J M Balkin, ‘Free Speech and Hostile Environments’ (1999) 99 Columbia LR 2295; D Epstein, ‘Can a “Dumb Ass Woman” Achieve Equality in the Workplace? Running the Gauntlet of Hostile Work Environment Harassing Speech’ (1996) 84 Georgetown LJ 339. 77 See also cases cited in J G Grisham, ‘Religion at Work’ (2006) 42 Tenn BJ 4, such as Lundy v GMC, where symbols displayed at work that the plaintiff found sacrilegious were not sufficiently pervasive or severe to amount to harassment, even though aimed directly at the ‘victim’. See also S D Jamar, ‘Accommodating Religion at Work: A Principled Approach to Title VII and Religious Freedom’ (1996) 40 New York Law Sch LR 719, who suggests that offensive jokes and teasing are not sufficient to amount to harassment. 78 Bourini v Bridgestone Firestone North American Tire LLC 136 Fed Appx 747 (2005). Cited in J G Grisham, ‘Religion at Work’ (2006) 42 Tenn BJ 4. 79 C Williams, ‘Peterson v Hewlett Packard: Exposing Title VII Inconsistencies in its Protection of Employees from Workplace Harassment’ (2005) 83 NCL Rev 776. 80 Art 2(3) Directive 2000/78. 76

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and rights to religious freedom for religious and non-religious staff means that religious harassment cases are particularly complex, with the potential for conflict between the rights of religious staff to religious freedom and the rights of other staff to freedom of speech and freedom from religion, as well as rights to equality. It may be that restricting the reach of religious harassment claims is necessary in order to safeguard the interests of others members of staff.81

Conclusion Although the protection of harassment in the USA may be somewhat more restrictive than that in Europe, in other respects the protection for religious interests appears fairly extensive, comprising non-discrimination principles and a duty of accommodation. Certainly the first hurdle for gaining legal protection against discrimination is set reasonably low. In terms of how to determine the existence of a religion, tests are fairly subjective: if the set of beliefs holds a place equivalent to mainstream religion in the life of the employee then courts will accept that it is eligible for protection. However, the later hurdles are set much higher, with the result that the protection is more elusive than at first appears. The broad duty to accommodate is coupled with a low level of hardship needed to override the duty. However, this is not necessarily a shortcoming. In effect, the duty of accommodation merely requires employers to have real reasons for restricting religious freedom. But where the protection of religious freedom interferes with the rights of others, those other rights tend to prevail.82 This reflects the fact that accommodation is not ‘free’ but imposes a price on the accommodator. The provision of a duty to accommodate where to do so does no harm to others does at least give recognition that there is a place for religious interests at work, but the level of protection afforded is limited. The scope of exceptions to the protection available to employees in religious ethos organisations occupies a state of uncertainty in the USA. Until the Hobby Lobby case, there was little scope in the US for the argument that religious ethos employers should be treated differently from other employers, unless the employer was a religious organisation engaged in non-profit making activities for the organisation. This meant that the special protection available in the UK to religious ethos 81 See discussion of the British law on religious harassment above at pp 188–191 and L Vickers, ‘Is All Harassment Equal? The Case of Religious Harassment’ (2006) 65(3) CLJ 579, for the argument that religious harassment may warrant a different level of protection than other forms of harassment. 82 See J A Sonne, ‘The Perils of Universal Accommodation: The Workplace Religious Freedom Act of 2003 and the Affirmative Action of 147,096,000 Souls’ (2004) 79 Notre Dame LR 1023, 1079: ‘[T]he status quo mixture of nondiscrimination and “de minimis” accommodation (with anything beyond that being entirely voluntary) … best suits the relevant balance between individual religious rights and the common good … Employees are protected from irrational decisions based on matters arguably beyond their control, employers are afforded discretion appropriate to the operation of a free and fair market, the rights of co-workers are safeguarded, and the interests of church and state are addressed in a spirit of neutrality and equal treatment.’

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employers,83 and which extends to secular businesses run along religious lines, was not available in the USA. However, more recently, the case law has developed to provide greater scope for religious organisations to discriminate on grounds of religion. After Hobby Lobby, it remains to be seen whether or not the extension of religious rights to for-profit organisations develops to provide an exemption with regard to Title VII protection. Moreover, the interpretation of the ministerial exception in Hosanna-Tabor has been expansive. The case allows religious organisations fairly free rein to determine who is a minister and who is not, such that staff engaged in work that is largely secular, and for which a non-religious substitute is acceptable, may find themselves entirely outside of the legal protection against discrimination, not only on religious grounds but more broadly. This can be contrasted with the position in the UK and in the rest of Europe, where religious ethos organisations are provided with exceptions to religious discrimination provisions only where religious requirements are determining requirements of the job; and they are not exempted from the prohibition on discrimination on other grounds, unless this is necessary to comply with religious doctrine in the case of the employment of clergy or their equivalent. To an extent, the US framework for protection of religious interests at work meets many of the demands of the model for protection of religious interests set out in Chapter 3 above, in particular because of the existence of the duty to accommodate. However, it is arguable that in two respects employees have less protection than was recommended in the proposed model. First, with regard to secular employers, the low level of hardship that has been accepted in the case law to override the duty to accommodate leaves employees with a low level of protection. Secondly, with regard to employees of religious ethos organisations, the broad interpretation of the ministerial exception, and the potential strength of the religious interests of religious ethos corporations, mean that the protection for such staff can be limited. In contrast, in the UK framework, both the question of the extent to which religion should be accommodated and the question of whether religious requirements can be imposed on staff are governed by the concept of proportionality. This approach provides greater scope for appropriate protection to be given to religious interests within the work sphere, as it allows for the necessity of restrictions on religious freedom to be assessed in a more detailed and nuanced way, fully taking into account the context and all the circumstances.

II. Canada Legal protection against discrimination in Canada is provided within a federal legal system. It is contained in equality provisions set out in the legislation of 83 Equality Act 2010, Sch 9. Such protection is also available across the EU where it is based on Directive 2000/78.

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the relevant province, with all provinces, municipal and federal governments also being subject to the Canadian Charter of Rights and Freedoms, and to the Canadian Human Rights Act,84 which contain general non-discrimination guarantees. This means that the discrimination decisions of provincial courts are subject to eventual appeal to the Supreme Court of Canada. Although this creates a number of different religious equality provisions, most follow the same basic model, having non-discrimination as the general principle, but providing some form of occupational exception.85 The wording of the various provisions differs, but it is arguable that this makes little difference to the outcome of cases.86 For example, most commonly, non- discrimination provisions contain an occupational exception where there is a bona fide occupational requirement.87 Some codes additionally impose a duty on the employer to accommodate religious difference.88 In those provinces that do not have this additional duty, however, the duty is imported through the question of whether the occupational requirement is bona fide: if no reasonable accommodation has been made then an occupational requirement will not be bona fide, and so will not provide an exception to the non-discrimination rule. Similarly, where a general ‘reasonable and justifiable’ defence is used, the question of whether there was an attempt to accommodate can be relevant to the question of justification.89

Determining a Person’s Religion Canadian courts have taken a fairly subjective approach when determining a person’s religion, allowing self-determination to individuals and groups in terms of their religious identity.90 Where the employee has a religious view that does not fit in with the official teaching of the religion he espouses, it is the employee’s

84 RSC 1985, c H-6. The Canadian Human Rights Act has less impact as it only applies to the few federally regulated industries, such as banking, shipping, federal public service, post office, etc. 85 This chapter will not consider any individual province’s code but will look more generally at the approach of Canadian courts to cases of religious discrimination. More detail, particularly on the separate provincial laws, can be found in W Tarnopolsky and W Pentney, Discrimination and the Law (Toronto, Carswell, 2005). 86 See A Esau, ‘“Islands of Exclusivity”: Religious Organizations and Employment Discrimination’ (1993) 33 Univ British Columbia LR 719, for an overview of the provisions of the different provincial codes. 87 eg, Alberta’s Humans Rights, Citizenship and Multiculturalism Act, RSA 2000, c H-14 7: ‘(1) No employer shall (a) refuse to employ or refuse to continue to employ any person, or (b) discriminate against any person with regard to employment or any term or condition of employment, because of the race, religious beliefs, colour, gender, physical disability, mental disability, marital status, age, ancestry, place of origin, family status or source of income of that person or of any other person … (3) Subsection (1) does not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.’ 88 See Manitoba Human Rights Code, s 9, which contains a duty of reasonable accommodation. 89 See, eg, s 11 of the Alberta Act: ‘A contravention of this Act shall be deemed not to have occurred if the person who is alleged to have contravened the Act shows that the alleged contravention was reasonable and justifiable in the circumstances.’ 90 Syndicat Northcrest v Amselem [2004] 2 SCR 551.

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sincerely held personal religious views that have counted, rather than the views of the faith to which he officially belongs. Thus, in Re Funk and Manitoba Labour Board,91 where a Mennonite employee sought exemption from the employer’s closed shop union agreement, the Labour Board was criticised for considering the fact that the Mennonite church itself did not teach that it was unacceptable to join a trade union. The employee’s Mennonite faith gave rise to his personal religious objection to joining the union, and this was sufficient, regardless of whether he shared this view with other members of the same faith. Similarly, in Hutterian Brethren of Wilson Colony v Alberta,92 the Court of Appeal of Alberta accepted as genuine the belief of the particular Hutterite community that they could not have their photographs taken for drivers’ licences, even though others of the same faith did allow photographs in the circumstances.93 However, although courts will not question the sincerity of an individual’s belief, they do draw a distinction similar to that drawn under the ECHR between religiously motivated behaviour and religiously required behaviour.94 For example, in Spellman v The University of Windsor,95 a Hindu member of staff ’s refusal to strike for an increase in pay was not motivated by a proscription in Hinduism on striking but by a more personal conviction regarding anti-materialism. Here the failure to accommodate his behaviour was not religiously discriminatory, as his behaviour was not religiously motivated.96

Bona Fide Occupational Requirements and the Duty to Accommodate Discrimination on grounds of religion is unlawful. An exception exists where there is a bona fide occupational requirement to be of the particular religion. In some provinces there is an explicit requirement on employers to accommodate the religious employee up to the point of undue hardship. Other provinces do not have an explicit requirement, but the overall protection is very similar: as the Supreme Court case law discussed below has made clear, there is an overarching duty to accommodate up to the point of undue hardship, and so the duty can be understood to form part of the non-discrimination duty.

91

Re Funk and Manitoba Labour Board (1976) 66 DLR (3d). Hutterian Brethren of Wilson Colony v Alberta (2007) ABCA 160. 93 Ibid 118. Note the case was overturned on appeal to the Supreme Court (Alberta v Hutterian Brethren of Wilson Colony [2009] 2 SCR 567), but the genuineness of the belief was accepted. 94 Arrowsmith v UK (1978) 3 EHRR 218. 95 Spellman v The University of Windsor [1979] Ontario Labour Relations Board Reports 458. 96 Of course, the approach of the court in the case of Re Funk means that it should have been possible for Spellman to argue that although Hinduism itself may not prohibit striking, his understanding of the Hindu faith did require such a stance. In such a case, it would seem that the subjective view of religious belief expounded in Re Funk should prevail, and that an employee with a (personal) religiously motivated conscientious objection should be able to claim that the objection is religious in nature. 92

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In effect, a defence to a discrimination claim is available where an employer imposes a prima facie discriminatory rule or standard for a purpose rationally connected to the purpose of the job, in good faith, in the belief that it was necessary to a legitimate work-based purpose, and that the rule or standard is reasonably necessary to accomplish the work-based purpose. In order to show that the rule or standard is necessary, it must be shown that the employer cannot accommodate the employee without undue hardship.97 As a result of this legal structure, matters such as dress codes, working time and days off, which are dealt with as matters of indirect discrimination in the UK, have been dealt with in Canada using the rules concerning bona fide occupational requirements and the duty to accommodate.

The Duty to Accommodate and Undue Hardship Early Canadian cases took a similar approach to those in the USA, with the view that requiring an employer to bear anything more than a de minimis cost was ‘undue hardship’ (and therefore not required of an employer).98 However, the law has developed, so that employers are required to go further to accommodate religious practice,99 while still acknowledging that it can be acceptable for the employee to bear some of the costs of that religious practice. Factors that can be taken into account in assessing whether there is undue hardship include financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of workforce and facilities, size of employer and the ease with which the workforce can be adapted.100 Although the list of factors that can justify failure to accommodate is extensive, the Canadian duty to accommodate is stronger than that in the USA. After Meiorin,101 the accommodation will be required unless it is impossible to effect it without undue hardship. Although case law shows that a higher level of accommodation is required in the Canadian courts, it should be noted that the Meiorin test is not that if an accommodation is possible it must be offered; the test remains subject to undue hardship. Only if it is possible to accommodate without undue hardship will accommodation be required. If it is possible to accommodate, but to do so imposes undue hardship, the accommodation will not be required. Although the duty of accommodation does not require all religious requests to be granted, failing to consider options for accommodation may result in a discrimination finding. Once a potential accommodation has been identified by 97 British Columbia (Public Service Employee Relations Comm) v BCGEU [1999] 3 SCR 3 (‘Meiorin’) and confirmed in British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights) [1999] 3 SCR 868 (‘Gismer’). In some provinces, the exception only applies to religious organisations operating in a not-for-profit environment. 98 Froese v Pine Creek School Division No 30, M Rothstein QC, 28 December 1978 (Man Bd Adjud) (unreported). 99 Central Okanagan School District No 23 v Renaud [1992] 2 SCR 970, a case involving dismissal for refusing to work days designated as holy by the employee’s religion. 100 Central Alberta Dairy Pool v Alberta (Human Rights Commission) [1990] 2 SCR 489. 101 British Columbia (Public Service Employee Relations Comm) v BCGEU [1999] 3 SCR 3.

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an employee, the employer effectively comes under an obligation to consider an accommodation. In Qureshi v G4S Security Services,102 the employer rejected the applicant once it learnt of his need for time off to pray for an hour every Friday. The Human Rights Tribunal of Ontario held this was discriminatory. It confirmed that the duty to accommodate has both a substantive and a procedural component, and that there was a duty on the employer to take adequate steps to assess and explore accommodation options once it was aware of the potential need for accommodation: there was no need to wait for a request from the employee. Failure to meet the procedural requirement to consider accommodation could be sufficient to establish discrimination, although on the facts the tribunal also found that there was no undue hardship: the claims about hardship were vague and speculative, and no clear evidence had been provided. Working Time In relation to requests for time off for religious observance (commonly, requests not to work on Friday evenings or Saturdays) the employee has to show that her religion requires compliance, which is only possible with time off work, rather than that the desire for time off is inspired by a religious view.103 Once a requirement is established, there is a duty to accommodate the practice. In Chambly (Commission Scolaire Regionale) v Bergevin,104 the school’s requirement that Jewish staff should use unpaid leave to celebrate Yom Kipppur amounted to a failure to accommodate. The court pointed out that the effect of the calendar, which recognises Christian holidays but not others, involves religious discrimination, and so a duty to accommodate arises. However, the duty to accommodate is mutual, and employees may need to accommodate employers as well. This point was made in Renaud,105 which involved dismissal for refusing to work on days that were viewed by the employee as religious. The court referred to the fact that accommodation is a multi-party exercise: on the employer’s part this may require flexibility. For example, the fact that the employer operates a standardised leave policy will not be sufficient to provide a defence in a discrimination case. Moreover, the court also commented that although considerations as to the effect on employee morale may be relevant, such considerations should be applied with caution. The fact that an accommodation may be unpopular with others in the workplace is not sufficient of itself to amount to undue hardship. The court pointed out that to decide otherwise would enable an employer to contract out of its human rights obligations as long as other employees are ‘ad idem’ with the employer on the issue. The courts recognise that equality is not achieved in the context of working time by treating all groups the same, especially in a context where most work calendars are supportive of Christian religious observance. In this respect the Canadian 102

Qureshi v G4S Security Services 2009 HRTO 409 (CanLII). Again, a distinction is drawn between religiously motivated behaviour and religiously mandated behaviour. Cf Arrowsmith v UK (1978) 3 EHRR 218. 104 Chambly (Commission Scolaire Regionale) v Bergevin [1994] 2 SCR 525. 105 Central Okanagan School District No 23 v Renaud above n 99. 103

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approach can be contrasted with that in the USA, with its de minimis standard of hardship, which minimises what is required under the duty of accommodation. In the US cases, failure to accommodate could be justified by the undue hardship caused by overturning established means of allocating shifts. Although the Canadian approach requires much more in terms of accommodation than the US approach, the duty to accommodate does have clear limits. In O’Malley,106 the non-discrimination principle did not require that religious adherence be cost-free for the employee. The case involved a long-serving employee who had become a Seventh Day Adventist, and who was therefore no longer able to work from sunset on Friday until sunset on Saturday, and had to move to parttime status. The Supreme Court took the view that the employer had not shown that it had taken reasonable steps to accommodate O’Malley’s religious practices: The duty in a case of adverse effect discrimination on the basis of religion or creed is to take reasonable steps to accommodate the complainant, short of undue hardship: in other words, to take such steps as may be reasonable to accommodate without undue interference in the operation of the employer’s business and without undue expense to the employer.107

In this case, there was no evidence of any attempt by the employer to accommodate save by offering part-time hours. At the same time the Court pointed out that where the employer has made sufficient efforts to accommodate an employee, it is not unreasonable for some cost to be put on the employee, who may be faced with the option of choosing employment or full religious observance. Work Tasks A number of specific exceptions allow staff to refuse to undertake certain work tasks. For example, professional bodies, such as physicians, make explicit allowance for their members to conscientiously object to performing abortions,108 and section 3 of the Civil Marriage Act recognises that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs. However, as in the UK, religious individuals employed as civil marriage commissioners are not given exemption from performing samesex marriages.109 In more general terms, the question of whether a religious employee can be exempt from performing particular work tasks will be dealt with as a matter of accommodation. The question of whether an employer must accommodate an employee’s refusal to undertake certain tasks, on religious grounds, arose in Moore v British Columbia (Ministry of Social Services).110 The case involved the 106

Ontario Human Rights Commission and O’Malley v Simpsons-Sear [1985] 2 SCR 536. Ibid para 23. eg, College of Physicians and Surgeons of Ontario, Professional Obligations and Human Rights, available at . The obligation to refer patients to other staff who will provide the service has been challenged on religious freedom grounds: see . 109 In the matter of Marriage Commissions [2011] SKCA 3. 110 Moore v British Columbia (Ministry of Social Services) (1992) 17 CHRR D/426. 107

108 See,

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dismissal of Moore, a financial aid worker, for refusing to grant a client financial aid for an abortion because of her religious objections to abortion. The Human Rights Council decided that as the employer had taken no steps to accommodate her religious views, Moore had suffered religious discrimination. For example, requests of the type refused by Moore were relatively infrequent, and other workers could have been asked to deal with them. What is interesting about the case is that although it was suggested that Moore should have removed herself from the client’s case (rather than taking it on and then refusing assistance), it did not place much responsibility on the employee to avoid the problem of clashes between religious scruple and compliance with the employer’s reasonable job requirements.111 The issue was not discussed, because it was clear that no attempt to accommodate had been made. However, it may well be that in some cases the onus will pass to the employee not to undertake work that he or she is unable to perform in full on religious grounds. Dress Codes As a general rule, the duty to accommodate should extend to dress codes, unless there is a clear job-related purpose for a restriction on religious dress. In Bhinder v Canadian National Railway,112 a Sikh maintenance technician who wore a turban refused to wear a hard hat at work. The employer’s requirement that he should wear a hard hat was found to be a bona fide requirement, and there was no need for his religious dress code to be accommodated. Since Bhinder, the requirement for motorcyclists to wear a helmet has been modified in some provinces113 to accommodate Sikhs, based in part on the fact that the cost involved (that is, the greater likelihood of severe injury in the event of a crash) is largely borne by the person accommodated.114 Although the case did not arise in the employment context, it suggests a greater willingness on the part of courts to require accommodation of dress codes. However, this obligation still only arises where there is no undue hardship. Where a no-beard rule had a legitimate health and safety explanation, involving the health and safety of others, the failure to adapt the rule to accommodate a Sikh employee was not discriminatory, as health and safety concerns prevail over religious interests.115 Even so, health and safety concerns can be context specific: in cases involving Sikhs wishing to wear the kirpan,116 the court has taken a varied and fact-sensitive approach to the issue. In two cases involving the wearing of the kirpan in court117 111 See W Tarnopolsky and W Pentney, Discrimination and the Law (Toronto, Carswell, 2005) para 6.2(d). 112 Bhinder v Canadian National Railway [1985] 2 SCR 561. 113 Sikhs are exempt from rules requiring helmets in Manitoba, but required to wear helmets in Ontario. 114 Dhillon v British Columbia (Ministry of Transportation and Highways) (1999) 35 CHRR D/293. 115 Pannu v Skeena Cellulose Inc (2000) 38 CHRR D/494. The employee was responsible for shutting down a kiln in the event of a gas leak, and this job required him to wear a close-fitting mask, for which he needed to be clean-shaven. It was agreed that exempting Pannu from the ‘no beards’ rule would put other workers at risk. 116 A ceremonial knife worn by Sikhs. 117 R v Hothi [1985] 3 WWR 256 (Man QB), aff ’d [1986] 3 WWR 671 (Man CA).

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and as an airline pilot,118 the view of the court was that accommodation was not required because of safety concerns. However, in Multani v Commission scolaire Marguerite-Bourgeoys,119 a case that involved a school child who wished to wear the kirpan, the Supreme Court upheld the boy’s right to wear it. The Court reasoned by analogy with the duty of accommodation, and found that the request could be accommodated without undue hardship where the boy wore the kirpan sewn inside his clothing so that it could not be readily used. Factors relevant to that decision were that there are many objects in schools that could be used to commit violent acts, and which are much more easily obtained by students, such as scissors, pencils and baseball bats; and that evidence also revealed that no violent incidents had been reported relating to the presence of kirpans in schools. The case demonstrates the careful, context specific balancing that is required in determining whether a religious accommodation can be refused. Where uniform requirements are imposed, they will not be reasonable if they are enforced inconsistently. In Loomba v Home Depot Canada,120 a Sikh could not wear a hard hat at a construction site because of his turban. Even though hard hats were required for health and safety reasons on the site, the employer had selectively enforced the rule against the complainant and so the refusal to accommodate the employee was not reasonable. Moreover, the employee is not free to require a particular accommodation of choice in terms of dress code. In Audmax Inc v Ontario Human Rights Tribunal,121 the applicant’s claim for accommodation was rejected in part because, although not prepared to allow the particular head-covering requested by the employee, the employer was prepared to allow her to wear another type of head-covering. The court found that it was possible for the applicant to wear a religiously acceptable form of headscarf, consistent with the dress code, and in fact she had worn such a headscarf for six weeks previously: in this case the court held that the employer’s dress code did accommodate her religion, thus ‘her religious rights were not affected. All that was affected was her sense of style, which apparently was in conflict with that of her employer.’122

Religion: A Bona Fide Occupational Requirement? In order for an employer to show that being of a particular religion or belief is a bona fide occupational requirement, the employer will need to show that there is a legitimate reason for imposing a religious requirement on the job, in terms of the effect of religion on the ability of a person to perform the job. The employer

118

Nijjar v Canada 3000 Airlines Ltd (1999), 36 CHRRD/76 (Can Trib). Multani v Commission scolaire Marguerite-Bourgeoys [2006] 1 SCR 256. Loomba v Home Depot Canada Inc [2010] OHRTD No 1422 (QL) (Ont HR Trib). 121 Audmax Inc v Ontario Human Rights Tribunal 2011 ONSC 315. 122 Ibid para 86. 119 120

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must then demonstrate that the religious requirement was imposed honestly and in good faith in the belief that it was necessary, and that it would impose undue hardship on the employer to be forced to employ those not meeting the religious requirement. Where the employer has no link to a religious group it will be very difficult to meet this standard, except in fairly distinct and restricted circumstances where the job is clearly of a religious nature, such as a role as a religious chaplain in a secular hospital. Where the employer is religious in ethos, either because the employer is a religious organisation, or because it is owned and run by a religious individual, different considerations apply.

Religious Employers In addition to the general bona fide occupational requirement exception, some provinces have additional exceptions that apply to religious employers, but practice differs across provinces. For example, Ontario provides an exception to the non-discrimination principle for religious bodies, as well as philanthropic, educational, fraternal or social institutions, where there is a bona fide occupational qualification because of the nature of the job.123 British Columbia, Nova Scotia, Newfoundland and Prince Edward Island all contain similar exceptions, but they are limited to the non-profit making activities of religious groups.124 The varied levels of protection available in different provinces for religious organisations illustrates that there is no uniform Canadian approach to the question of whether a religious group can impose religious requirements on staff. However, it is of significance that where provinces do allow religious bodies to impose religious requirements on staff, they have not been struck down by the Supreme Court as incompatible with the Canadian Charter, regardless of whether they are limited to non-profit activity. This suggests that it is accepted under the Charter that exceptions of either type can be compatible with human rights norms. Courts have upheld the use of religious requirements for jobs where religion is a defining aspect of the job. They have also upheld the imposition of requirements on ‘non-defining’ support jobs such as administrators and ancillary staff. For example, in Schroen v Steinbach Bible College,125 which involved the dismissal of an accounts clerk in a Mennonite college, a religious requirement was upheld for a non-religious post. Schroen had applied for the job knowing that the requirement was for a Mennonite, and had not disclosed that although she was brought up as a Mennonite (and could relate to the students and their religious beliefs), she had become a Mormon. Not only did she not disclose her new faith, she even affirmed the College statement of faith when applying for the job. Even though Mrs Schroen was not teaching students at the college, her job involved interacting

123

eg, Ontario Human Rights Code 1990, s 24(1)(a). Scotia Human Rights Act 1989, s 6(c)(iii) and s 6d; Newfoundland Human Rights Act 2010, s 14(8); and Prince Edward Island Human Rights Act 2013, s 6(4)(c). 125 Schroen v Steinbach Bible College (1999) 35 CHRR D/14(Man. Bd. Adj.). 124 Nova

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with them, making herself available to talk with them about her faith, participating in college functions, etc. Given the particular religious nature of the Bible college, the court decided that it was reasonable for all staff, teaching and support staff, to share the same faith.

Religious Requirements that Discriminate on Other Grounds Courts have had to consider cases where allowing religious occupational requirements can lead to discrimination on other protected grounds. In Caldwell v St Thomas Aquinas High School,126 a Catholic school did not renew the contract of a Catholic teacher, Mrs Caldwell, after she had married a divorced Methodist man in a civil ceremony. Although the school employed non-Catholics, and would not have objected to non-Catholic staff entering such a marriage, Mrs Caldwell was dismissed because she was Catholic and her actions were incompatible with Catholic teaching on divorce. She claimed that this treatment was discriminatory on grounds of religion and marital status. The school argued that she was not rehired as she lacked a bona fide qualification for the job, that of being in good standing in the church. This requirement was imposed in good faith in the belief that it was necessary for upholding the special nature of the school, where the teachers led the pupils by example. The Supreme Court of Canada held that the school was entitled to impose the faith requirement, and so could discriminate against her for her failure to comply with the requirement. The Court acknowledged that this case involved conflicting rights, but the decision contains little by way of discussion of the implications of the decision for her, and the impact of the discrimination on grounds of marital status. Similar decisions have been made in other cases involving dismissal for failure to live up to moral standards set by the religious group. For example, in Garrod v Rhema Christian School,127 a teacher in a Christian school was dismissed for having an extra-marital affair. The Board of Inquiry again acknowledged the clash of rights, but viewed the existence of a genuine occupational qualification as a ‘tie-breaker’, allowing the religious rights of the employer to require its staff to lead exemplary Christian lives to trump the rights of the employee not to be discriminated against on grounds of marital status. In this case, the employee had assented to the school’s ‘exemplary’ life requirement, and this may have influenced the decision. Despite these decisions allowing religious organisations to set standards of behaviour that discriminate against staff on other grounds, the courts are careful before finding such requirements necessary to the job. In Parks v Christian Horizons,128 a carer in a group home run by a Christian organisation was dismissed for being involved in an extra-marital relationship. The tribunal held that this was not 126

Caldwell v St Thomas Aquinas High School (1984) 2 SCR 603. Garrod v Rhema Christian School (1991) 15 CHRR D/477 128 Parks v Christian Horizons (1992) 16 CCHR D/40. 127

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j ustified. The religious requirement (not to live in a relationship outside marriage) had not been made plain to the assistant; it was not contained in the contract of employment; and the employing organisation had not acted consistently on the issue in the past. These factors suggested that the religious requirement was not so fundamental to the employer as to justify dismissal.129 Following the Parks decision, Christian Horizons created a clearer policy for staff, a Lifestyle and Morality Statement, which, among other things, identified homosexual relationships as inappropriate. In Ontario Human Rights Commission v Christian Horizons130 this was again challenged, after a carer for disabled people in one of Christian Horizons’ homes was disciplined following her failure to live according to the lifestyle statement. Christian Horizons claimed that it had a defence, as the work involved serving the interests of the religious group, and the requirement to live according to the lifestyle statement was a bona fide occupational qualification for the work. The Divisional Court found that the work of Christian Horizons was a religious activity, even though the clients were not determined by their religion. However, compliance with the lifestyle requirement was not a bona fide occupational qualification, as it was not necessary for the performance of the role of a support worker, whose duties did not involve promoting the religion but rather such matters as cooking and cleaning. In this regard, the court distinguished the Caldwell case, in which the employee was involved in teaching the religion to pupils. An additional case in which a clash arose explicitly between the right to religious freedom and the right not to be discriminated against on grounds of sexual orientation, is worth considering as an illustration of how the clash was resolved by the Supreme Court of Canada, even though it does not involve employment discrimination. In Trinity Western University v College of Teachers,131 a Christian college had a Statement of Community Standards to which all students signed up, including a commitment to refrain from ‘biblically condemned’ sins of pre-marital sexual activity, adultery and homosexual sex. The college sought accreditation for its teacher training course with the British Columbia College of Teachers, accreditation that would allow its graduates to teach in local schools. Accreditation was refused, as the British Columbia College of Teachers viewed Trinity Western University as institutionally discriminatory against homosexuals, and believed there was a real risk that teachers trained there would bring discriminatory attitudes into the classroom. The College appealed, and the Supreme Court found in its favour on the basis that there was no evidence that individual students had acted in a discriminatory manner. Signing up to a generalised statement in support of a position did not mean that the individual necessarily acted according to the statement. Without concrete evidence of a negative stance taken by individual students

129 It may also be that the care context was treated differently from the education context, although this is not explicit in the case. 130 Ontario Human Rights Commission v Christian Horizons 2010 ONSC 2105 (CanLII). 131 Trinity Western University v College of Teachers (2001) SCR 772.

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towards homosexuality, the students’ freedom of religion should be respected. If an individual student held negative views that were communicated to students, this might be treated differently, but a generalised refusal to accredit all students from the college was discriminatory on grounds of religion. If permitted, it could allow all members of denominations such as Baptists to be prevented from teaching, because of the stance of the denomination towards homosexuality. The Court pointed out that freedom of religion co-exists with freedom from discrimination on grounds of sexuality. Neither right trumps the other, and so individuals should be free to retain their views on sexuality, and even to denounce it, as long as a line was not crossed between belief and conduct. For example, it would be acceptable to restrain the denunciation of homosexuality if it amounted to hate speech. The students at Trinity Western University had not crossed this line, and should be able to enter the workplace and retain their freedom to believe as they wished.132 In contrast, in Ross v New Brunswick School District No 15,133 the dismissal of a teacher with racist anti-semitic views was justified because his vehement anti-semitism was very public, involving many public and media appearances. He had caused a poisoned work atmosphere, and had crossed the line between belief and practice. These cases indicate that the Canadian courts will contemplate upholding occupational requirements that discriminate on other grounds, as long as the requirement can be viewed as reasonably necessary to the religious ethos of the organisation.134 Caldwell135 and Garrod136 are both cases where the courts allowed religious employers to introduce requirements that discriminated on the prohibited ground of marital status. Even though in Caldwell’s case there were many other non-Catholic staff in the school, a factor that may have suggested that the requirement to be a fully observant Catholic was not necessary to the job, this did not prevent a finding that it was acceptable for the school to make that requirement of the Catholic staff. However, in both the cases the employers were able to demonstrate satisfactorily that the requirement was sufficiently important to them. In contrast, in Ontario Human Rights Commission v Christian Horizons,137 the secular nature of the tasks carried out by the staff member in question meant that the religious requirement was not essential.

132 Trinity Western University is also seeking to establish a law school. The Law Societies in some provinces have approved the university’s accreditation, while others have not. The matter is likely to be reviewed by the Supreme Court in due course. 133 Ross v New Brunswick School District No 15 (1996) 1 SCR 825. 134 Note that in Vriend v Alberta [1998] 1 SCR 493 the Supreme Court was asked to consider whether the dismissal of a gay employee from a religious school offended the equality principle in the Canadian Charter of Rights and Freedoms. The decision related to the failure of the province of Alberta to protect against discrimination on grounds of sexual orientation. The question of whether the employer could have raised a bona fide occupational requirement defence was not considered by the Court. 135 Caldwell v St Thomas Aquinas High School (1984) 2 SCR 603. 136 Garrod v Rhema Christian School (1991) 15 CHRR D/477. 137 Ontario Human Rights Commission v Christian Horizons 2010 ONSC 2105 (CanLII).

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Conclusion In terms of the amount of effort required of employers to accommodate religious practices at work, the Canadian courts put an onus on both parties to compromise. Employers are required to do more than merely show that there is some impact upon their business: they can be required to tolerate some level of inconvenience or expense. To this extent, the approach in Canada can be contrasted with that in the USA. The Canadian courts have equally recognised that it is acceptable to allow some cost on the employee’s part, thus achieving a reasonable balance between the interests of the religiously observant employee and the needs of the employer. The protection provided to religious employees at work is fairly generous in comparison to that available in Europe and the USA, as the duty of accommodation imposes a fairly robust obligation on employers to try to accommodate religious practice. In addition, the approach of the Canadian courts is also fairly generous to religious employers. The religious interests of employers appear to be given broad protection, in that discrimination on other grounds can be allowed in order to enable the religious needs of the employer to be met.138 Moreover, the Canadian courts seem prepared to take an ‘organic’ view of the workplace,139 allowing for the fact that groups of workers may view the workplace as a form of church where they worship together through the performance of their jobs, and so allowing bona fide occupational requirements to apply even where religion is not integral to the job function.140 In the religious sphere, groups can operate in an exclusive manner, without offending against the human rights norms upheld by the Supreme Court.141 It is interesting to note that different levels of protection for religious employers are available in different provinces, with some limiting protection to non-profit activities of religious organisations. The fact that some protect only non-profit organisations, and others a broader range of religious employers, is striking, particularly as it was suggested in Chapter 3 that the question of the extent to which religious discrimination by religious bodies should be tolerated should be determined to some extent by this criterion. In the discussion of proportionality in Chapter 3 it was suggested that where groups wish to engage economically with the rest of society, it would be acceptable to require them to respect the dignity and equality interests of others. Where they had retreated from mainstream society, and were not engaging economically with the rest of society, then allowing discrimination against others might be acceptable in order to uphold the religious freedom of the group. This approach suggests that the question of whether or not

138

Caldwell v St Thomas Aquinas High School (1984) 2 SCR 603. Esau, ‘“Islands of Exclusivity”: Religious Organizations and Employment Discrimination’ (1993) 33 Univ British Columbia LR 719. See discussion in Ch 3 above. 140 Schroen v Steinbach Bible College (1999) 35 CHRR D/14(Man. Bd. Adj.). 141 A Esau, ‘“Islands of Exclusivity”: Religious Organizations and Employment Discrimination’ (1993) 33 Univ British Columbia LR 719. 139 A

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a religious group is engaged in profit-making activity may be of significance in determining where the balance may lie between religious freedom and freedom from discrimination. Yet within the Canadian jurisprudence, provincial codes that restrict protection to non-profit activity are compatible with the Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act, and so are those that allow protection to economic activity. This suggests that according to the Canadian understanding of religious freedom, the issue of economic interaction with society is not of defining importance: both approaches can be acceptable. Special protection for religious groups to act as employers and to maintain a religious ethos among staff is compatible with human rights norms; but equally, religious freedom does not demand such protection for religious groups, and codes that restrict protection to not-for-profit activity are also compatible with the provisions of the Human Rights Act and Charter.

III. Conclusion Religious interests are provided with a fairly high level of protection in the UK and Europe, with protection against direct and indirect discrimination and harassment. Exceptions are provided for religious job requirements, which may be imposed by religious employers, although none of these exceptions is absolute. There is no general exemption of religious bodies from the Directive, even in the case of clergy appointments, and the requirements of religious ethos employers more generally are protected. Unlike the protection in North America, there is no duty to accommodate in the European model. Yet, as this overview of the position in North America suggests, any additional protection for religious interests provided by a duty to accommodate is only strong if that duty cannot be easily overridden. The ease with which the US ‘undue hardship’ standard can be met shows how weak this form of protection can be. The Canadian duty is stronger, as ‘undue hardship’ is more difficult to show. The level of protection provided therefore does not necessarily depend on the legal framework: whether there is a duty to accommodate or a duty not to discriminate indirectly, the strength of the protection will be determined by the scope of the proportionality or ‘hardship’ review. In its basic provisions, the protection provided in North America is largely similar to that provided in Europe. Both systems provide basic protection for religious workers when it comes to accommodating working-time or dress-code requests. However, differences can be seen in the provisions protecting religious employers. In Canada the protection is broader, with religious employers protected in some provinces even where they discriminate on other grounds. In the USA religious employers cannot discriminate on grounds of religion, let alone on other grounds, where they are operating in the ordinary commercial marketplace,

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although post-Hobby Lobby this may not remain the case. Currently, the UK and Europe seem to take something of a middle course: religious groups can discriminate, but only so far as they do not infringe the other equality rights. In Chapter 7, the question of whether Europe and the UK should adopt a reasonable accommodation approach to protecting religious interests at work is assessed, and we discuss how best to meet the requirements recommended in Chapter 3’s model for protection of religious interests at work.

7 Conclusion: Religious Freedom at Work The right to freedom of religion is clearly recognised as a fundamental human right in European and international law. Its protection is based on the idea that freedom of thought, conscience and belief are necessary for the upholding of human autonomy and dignity. It is viewed as one of the foundations of a ‘democratic society’, and as one of the ‘most vital elements that go to make up the identity of believers and their conception of life’.1 The purpose of this book has been to explore the practical scope of that right in the particular context of the workplace, and in the light of the provisions of the Equality Act 2010 that protect against work-based discrimination on grounds of religion or belief. It has been suggested in the preceding chapters that despite the importance of religious freedom as a fundamental human right, its protection in the work context should be limited, because of its complex and contested interaction with the rights of others, whether they be employers or those outside the religious group. Formulating a response to the inherent conflicts arising between religious interests and other interests with which religion may conflict presents significant challenges. The suggestion was made in Chapter 3 that a model for the accommodation of religious interests at work be developed, with a view to establishing some form of equilibrium between conflicting rights, based on the notion of proportionality. Thus in assessing whether the right to religious freedom should prevail over competing interests, the religious interest should be weighed against other interests such as the need to uphold equality, to protect freedom from religion, and to protect other human rights such as respect for private life and freedom of speech. The assessment of proportionality should also take into account matters such as the equality interests of service users, the freedom of religion of other members of staff, the right to freedom from religion for customers and colleagues, and an interest in religious neutrality for the employer. Where the balance lies may depend in part on the status of the employer, for example whether it has a religious ethos, whether it is part of the public or the private sector, and whether it is has a monopoly on providing particular types of employment. This proportionality-based model for the protection of religious interests at work is effectively a procedural mechanism that should enable courts and tribunals 1

Kokkinakis v Greece (1993) 17 EHRR 397, para 31.

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to reach reasoned decisions on where the balance should lie in cases involving conflicting rights. Its flexibility allows it to be responsive to the seemingly infinite range of interests at stake: the individual (or ‘micro’)2 interests of religious and secular employers and employees, customers and service users; and the more contextual (or ‘macro’) interests of the state in upholding equality and promoting social inclusion as well as religious pluralism and tolerance. The interests of all groups can be taken into account in assessing proportionality, enabling a careful and responsive standard to develop for creating equilibrium between competing and conflicting interests. A model of legal protection based on proportionality is capable of addressing not only the issues faced by religious workers, but also matters that relate to ‘religious work’, that is work that is undertaken for organisations with a religious ethos. In what follows, the position of religious ethos employers is considered, followed by a discussion of how best to protect the individual interests of religious employees.

I. Protecting Religious Work The difficulty that arises in relation to religious work relates to the fact that religious ethos organisations may wish to discriminate in their employment practices, and they may justify this on grounds of religious freedom. Their position is supported by the fact that, as discussed earlier,3 the collective aspect of the right to freedom of religion can be engaged when religious ethos organisations regulate their relationships through employment law. Where the relationship being regulated is that of an individual who officiates at religious ceremonies, it is fairly clear that the religious interests of the group are served by allowing it significant freedom of choice. To require a religious group to employ anyone other than a co-religionist in any teaching or leadership position would offend the right to religious freedom enjoyed by the group. Moreover, it is also clear that for jobs with a religious nature it may be proportionate to allow some level of religious discrimination to enable a religious employer to create a religiously homogeneous workplace.4 Things become more complex when the religious beliefs of the group mean that employing someone who shares the beliefs may involve discriminating on other grounds, such as sex or sexual orientation. In most cases, discrimination against others, motivated by religion, will not be proportionate. However, a case has been made for allowing some limited space for religious groups to discriminate, where the impact on o thers is

2 See S Choudhry, ‘Rights Adjudication in a Plurinational State: The Supreme Court of Canada, Freedom of Religion, and the Politics of Reasonable Accommodation, (2013) 50 Osgoode Hall LJ 575, discussing Multani v Commission scolaire Marguerite-Bourgeoys [2006] 1 SCR 256. 3 See p 71. 4 See discussion at p 176.

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limited.5 In effect, it has been suggested that where religious individuals wish to retreat from mainstream society, and work in a religious ethos organisation, they may be able to exclude those with different views.6 This allows for the protection of the religious freedom of individuals, who retain the freedom to regulate the provision of services within the group through the employment relationship. In effect, this will allow groups to operate in an exclusive manner, without being required to provide employment for those of other religions or lifestyles. Any exception to the general non-discrimination principle must be proportionate; and given the strength of the general principle, it is unlikely to be proportionate in many cases. However, in the context of, for example, the appointment of a church administrator, caterer or children’s work co-ordinator, it may be proportionate to allow religious discrimination by the organisation even though this results in indirect discrimination against others, because of the self-serving or inward-looking nature of the employment.7 In contrast, where the group interacts with the rest of society, such as by providing services to the public, they can be expected to conform to the norms of the rest of society in terms of respect for the dignity and autonomy of others. Whether or not a particular case of discrimination is proportionate will depend on all the factors identified in Chapter 3, but the fact that at times some level of discrimination may be proportionate illustrates the importance of considering the religious rights of the individual and the group alongside the deliberation on the scope of non-discrimination rights. The relationship between the two concepts, freedom of religion and non-discrimination, was discussed in detail in Chapter 3; both were said to be based fundamentally on the same concepts, a respect for individuals’ essential autonomy, dignity and equality. Interpreting the legal duty not to discriminate in the employment area on grounds of religion and belief, taking due account of the right of all people to freedom of religion and belief, in both its positive and negative aspects, is possible, but only if a detailed proportionality review is undertaken. Again, the concept of proportionality is the tool by which a reconciliation of conflicting interests is sought to be achieved.

II. A Duty of Reasonable Accommodation? A model for legal protection for religious employees based on proportionality is compatible with the legal approaches taken in the UK, as well as in the USA and Canada. Although the legal framework for protection differs, all three jurisdictions

5

See discussion at p 95 ff. Esau, ‘“Islands of Exclusivity”: Religious Organizations and Employment Discrimination’ (1993) 33 Univ British Columbia LR 719. 7 See S Wessels, ‘The Collision of Religious Exercise and Governmental Non-discrimination Policies’ (1989) 41 Stanford LR 1201. 6 A

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ultimately engage in an assessment of the proportionality of restrictions on religious freedom and exceptions to the right not to be discriminated against on grounds of religion. However, the North American models differ from the European model in that they impose on employers a duty to accommodate religion.8 The question therefore arises of whether the imposition on employers of an explicit duty to accommodate religion is a preferable model for protection. The Equality Act 2010 protects against direct and indirect discrimination,9 and it does not impose a specific duty on employers to make reasonable accommodation for the needs of religious employees. The concept of reasonable accommodation is one that is used in other jurisdictions to protect against religious discrimination, as well as forming part of the protection against disability discrimination in the UK.10 It has been recommended by some as a way to provide appropriate protection to religious freedom at work. For example, a duty of reasonable accommodation was suggested for the UK by the Independent Review of the Enforcement of UK Anti-Discrimination Legislation,11 and this has had some academic and judicial support.12 In addition, at European level, the EU-funded Religare project13 recommends in its final report that a legally enshrined right to reasonable accommodation of religion or belief at work would fill the gaps in existing legal protection and better meet the needs of religious employees. To this has been added an EU Parliamentary Assembly Resolution,14 inviting states to seek reasonable accommodations in order to guarantee effective equality in terms of freedom of religion. The UN Special Rapporteur on freedom of religion or belief has also supported the introduction of a duty of reasonable accommodation of religion and belief in the workplace.15

8 This is explicit in the USA and in some provinces of Canada. In other Canadian provinces, the duty of accommodation forms part of the assessment of whether there is a bona fide occupational exception to the non-discrimination principle. See discussion in Ch 6 above. 9 As well as victimisation and harassment. 10 It is termed a ‘duty to make adjustments’ in the context of disability discrimination: Equality Act 2010, s 20. 11 B Hepple, M Coussey and T Choudhury, Equality: A New Framework—The Report of the Independent Review of the Enforcement of UK Anti-Discrimination Legislation (Oxford, Hart Publishing, 2000). 12 Bull & Anor v Hall & Anor [2013] UKSC 73 [47] per Lady Hale; Lady Hale, ‘Religion and Sexual Orientation: The clash of equality rights’ Speech at the Comparative and Administrative Law Conference, Yale Law School, 7 March 2014, available at ; M Gibson, ‘The God “dilution”? Religion, discrimination and the case for reasonable accommodation’ (2013) 72 (3) CLJ 578. See also Clearing the Ground: Preliminary Report into the Freedom of Christians in the UK (London, Christians in Parliament, 2012); K Alidadi, ‘Reasonable accommodations for religion and belief: Adding value to Art 9 ECHR and the European Union’s anti-discrimination approach to employment?’ (2012) 37 (6) EL Rev 693. 13 Available at . 14 Available at . 15 Interim Report of the UN Special Rapporteur on Religion and Belief (2014), which focused on tackling religious intolerance and discrimination in the workplace, available at .

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In order to assess whether it would be beneficial to create a specific duty of reasonable accommodation for religion or belief in the workplace, the various benefits and disadvantages of such a move need to be assessed. First, as discussed in more detail in Chapter 6, a duty to accommodate religion was developed in the USA after it was recognised that protection was needed for religious practice or observance, as well as belief. The Civil Rights Act of 1964 was amended in 1972 to include a duty on the employer to accommodate the religious practices of employees. The duty allows employees to request an accommodation, which must be provided by the employer unless to do so would cause unreasonable hardship to the employer.16 Common accommodations are rescheduling work to allow for time off for religious observance, and amendments to uniform or grooming rules to allow for religious dress codes. Development of the duty of reasonable accommodation in Britain would be consistent with the concept of equality recognised by the ECtHR in Thlimmenos v Greece.17 Here it was accepted that treatment can be unequal because those in the same situation are treated differently, or because those who are different are treated the same. Failure to accommodate difference therefore amounts to unequal treatment, because it amounts to a refusal to treat different people differently. The concept of accommodation is already part of domestic disability discrimination law, with its duty on employers to make reasonable adjustments to the workplace. This recognises the fact that changes to the workplace to allow full participation by disabled people will need to be very individualised. The focus therefore needs to be on adapting workplaces to the individual needs of people with disabilities. As with the variety of experiences of disability, religious practices can vary widely, and so a personalised duty of reasonable accommodation for religious needs might well be thought an appropriate way forward to improve the protection of religious interests at work. A preliminary issue that arises when addressing the question of whether or not it would be beneficial to introduce a duty of reasonable accommodation in the UK is whether such a duty would merely replicate the protection that already exists for religion and belief in the workplace. It is arguable that the indirect discrimination provisions of the Equality Act 2010 already amount, in effect, to a duty of reasonable accommodation in practice: a failure to accommodate a request for different treatment by religious employees may constitute indirect discrimination, unless the refusal to accommodate can be justified. For example, employees

16 ‘The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.’ (42 USCA § 2000e j) 17 Thlimmenos v Greece (2001) 31 EHRR 15. Note, however, that the case law of Art 9 ECHR does not impose an explicit duty to accommodate religion at work. See discussion of Ahmad v UK (1981) 4 EHRR 126, S tedman v UK (1997) 23 EHRR CD168 and Eweida v UK [2013] EHRR 37 all discussed in Ch 4.

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whose requests that a work uniform be adapted to accommodate religious practice are refused would suffer indirect discrimination. The employer’s requirement that staff wear the uniform would put religious members of staff at a particular disadvantage, and the requirement would need to be justified as a proportionate means of achieving a legitimate aim. In the context of the Equality Act 2010, the effect is that indirect discrimination will not be justifiable where the employer has failed to make a reasonable accommodation. The assessment of whether a failure to accommodate was reasonable would be determined by considering whether it was proportionate. Such reasoning was accepted by Lady Hale in Hall v Bull, where it was suggested that the extent to which it is reasonable to expect the employer to accommodate the employee should be taken into account in the overall proportionality assessment.18 It seems, then, that the creation of a separate and explicit duty of reasonable accommodation would not materially change the level of protection available for religion or belief in the workplace. Framing such a request as one for the accommodation of a requested uniform adaptation which cannot be unreasonably refused does not add extra protection to that available using the indirect discrimination provisions. The question of how much protection the individual receives will not turn on whether the protection is framed as indirect discrimination or reasonable accommodation, but instead will be determined by what level of justification is required, and whether it differs from what is required for a refusal to be unreasonable.19 Why, then, might one argue for the creation of a duty to accommodate? Reasons relate to procedural matters such as the burden of proof; clarity and ease of use; and the symbolic and practical implications of separating the legal treatment of religious equality from other equality grounds. First, in relation to discrimination, although the burden of proof is favourable to individuals claiming that they have been discriminated against, the onus remains on the claimant to show that a requirement has been imposed that puts him or her at a disadvantage. The burden then shifts to the employer to justify the requirement. In contrast, with a duty of reasonable accommodation, the employee merely has to ask for an accommodation and the employer will then need to show that any accommodation would be unreasonable. There is no need to identify others who are also disadvantaged; in fact there is no need to find comparators at all. The creation of an individualised duty of reasonable accommodation suggests that each case can be assessed on its own merits, with a personalised assessment,20 without the need for generalised group disadvantage. Thus, using a 18 ‘I am more than ready to accept that the scope for reasonable accommodation is part of the proportionality assessment, at least in some cases’: Bull & Anor v Hall & Anor [2013] UKSC 73 [47]. 19 A Stein, ‘Reasonable Accommodation for Religion and Belief: Can it be Accommodated in EU Law without an Express Duty?’ in M-C Foblets et al (eds), Belief, Law and Politics: What Future a Secular Europe? (Farnham, Ashgate, 2014). 20 See K Alidadi, ‘Reasonable accommodations for religion and belief: Adding value to Art 9 ECHR and the European Union’s anti-discrimination approach to employment?’ (2012) 37 (6) EL Rev 693.

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duty of r easonable accommodation approach is not only easier from the point of view of initiating a claim, but it also avoids the difficulties discussed in Chapter 5 surrounding the question of whether there needs to be a group disadvantage and, if so, how the members of that group should be identified.21 Secondly, the duty of accommodation may be more intuitive and straightforward for employees to use.22 It is clear on its face that it creates rights for the employee with regard to religion and belief at work. In contrast, the fact that indirect discrimination may provide similar protection may well not be apparent to those not well versed in discrimination law. It is not obvious that requests for changes to working time, or requests regarding dress codes, are effectively claims not to be indirectly discriminated against because of religion and belief. Thus, the creation of a discrete ‘right to reasonable accommodation’ would make the existence of the right more visible, and therefore more accessible to employees and employers. The creation of a separate duty of reasonable accommodation may also be more accessible to workers because they find it less confrontational to frame religion or belief requests in terms of a request for accommodation rather than as a claim of indirect discrimination.23 Instead of having to allege that their employer has discriminated against them, religious employees may feel more comfortable merely requesting an accommodation. Such an approach could lead to more open dialogue about religion or belief in the workplace, as claims would feel less like allegations of wrongdoing made about the employer, and therefore more likely to lead to constructive dialogue and compromise.24 Yet although a move to a duty of reasonable accommodation may look as if it will result in greater clarity and ease of use for employees, such an outcome is not inevitable. Although a duty may seem to provide clarity, the creation of a special duty of reasonable accommodation for religion and belief at work could result in some misconceptions. Certainly, while on the face of it the duty of accommodation seems clearer, the level of hardship that would be needed before an accommodation is said not to be reasonable has not been determined, and litigation is likely to be required before any real clarity is achieved.25 Even then, if the duty of accommodation results in more individualised, case-by-case assessment of requests, then clarity for employers and employees may be elusive in practice. As Pitt points out,26 employment tribunals may struggle for consistency on when an accommodation is reasonable. Decisions are likely to vary, with no appeal allowed on 21 See discussion at pp 167–169 above. See also F Ast, ‘Reflections on the Recognition of a Right to Reasonable Accommodation in EU Law’ in M-C Foblets et al (eds), Belief, Law and Politics: What Future a Secular Europe? (Farnham, Ashgate, 2014). 22 K Alidadi, ‘Reasonable accommodations for religion and belief: Adding value to Art 9 ECHR and the European Union’s anti-discrimination approach to employment?’ (2012) 37 (6) EL Rev 693. 23 Ibid; M Gibson, ‘The God “dilution”? Religion, discrimination and the case for reasonable accommodation’ (2013) 72(3) CLJ 578. 24 See P Edge and L Vickers, Review of equality and human rights law relating to religion or belief: Research Report 97 (London, EHRC, 2015). 25 Ibid. 26 G Pitt, ‘Taking religion seriously’ (2013) 42 (4) ILJ 398.

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the factual conclusions reached by tribunals as long as they have properly directed themselves. To this lack of clarity on the level of accommodation required can be added the inherent lack of clarity regarding the meaning of the key terms ‘religion’ and ‘belief ’, another issue on which there is little consistency in the first-instance decision making.27 This means that the true scope of any proposed duty of reasonable accommodation of religion and belief is very hard to anticipate.28 Even if what is required under a duty of reasonable accommodation would eventually become clear, it is not evident that any such clarity would be unqualifiedly positive. Most of those calling for the introduction of a duty of accommodation have assumed that it would lead to increased protection for employees with a religion or belief.29 However, this is not necessarily the case, as the level of protection would depend on the level of hardship required before an accommodation would be said to be unreasonable and so not required. Moreover, even if greater protection were to result, whilst popular with some,30 many others would not support an increase in the protection of religion and belief at work.31 In particular, there is concern that by framing the protection for religious practice at work as a duty to accommodate, an onus is put on the employer to acquiesce to requests. As Pollock suggests,32 the emphasis is on reaching a compromise, even of ‘splitting the difference’, rather than on looking objectively at whether a practice puts a particular religious group at a disadvantage, and whether it can be justified as a proportionate means of achieving a legitimate aim. The arguments in favour of creating a new duty of accommodation, while backed by some in the EU, thus remain contentious. Any perceived advantages for religious individuals, such as clarity and ease of use, are, on closer examination, fairly fragile; and furthermore, any move to increase the protection for religion at work would certainly not be supported by all. Thus far, the arguments in favour and against the introduction of a duty of reasonable accommodation for religion or belief at work have focused on practical 27

See discussion in Ch 2. Although the lack of definitional clarity arises with respect to indirect discrimination too, taken with the lack of clarity over the scope of any proposed duty, it is a particular concern. 29 K Alidadi, ‘Reasonable accommodations for religion and belief: Adding value to Art 9 ECHR and the European Union’s anti-discrimination approach to employment?’ (2012) 37 (6) EL Rev 693; 30 See, eg, Clearing the Ground: Preliminary Report into the Freedom of Christians in the UK (London, Christians in Parliament, 2012); see also some of the responses cited in M Mitchell and K Beninger (with E Howard and A Donald), Religion or belief in the workplace and service delivery (Manchester, Equality and Human Rights Commission, 2015). 31 See responses in some of the workshops reported in P Edge and L Vickers, Review of equality and human rights law relating to religion or belief: Research Report 97 (London, EHRC, 2015). See also D Pollock, Personal Memorandum of Evidence to the Commission on Religion and Belief in British Public Life, available at ; and the Report of the Commission on Religion and Belief in British Public Life, Living with Difference: community, diversity and the common good (Cambridge, The Woolf Institute, 2015). 32 D Pollock, Personal Memorandum of Evidence to the Commission on Religion and Belief in British Public Life, available at 28

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issues such as the burden of proof, perceptions regarding clarity in the law, and the effect that a different framework may have on workers seeking to have a religious practice accommodated. In addition to these practical issues, there is also the question of the symbolism of the creation of a separate duty of reasonable accommodation, given that the duty does not of itself create any greater or lesser protection than that provided by indirect discrimination. The creation of a separate framework for religious interests in the workplace could be seen as granting special status to such claims, thereby privileging religion over other interests; and views will certainly differ as to whether this is a good outcome.33 However such a suggestion does presume that the special protection will be greater protection and, as has been seen above, there is nothing inherent in the creation of a duty of accommodation that requires that it should create a high level of protection. Indeed, in the USA, the duty of reasonable accommodation is tempered by the very low degree of hardship required to justify a refusal to accommodate, such that the duty of accommodation provides a low level of protection for religious practices. For example, an accommodation could be refused because it causes inconvenience to other workers. Thus if special treatment is given to religion or belief interests in the workplace, it should necessarily be assumed to be privileging religion; but if the threshold of reasonableness is set low, special treatment could just as easily lead to reduced protection. Indeed, it may be that separate protection should be introduced for religion and belief, not because it will create stronger protection but in order to signal clearly that religion and belief should be treated differently from other equality grounds. This is due to the risks to other areas of equality law of protecting all protected characteristics according to the same standards, as explained below. One of the difficulties of relying on interpretation of indirect discrimination, rather than the creation of a separate duty to accommodate religion and belief, is that it makes it more difficult to develop different standards of protection for religion than for some other equality grounds. Although the creation of different standards of protection for different strands of equality offends against the view that there should be no hierarchy as between grounds of discrimination, this view becomes less sustainable the more one considers the contested nature of many of the interests at stake.34 For example, increased costs or inconvenience would not be acceptable as justification for indirect sex discrimination, and yet in many cases where accommodation for religion is requested, employers may wish to turn down an accommodation on just such grounds. To disallow such considerations in religion cases would be to provide a very high level for the protection for religion at work. 33 See D Pollock, Personal Memorandum of Evidence to the Commission on Religion and Belief in British Public Life, available at ; and G Pitt, ‘Taking religion seriously’ (2013) 42 (4) ILJ 398. 34 See discussion of the interaction of religion and belief protection with other grounds in Ch 4 at p 148 and Ch 5 at p 177.

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The danger of using a single set of provisions for the protection of sex and race discrimination as well as religious discrimination is that, unless a hierarchy between different grounds of discrimination is accepted, any restrictions placed on the scope of religious discrimination provisions may work to ‘level down’ the protection from discrimination on other grounds.35 The concern arises because of the usual practice of applying the same standards of justification across all strands of equality law. The standard applied in sex and race discrimination is very strict: the means chosen for achieving that legitimate aim must correspond to a real need on the part of the undertaking, must be appropriate with a view to achieving the objective in question and must be necessary to that end.36 Thus employer costs or inconvenience would not be acceptable as justification for indirect sex discrimination, but might be acceptable in religion cases. If the different grounds of discrimination are meant to be interpreted similarly,37 a decision that economic cost can justify religious discrimination could result in a finding that the same were true of sex or race discrimination. The fact that cost can also justify disability discrimination does not run the same danger, because of the different framework of the protection: reasonable adjustment rather than indirect discrimination. Hence it is arguable that the creation of a separate framework to protect the religious interests of employees based on a duty of reasonable accommodation might be a preferable way to protect religious interests at work. This last reason for creating a separate duty of reasonable accommodation rests not on the need for extra protection for religious interests at work, but rather on the need for a separate framework for protection so as to allow for different levels of legal protection to be set as seems appropriate for the particular context of religion or belief, and to remove the danger of ‘cross-fertilisation’ into other areas of equality law. An alternative suggestion would be to create a right to request accommodation of religion or belief in the workplace,38 analogous to the current right to request flexible working.39 This would be a lesser right, as it would not comprise the right to be accommodated where reasonable, just the right to ask for an accommodation. This would have the added benefit that it would make clear that it is only creating separate protection, not greater protection, for religion or belief. The right to

35 M L P Loenen, ‘Accommodation of religion and sex equality in the workplace’ in K Alidadi, M-C Foblets and J Vrielink (eds), A Test of Faith? Religious Diversity and Accommodation in the European Workplace (Farnham, Ashgate, 2012); M L P Loenen, and L Vickers, ‘More is less? Multiple protection of human rights in Europe and the risks of erosion of human rights standards’ in S Morano-Foadi and L Vickers (eds), Fundamental Rights in the EU: A Matter for Two Courts (Oxford, Hart Publishing Ltd, 2015). 36 Bilka-Kaufhaus v Weber von Hartz [1986] ECR 1607, para 607. 37 Discussed further below at p 275. 38 See P Edge and L Vickers, Review of equality and human rights law relating to religion or belief: Research Report 97 (London, EHRC, 2015); Report of the Commission on Religion and Belief in British Public Life, Living with Difference: community, diversity and the common good (Cambridge, The Woolf Institute, 2015). 39 ERA 1996, s 80F as amended.

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request flexible working provides a legal right to make the request. The employer then has to consider the request in a reasonable manner. The application requires those making a request to provide an explanation of how they think flexible working might affect the business, as well as how this could be dealt with. Although this right is not especially strong40 (and, after all, making such a request was never illegal in the first place), it does encourage employers and staff to think about flexible working, and requires employers to give some consideration to requests made. The right to request flexible working applies to all staff, and can be used by those seeking a change to working hours to accommodate needs based on religion or belief. It could be extended to include a right to request other forms of accommodation, such as a request to adapt a work uniform to comply with religious rules, or a request to opt out of certain work tasks. Although such a right to request would be fairly weak, requiring only that employers consider the request in a reasonable manner, this could also be seen as an advantage. The limited nature of the right would mean that it would not be providing extensive special treatment for religion or belief, but nonetheless, the existence of the right might make it easier for employees to make requests, and could facilitate open and non-confrontational discussion between employer and employee. As with the creation of a duty of accommodation, the creation of a ‘right to request accommodation’ would still mark religion or belief as having special status. Moreover, the full scope of the protection would only be known once case law had developed testing the limits of the right. The question of how to balance competing requests for time off would need to be resolved,41 along with the broader question of how to determine when it is reasonable to refuse a request. In addition, a problem remains over the suggestion that a duty to accommodate or a right to request an accommodation will come with a presumption that religion should, as a default, be accommodated. It could create a pressure to compromise, with the concomitant concern that religions with greater demands will be granted greater accommodation. If this was to be avoided, it would be essential that any assessment of reasonableness of a refusal to grant an accommodation be undertaken with full regard for the range of factors that were considered in Chapter 3 as relevant to the question of whether it is proportionate to restrict the manifestation of religion at work. This assessment should involve both a fact-sensitive assessment of the particular situation, and consideration of the broader contextual and ‘macro’ issues discussed in Chapter 3, including the interests of those without a religion, the right to be free from religion, the meaning of equality and so on.

40 L Anderson, ‘Sound bite legislation: the Employment Act 2002 and new flexible working “rights” for parents’ (2003) 32 (1) ILJ 37. 41 ACAS guidance on how to handle matters fairly when facing multiple requests for flexible working includes considering some form of random selection if unable to distinguish between all the requests; or calling for volunteers from existing flexible workers to change their hours to create capacity. ACAS, The Right to Request Flexible Working: an Acas Guide (2014), available at .

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In conclusion, whilst some have called for the introduction of a duty of reasonable accommodation,42 recent reviews of the law in the UK have not followed their lead.43 Instead, it can be assumed that the current position will continue, whereby manifestations of religion or belief at work are protected via indirect discrimination. The benefit of such an approach is that although individual claimants may not be familiar with the terminology, courts have long experience of assessing indirect discrimination claims. Moreover, the concept of proportionality is well developed in the UK, in EU law and in the jurisprudence of the ECtHR. The concept allows for a nuanced assessment of a wide range of factors that may arise in a case, both individualised fact-sensitive matters and broader contextual factors. It would seem, then, that the law on indirect discrimination is sufficient to provide appropriate and balanced protection for religion and belief in the workplace, particularly if the notion of proportionality is assessed in the light of the factors discussed in earlier chapters.

III. Remaining Difficulties It has been suggested that protection of religious interests at work can be achieved through the appropriate interpretation of the Equality Act 2010. This provides protection against direct discrimination, as well as for the manifestation of religion and belief at work as part of the provisions on indirect discrimination. In addition, protection is provided for religious employers who wish to create religiously homogeneous workplaces. However, further underlying difficulties remain in reconciling religious and other interests at work. The continuing presence of difficulty is inherent in the subject matter, not least because of the coexistence of positive and negative aspects to religious interests. In effect, the right to freedom of religion encompasses a corresponding right to have no religion or to be free from religion. This means that an equilibrium or ‘practical concordancy’44 needs to be found between the rights of those who wish to practise their faith, and those who wish to be free from such practices. It has been suggested here that the way to deal with this inherent conflict is though the procedural mechanism of proportionality. Certainly the concept of proportionality has the potential to protect religion and belief interests adequately at work, particularly if interpreted to take into account a wide and varied range of relevant factors, as discussed in Chapter 3; and certainly a reliance on proportionality is the standard legal response to this type of difficulty. However, its use leaves

42

See p 265 above. of the Commission on Religion and Belief in British Public Life, Living with Difference: community, diversity and the common good (Cambridge, The Woolf Institute, 2015). 44 The phrase comes from German constitutional law: classroom crucifix case, BVerfGE 93, 1, 1 BvR 1087/91. 43 Report

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in place at least two remaining difficulties. First is the problem of consistency as between different strands of equality law, and as between different states relying on the same protective framework. The second is that the use of proportionality lends a false objectivity to the judgments made, and masks the fact that ultimately the decisions are based on the subjective opinion of the decision-maker. These difficulties will be considered in turn.

False Consistency? In practical terms, the benefit of an approach based on proportionality is that it allows for contextual interpretation, which can take into account all the circumstances, including, for example, the socio-political context in which the discrimination occurs. However, this leaves the problem of consistency as between different strands of discrimination or equality law. This was discussed above as one of the advantages to the creation of a separate framework for protecting religion or belief, via a duty of reasonable accommodation, or a right to request an accommodation. If such a step is not taken, the result will be either the creation of parity as between grounds of discrimination, with a corresponding levelling up of protection for religion and belief or levelling down of the protection for sex and race; or the creation of a hierarchy by which different grounds of equality are accorded different levels of protection. The latter option is the most likely; indeed, it is implicit in the proportionality model advocated in Chapter 3, where economic cost and inconvenience to co-workers was thought capable of justifying indirect religious discrimination, even though such matters would rarely justify sex discrimination. The creation of a ‘hierarchy’ of equality rights, is something that was warned against in the Commission’s ‘Explanatory Memorandum’ to the Directives.45 It has also been suggested in case law from the ECJ that a unified approach to the treatment of equality concerns is desirable.46 Moreover, hierarchies between different strands of discrimination can create particular difficulties in relation to multiple discrimination. However, although reliance on a model based on indirect discrimination and proportionality is likely to mean that hierarchies develop as between different grounds, this may in fact not be too problematic. In fact McCrudden has argued that the search for consistency and the removal of hierarchy may hinder the proper development of equality law. He argues that there is a danger in attempting to

45 Proposal for a Council Directive: Establishing a General Framework for Equal Treatment in Employment and Occupation COM (1999) 565 final, 6 46 See Case C-13/05 Chacón Navas v Eurest Colectividades SA, [2006] IRLR 706. However, see also the opinion of the Advocate General in Achbita & Anor v G4S Secure Solutions NV [2016] CJEU C-157/15, where grounds for treating religion and belief differently from other protected grounds are suggested (at [45]).

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create ‘false consistency’47 as between different grounds, as this can mask a range of differences between them. The theoretical justification for protecting against discrimination may differ, as well as the socio-political context in which the discrimination occurs. Levels of historical and current disadvantage, and levels of social exclusion experienced by the different groups, will also differ. To seek consistency and to rule out hierarchy would be to ignore these fundamental differences, and may lead to alternative disadvantages to replace those removed. A number of suggestions have been made about ways in which the grounds of discrimination are inherently different, which may justify the development of a degree of hierarchy as between them. For example, it is arguable that some grounds (gender, race, sexual orientation) are truly irrelevant to a person’s ability to undertake work, while other grounds are relevant some of the time, because they may limit either availability to do a job (pregnancy, religion) or ability to perform a job (disability, age). Thus treating different strands differently may be acceptable.48 Other differences exist between the grounds in terms of whether the characteristics are biological differences (sex, age), ascriptive differences (ethnicity), or chosen characteristics (some suggest sexual orientation and religion,49 although the question of whether these characteristics are chosen is clearly c ontentious).50 The fact that distinctions can be drawn between the different grounds does suggest that discrimination is not all equal, and that hierarchies may not only be inevitable but also acceptable. Hierarchies are also likely to be inevitable given the variety that exists in the understanding of what is meant by equality. Equality has been understood to have a variety of meanings, including the individual justice model, the group justice model, equality as recognition of individual dignity, and equality as a means of addressing disadvantage or social exclusion.51 The regulatory framework of the Directive does not reflect a single coherent approach. For example, as a framework for achieving individual justice it fails on a number of fronts, such as its lack of a mechanism to deal with intersectional or multiple discrimination. In terms of group justice, the positive discrimination provisions may be useful, but the symmetrical model of protection created may reduce its potential to act as a strong tool in achieving group justice. However, it may be that no single understanding of equality can be complete given the range of meanings it can have, and so different grounds of discrimination may fit better with different understandings of equality. For example, Fraser

47 C McCrudden, ‘Thinking about the Discrimination Directives’ (2005) 1 European AntiDiscrimination Law Review 17. 48 M Bell and L Waddingon, ‘Reflecting on inequalities in European equality law’ (2003) 28 EL Rev 349. 49 For example, D Schiek, ‘European Union: A new framework on equal treatment of persons in EC law?’ (2002) 8 European LJ 290 at 310. 50 See the discussion at pp 38–39. 51 See C Barnard and B Hepple, ‘Substantive Equality’ (2000) 59 CLJ 562, and more generally the discussion at pp 88–91.

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suggests52 that class inequality is best understood in terms of redistribution, and sexual orientation inequality best understood in terms of recognition. Religious inequality could be understood as either, as religious individuals may suffer from hostility based on the negative feelings of others about their religious identity, as well as suffering economic disadvantage based on that identity. Nonetheless, the point here is that different equality-related issues may be raised in different contexts, and so hierarchy as between grounds may be both an inevitable and an acceptable response. Assuming that it is acceptable to treat different grounds of discrimination differently, then, it is unnecessary to provide for interchangeable interpretation of similar terms used in relation to the different grounds of discrimination. For example, indirect discrimination on any ground is acceptable where it is justified as proportionate in pursuit of a legitimate aim. If consistency is not required as between grounds then an aim that is potentially justifiable for religious discrimination does not have to be similarly justifiable for sex discrimination. Thus, economic cost could justify indirect religious discrimination but not indirect sex or race discrimination. Similarly, the proportionality concept is flexible enough to take into account the different contexts in which religious discrimination may occur across Europe. The development of the interpretation of the Equality Act 2010 will to a certain extent be driven by the case law that develops in the CJEU, to which appeals under the parent Directive can be taken. Consistency in approach can be achieved by using the concept of proportionality, even though the factual outcome may not be uniform across the EU. For example, a decision to allow workers to wear a headscarf at work may be proportionate in one country but not in another, if the full national political, social and historical context is taken into account. Thus courts can consistently require employers to act proportionately, without dictating the factual outcome of cases. The model of protection based on proportionality is flexible enough to take these issues into account.

False Objectivity? It has been suggested throughout this book that the answer to the complexities involved in gauging the proper protection for religious interests is to be found in the concept of proportionality. Thus, where equilibrium is sought between a right to manifest religion at work and the rights of the employer to run the business as he or she thinks fit, the answer has been to determine whether it is proportionate to restrict religion given full examination of all the relevant factors. Or where a balance is to be found between the rights of colleagues to be free from religion

52 N Fraser, ‘From Redistribution to Recognition? Dilemmas of Justice in a “Post-Socialist” Age’ (1995) New Left Review 1/212 68.

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at work and the rights of a member of staff to proselytise, the answer has been to determine the proportionality of any restriction on religious expression, taking into account a wide range of contextual issues. In effect, the concept of proportionality is made to do all the work in determining the proper outcome. One difficulty with this approach is that it is open to the charge that it is too vague and uncertain a concept to be useful. Certainly the approach is fact-dependent, and therefore cannot lead to the development of clear and simple precedent. The answer to a simple question such as ‘Do employees have a right to refuse to work on Saturdays?’ is, in effect, the stereotypical lawyer’s answer, ‘It depends.’ Of course it depends on a huge variety of factors, and it may be that those with legal training will be able to make a good prediction as to how proportionality would be determined. However, it remains difficult for an employer or employee to determine in advance, and without legal advice, whether it is acceptable to refuse a request to miss work on a particular day, for example. An even more serious charge can be levelled at the reliance on proportionality to do the work of determining the proper parameters of legal protection for religious interests at work. This is that the test is ultimately a subjective one: in effect, ‘it depends’ becomes ‘it depends on the personal view of the individuals who make up the court hearing the case’. The fact that many and varied factors can be identified to feed in to the consideration of proportionality may only work to create a false sense of objectivity, and may mask the fact that the judgment is ultimately personal and subjective. The danger here is more serious than merely a lack of predictability, serious as that is. A false sense of objectivity runs the danger of perpetuating precisely the disadvantage that the creation of legal protection for religious interests was designed to prevent. For example, it may be proportionate, depending on the circumstances, to restrict the wearing of a headscarf at work, even though this perpetuates the social exclusion of Muslim women. In some circumstances it will be proportionate to uphold a Christian’s request not to work on Sunday, and then to reject the Muslim’s request to work reduced hours on a Friday. For example, it may be that in a particular workplace shift swaps are possible for a reduced Sunday workforce, but that a full complement of staff is required on a Friday. The fact that these decisions are so fact-sensitive, and dependent on the context in which the requests are made, can leave the law open to the charge that the decisions merely reflect the personal views and political opinions of those who judge them, even though they are dressed up in the objective language of proportionality. These are powerful arguments, and it may well be that the determination of proportionality can never be fully objective.53 The model of proportionality advocated here takes into account so many interests that it becomes difficult to 53 See D Beatty, The Ultimate Rule of Law (Oxford, OUP, 2004) for a sustained argument that proportionality can enable impartial and objective methods of judicial review to occur. However, powerful though his arguments are, they ultimately seem to rely on his own assessment that where proportionality is used, the ‘right’ answer has been found.

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determine the ‘right’ answer; outcomes will always be open to the charge that they reflect the personal agendas of those who determine them. Indeed, it may be that in the absence of anything better, a reliance on proportionality provides the ‘best’ answer, even if it cannot be proved, objectively, to be the ‘right’ answer.54 Yet it is arguable that a reliance on proportionality to do the work of setting the parameters for the protection of religious interests is more than a flawed option taken in the absence of anything better. Although not perfectly objective, it is also far from totally subjective. The range of factors suggested to be used to determine proportionality is not a random choice but the result of careful consideration of the range of competing interests at stake and the theoretical reasons for protecting the interests at all. Not every interest was said to be relevant: for example, the interest in not being subject to bare offence was said not to be suitable for inclusion.55 Thus, the proportionality model does more than just create a list of every factor that might possibly be relevant: it relies instead on reasoned and principled analysis to determine which factors are relevant. Moreover, a purely subjective test would not be open to challenge, whereas the creation of a range of interests and contextual factors to take into account in determining proportionality does allow scope for decisions to be tested. Requiring that any limits on the equality principle be subject to the test of proportionality means that the decisions must be open, and the factors that were relevant subject to review. Although ultimately courts may allow for an area of discretion in the final outcome, this does permit challenge to be made if an important factor has been left out of the proportionality equation. Thus a determination that an individual cannot take time off work for prayer must be proportionate taking into account not only the needs of the business but also the individual’s interest in religious freedom. Failure to take into account the religious interests of the employee may mean that a disproportionate decision is made. This does not mean that the employer must explicitly go through the criteria for the decision to be proportionate. Instead, the focus should be on the proportionality of the outcome. Thus a tribunal hearing a religious discrimination case will need to determine whether the employer has reached a proportionate decision, taking into account the various relevant factors, not necessarily whether the employer itself has taken the factors into account explicitly.56 Lastly, although this may seem a somewhat negative reason for advocating the proportionality approach, it may well be that to argue for more certainty, instead of relying on the elusive proportionality test, would result in inferior protection for religious interests. Certainly, more clarity would be achieved if decisions could be made in more definite terms as to which employment rights individuals should 54 See J E Fulcher, ‘Using a Contextual Methodology to Accommodate Equality Protections along with the Other Objectives of Government (with Particular Reference to the Income Tax Act): “Not the Right Answer, Stupid. The Best Answer”’ (1996) 34 Alta LR 416. 55 See discussion at pp 74–79. 56 This was the approach of the House of Lords in R (on the application of Begum (Shabina)) v Denbigh High School Governors [2006] UKHL 15.

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have, either by legislation or by guidelines established by courts when interpreting the legislation. For example, there could be a right to wear the headscarf, together with a right to a given time off for prayer, an agreed number of days off work for religious observance, and a right to conscientious objection to undertaking particular tasks which conflict with religious beliefs. Of course, such rights would have some exceptions, so that reasonable notice of the need for time off would need to be given, and health and safety exceptions to changes in dress codes could be allowed. However, the approach would be based on enumerating clear entitlements to particular accommodations of religion which are relevant to the workplace. The obvious benefit is the clarity which is created: employers and employees would know their entitlement. The main disadvantage to such an approach is that, almost certainly, the range of rights created by such a process would be very restricted. Certainty could only be achieved if there were no ‘depending on the circumstances’ or ‘proportionality’ limitation, and this would mean that any court or legislature would be very wary of creating such rights. For example, faced with deciding whether or not employees have a ‘right’ to wear a headscarf, courts are likely to decide that there is no such right. They may be happy to protect the right for some employees to wear a headscarf in some circumstances, but given a choice of a right in all circumstances or no right, they are likely to make a more conservative decision that there is no such right. The factors that are relevant to the question have been considered in detail elsewhere, but their range makes very clear that the matter is complex, and it may be that in some cases or contexts such a right should not be given.57 Thus, whilst creating certainty does have some benefits, it is likely to result in more limited protection, as courts or legislatures will be wary of creating concrete rights on such a contested and challenging issue. It is one thing to say that it is proportionate as a matter of employment law to allow a female Muslim employee to wear the headscarf to work in a particular case. It is another to say that all employees have a legal right to wear the headscarf. The unwillingness to create concrete rights in relation to religious freedom can be seen in the approach of the ECtHR to cases involving Article 9 ECHR. Where the right to religious freedom is absolute, with regard to the right to believe,58 the ECtHR and the Commission have been very restrictive in their interpretations, invariably deciding that religious rights are not applicable to the workplace. The cases in which rights have been found to apply in the work context have been those where the rights are not absolute, such as cases involving Article 9(2), Article 8 and Article 10. It is perhaps unsurprising that courts are wary of creating absolute rights, because of the need to balance rights where they conflict with each other. Where courts are considering rights to private life and free speech, the rights as protected by the ECHR include a proportionality limit. In contrast, religion in the

57 58

Discussed at p 196 ff. It is only the right to manifest religious belief that is limited in Art 9(2).

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pure form of a right to hold beliefs is enjoyed absolutely. To enable an absolute right to be exercised in the workplace would put in jeopardy a number of other interests—not only the rights of non-believers, but also the ability of employers to take positive action aimed at redressing disadvantage suffered by religious groups.59 Thus the absolute nature of the forum internum right under Article 9 ECHR, where no balancing can be undertaken with competing rights, has led to very restrictive interpretations of the right. It seems, then, that if certainty is required in relation to religious rights in the workplace, any rights created will be likely to be extremely limited and restrictive. The best chance for religious interests to be given protection is if the rights are flexible and can be interpreted to take into account the interests of others. In effect, an approach based on proportionality provides clear procedural safeguards, to ensure that restrictions on religious freedom, and exceptions to the non-discrimination principle, are imposed only after proper consideration of the varied interests at stake. Although an approach based on proportionality may be open to the charge that it masks an inherent subjectivity, and fails to give sufficient certainty to employers and employees, it remains the best way to protect religious interests in the work context. The alternative, more certain approach based on the creation of specific enumerated rights would almost inevitably result in more limited protection.

IV. Conclusion Examples given in the opening chapter demonstrated that religious discrimination in the workplace is a reality for many people. The search for an appropriate way to address the injustice that results has included an examination of the philosophical underpinnings of the right to freedom of religion, and the relationship between that right and the right not to be discriminated against on grounds of religion. The conclusion reached was that there are strong reasons for protecting religious freedom, based on equality, autonomy and human dignity, and that a right not to be discriminated co-exists with and supports the right to freedom of religion and belief. The fact that religious freedom and non-discrimination can be shown to be necessary to protect equality, autonomy and dignity does not lead inexorably to the conclusion that religion should be protected at work. This is because religious interests can, alternatively, be protected through the freedom to resign or abstain from work: individuals may have a right to freedom of religion, but they do not necessarily have a right to a given job. In effect, any assessment of the level of protection that should be afforded to religious interests in the work sphere must

59

See discussion of Re Parsons, above at p 106 ff.

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be carried out in the light of the ‘right to resign’. However, to limit protection of religion to the world outside work would be to severely limit the protection of religious interests in practice, and would mean that the religious inequalities identified in Chapter 1 will persist. If freedom of religion and belief is to be given meaningful protection in practice, resignation should remain the residual protection, to be used where accommodation of the religious interest at work is inappropriate, rather than the starting (and swift ending) point for the provision of protection. The difficulty in determining the proper parameters for protection arises from the conflict that can arise between religious interests and other interests, conflict that may stem from the positive and negative nature of religious rights. These conflicts present significant challenges, and interact with broader debates on equality, multiculturalism, and religious, political and social identity. Yet while the wider legal, political and philosophical debates continue, the Equality Act 2010 is in force and needs to be applied. What is offered here is a methodology to mediate and resolve disputes in the employment sphere, based on a reasoned and reflexive notion of proportionality. The aim has been to find some form of equilibrium whereby religious individuals can enjoy a meaningful level of protection at work, without unduly interfering with the rights of others. Protection based on proportionality offers the best chance of developing a culture of ‘respectful pluralism’60 in the modern workplace, where religious interests coexist with the rights of others as part of a broad and inclusive protection for equality, autonomy and dignity at work.

60 D A Hicks, Religion and the Workplace: Pluralism, Spirituality, Leadership (Cambridge/New York, CUP, 2003).

INDEX

Abortion exemption from work tasks 207, 208 Canada 253, 254 USA 242 Accommodation of religious practice conclusions 225 dress codes 123–126 hours of work 126 manifestation of religion 108 private sector employers 82, 83 proportionality equation 68, 85, 90, 94, 95 protection of religious interests at work 33, 36, 53, 61, 64 refusal of work tasks 127 Agnosticism definition of belief 23 Arbitration 162, 163 Armed forces employment in 81 Atheism definition of religion or belief 13, 23, 122 Austria definition of belief 139 Autonomy concept of 45–49 employers 70–72 individuals 72–74 model of equality 89 respect for 94 Belief see also Definition of belief believing without belonging/belonging without believing 4 determination 122, 123 Canada abortion 252, 253 bona fide occupational requirements 250, 251 religion or belief 255–259 religious employers 256, 257 religious requirements leading to discrimination on other grounds 257–259 anti-semitism 259 extra-marital affair 257, 258 marriage to divorced man 257

necessity for religious ethos of organisation 259 sexual orientation 258, 259 conclusion 260–262 determination of person’s religion 249, 250 dress codes 254, 255 duty of accommodation 250, 251 bona fide occupational requirement 250, 251 dress codes 254, 255 undue hardship 251, 252 work tasks 253, 254 working time 252, 253 Charities delivering public services 80 Children and young people services funded by the State 3 Church schools see Faith schools Clothing see Dress codes Contract for provision of services Equality Act 2010 exclusion 161–164 Co-religionists employment of 7–9, 75, 76 Crosses see Religious symbols Definition of belief agnosticism 23 analogy approach 23 approach of the UK courts 24–31 atheism 23 British National Party 24 climate change 24, 25, 30 cogency/seriousness/cohesion and importance 27–29 current state of knowledge 30, 31 Employment Equality (Religion and Belief) Regulations 2003 23 Equality Act 2010 23, 31, 160, 161 Equality Directive 23, 138, 139 fox hunting 26, 27 fundamental rights of others 28 genuineness 25 human dignity 28 humanism 23 opinion/viewpoint based on available information 26

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Index

philosophical belief 23, 25 political beliefs 29 protected belief 24 purposive approach 23 respectability 29 same-sex adoption 26 unacceptable beliefs 28, 29 weighty and substantial aspect of human life and behaviour 26, 27 worthy of respect in a democratic society 28 Definition of religion approach of UK courts 20–22 belief in God or gods 12 Equality Act 2010 14, 31, 160, 161 Equality Directive 138, 139 European Convention on Human Rights 13, 14 European Court 13 extra-temporal consequences 16 faith-based views 19 non-rationality of beliefs 16 religious or philosophical beliefs 14 ultimate concerns 15 Universal Declaration of Human Rights 13 USA 229–231, 237 value of religious belief 19, 20 Denmark ties between religion and state 135 Dietary rules 60 Dignity concept of 45–49 infringement see Offence or abuse model of equality 89 Doctors and nurses abortion/embryo research, exemption from work tasks 207, 208 Dress codes accommodation of religious practice 123–126 Burqa-ban in France 112, 114, 120, 121 Canada 254, 255 examples of discriminatory practice 6, 7 exclusion from employment 73 genuine occupational exception 143 headscarves see Headscarf and veil wearing imposition by employers 195, 196 justification 196 legitimate aims 196 male employee wishing to wear female clothes 111 proportionality 196, 203 protection in the workplace 55, 56, 60 religious symbols see Religious symbols ritual dagger 202 trousers, women wanting to wear 94 type of business 196 USA 241, 242 Education employment in 80, 81

Embryo research exemption from work tasks 207, 208 Employment agencies Equality Act 2010, covered by 163 Employment Equality (Religion and Belief) Regulations 2003 incorporation into Equality Act 2010 23, 167, 175, 215 Equality meaning of 88–91 court’s views 91 formal or symmetrical equality 89 human dignity and autonomy 89 inclusion and participation 90, 91 redistribution of wealth and advantage 90 removing socio-economic disadvantages 90 Equality Act 2010 application 161–164 areas covered by 163 conclusions 225–227 definition of belief 23, 31, 160, 161 definition of religion 14, 31, 160, 161 determination of organisation’s religious ethos 185, 186 determination whether religious requirement met 183–185 direct discrimination 164, 165 distinction between indirect discrimination and 173, 174 dress codes 195–204 exceptions to non-discrimination duties discrimination on other grounds, religious requirements 177–179 employers, application to 174 indirect discrimination, justification for 178, 179 Northern Ireland 183 occupational requirement 174–177 organised religion, compliance principle/ non-conflict principle 179–183 organisations with religious ethos, application to 174 proportionality 175, 176, 226 protected characteristic 174–176 religion and belief exception 176, 177 religious employers 176, 177 sexual orientation 178–183 special exception for employees of organised religion 179–183 women, working with 178 excluded occupational groups 161–164 harassment see Offence or abuse hours of work 192–195 indirect discrimination definition 165 distinction between direct discrimination and 173, 174 establishing 166 group disadvantage 167–169

Index justification 169–171 burden of proof on employer 172, 173 religious symbols 173 proportionality 169, 226 lifestyle requirements 204–206 maintaining religious ethos of religious employer 9 positive action 191, 192 public sector bodies, duty on 212–214 refusal of work tasks 207–209 religious symbols 195–204 sharing religious views at work 209–212 Sunday working and shop workers 194, 195 victimisation 186 volunteers, exclusion 161, 162, 163 Equality and Human Rights Commission research findings 7, 212 Equality Directive 2000/78 application in the workplace 135 definition of religion or belief 23, 138, 139 determination of religion or belief 139, 140 direct discrimination prohibition 136 dress codes 140–143 exceptions to non-discrimination principle 137 harassment 138 implementation 135 indirect discrimination 137 interaction with European Convention on Human Rights 150–152 margin of appreciation 155–157 reconciling equality and human rights 152–154 role of proportionality 157, 158 specific situation rule 154 value of communal interests 155 justification 137 political opinion 139 religious ethos employers, genuine occupational requirements 144–148 church bodies 144–148 genuine and determining 145 variance in state practice 135 victimisation 138 working time 143, 144 EU Charter on Fundamental Rights 150 EU Parliamentary Assembly Resolution 266 European Convention on Human Rights application of Article 9(2) in the workplace 121–130 accommodation of religious practice 123–130 determination of person’s religion or belief 122, 123 application of Convention within the workplace 101–103 freedom of expression 102 manifestation of religion 103 private sector employees 104

285

restrictive approach to freedom of religion 102 specific situation rule 101, 102 bases for protection of religious interests 101 conclusion 134 contracting-out of Convention rights 104, 105 definition of religion 13 freedom of religion under Article 9 limitations as prescribed by law 110, 111 manifestation of religion or belief in worship, practice and observance 107–110 nature of applicant’s job 114, 115 nature of employer 116 nature of religious belief 117 nature of restriction on religion 113, 114 provision 105 –107 relationship between religious expression and applicant’s job 116 restriction or interference with 110, 1 right to freedom of thought, conscience and religion 105, 106 harassment 130–132 incorporation into Human Rights Act 1998 see Human Rights Act 1998 interaction with Equality Directive 150–152 margin of appreciation 155–157 reconciling equality and human rights 152–154 role of proportionality 157, 158 specific situation rule 154 value of communal interests 155 limitations as prescribed by law Article 9(2) 110 legitimate aims 111, 112 margin of appreciation 113, 117–121 necessity of 113–117 prescribed by law definition 110, 111 margin of appreciation role broad use of 118, 119 flexibility 118 reliance on 118 protection against discrimination under Article 14 employment context 132 harassment 132 interference with Convention rights 132 obligation to provide full enjoyment of Convention rights 131 private life, respect for 132 provision 131 protection of religious interests 101 European Court definition of religion 13 European Union ties between religion and state 135, 136

286 Exclusion from employment 72–74 Experience of discrimination 5–8 Evidence of discrimination 2011 Census 6 Home Office study 2001 6 Extra-marital relationships 129, 205, 206, 257, 258 Faith groups see also Religious groups involvement in provision of public services 2, 3 Faith schools academies 216, 217, 219, 220 appointment of staff 8, 9, 218, 219 community schools 217– 219 Equality Act 2010 218– 220 Equality Directive 220, 221 foundation schools 216, 217, 219 free schools 217 head teacher, appointment of 218, 219 history of 216, 217 incompatible conduct 219 legal provisions 214 level of religiosity, variance in 217 lifestyle requirement 218, 219 non-Christian faith schools 217 non-teaching staff 215 occupational requirement exception 215 proportionality 215, 220–222 religious practice considerations 218 Schools Standards and Framework Act 1998, application 214–220 social cohesion grounds 44 state-funded 2, 215, 220 teaching staff appointment of 8, 9, 215, 218 legal provisions 216, 220 religious requirements, imposition 218, 220 reserved for religious education 218 types of schools 216 Finland ties between religion and state 135 France Burqa-ban 112, 114, 120, 121 dress codes 141, 142 religious ethos-based organisations 147 religious holidays 144 ties between religion and state 136 Freedom of association right to 68, 69 Freedom of religion European dimension see European Convention on Human Rights negative dimension 3 Freedom of speech abortion, dismissal of Roman Catholic doctor 128, 129

Index private aspect of the workplace 84 right to 68, 69 Germany dress codes 140, 141, 156, 200 exception for religious communities 146, 149 separation of church and state 145 sexual orientation 148, 149 ties between religion and state 135, 138 Harassment see Offence or abuse Headscarf and veil wearing Equality Act 2010 201, 202 exclusion from employment 73 freedom of expression 199, 200 gender equality 199 health and safety requirements 197 interests of others 200 justification for restriction 197 proportionalityof restriction 197–199 public sector/state employment 197 resignation rights 200 socio-economic aspects 199 USA 232, 233, 241, 242 variance in state practice 140–143 Higher education Equality Act 2010, covered by 163 Home Office study 2001 evidence of discrimination 6 Hours of work see Working time Human rights autonomy and dignity 45–49 European Convention on Human Rights see European Convention on Human Rights Human Rights Act 1998 see Human Rights Act 1998 public /private workplaces 32, 34, 35, 39 Human Rights Act 1998 breech of Convention rights 98 domestic courts 100 duty of trust and confidence 100 employees of public bodies independent cause of action 98, 100 European Convention on Human Rights incorporation into 97 interpretation of statutes 98 private organisations 98, 99 protection under 97–100 public authorities 98 range of employees covered by 98 rights of action against public authorities 98 right to freedom of thought, conscience and religion 98 unfair dismissal 99 Independent contractors Equality Act 2010 exclusion 161–164

Index Independent Review of the Enforcement of UK Anti-Discrimination Legislation 266 India religious conflict 41 Insults see Offence or abuse Interviews discriminatory practices 6 Equality Act 2010, covered by 163 Ireland religious ethos-based organisations 147 sexual equality rights 147, 148 ties between religion and state 135 Italy ties between religion and state 135 Job interviews see Interviews Lifestyle requirements faith schools 218, 219 religious ethos employers 204–206 sex discrimination 205 Manifestation or motivation of religion distinction between 85–87 protection under European Convention on Human Rights 103, 107–110 Margin of appreciation 113, 117–121, 155–157 Netherlands definition of religion or belief 138–140 division between church and state 145 dress codes 140 Northern Ireland clergy 183 determination of religion of applicants 184 Equality Act 2010 159, 183 exceptions to non-discrimination 183 police force 183, 184 political opinion 161 religious conflict 41 teachers 183 Offence or abuse assessing level of harm 76 bare knowledge of work practices 76–79 cause of 74 dignity, infringement of 74–76 exception to non-discrimination principle 75 harassment association with people of particular religions 187, 188 definition 186 dignity 188, 190 Equality Act 2010 186–191 equality measures 75 ethos of the workplace 190 environment 188, 189

287 European Convention on Human Rights 111, 130–132 European Directive 135, 138, 149 freedom of speech 189, 190 intentional behaviour 190 interests of offender/victim 76 offensiveness test, subjective element 189 perception of victim 189 promotion of religious views 187, 188 proselytism 191 protection at work 68, 84 religious speech/secular speech 187 right to enjoy freedom of religion 187 specific situation rule 154 USA 244–247 verbal attacks 187 hostile environment 75 intensity/duration and extent 76 malice or spite 77 religious belief, offending behaviour caused by 77 religious employers employing co-religionists 75, 76 expected behaviour then avoided 77, 78 toleration 74 victimisation 135, 138, 186, 213

Political beliefs 29, 30, 139 Prayer rituals protection in the workplace 55, 56, 60 religious manifestation or motivation 86 working hours 193 Private sector employers division between public sector and 79, 80 employment relationship 82 engagement with the public 82 Human Rights Act 1998, application to see Human Rights Act 1998 parameters of religious freedom 2 recruitment policies 83 religious accommodation 82 religious interests, treatment of 82, 83 Proportionality balancing fundamental rights 65, 66 competing rights 66, 67 contextual issues equality, meaning of 88–91 organic/functional view of the religious workplace 87, 88 private sector employers 82, 83 public/private divide 79, 80 public sector employers 80–82 religious manifestation/religious motivation 85–87 role of the State 92, 93 socio-political context 91, 92 work as public/private space 83–85 determination of 66, 94

288

Index

economic efficiency 69, 70 employer autonomy and reputation 70–72 equality rights of others 67, 68 free from offence, right to be 74–79 freedom of association 68, 69 freedom of speech 68, 69 individual’s autonomy 72–74 interaction of human rights and equality 157, 158 interest in being at work 72–74 negative aspect of freedom of religion 68 private life, right to 68, 69 Proselytism abuse of power 116 harassment, form of 191, 210 improper 210 manifestation of religion 72, 88, 191 Protection for religion in the workplace accommodation of religion 36, 82, 95 balancing exercise 33 contracting out 62 economic benefits of work 56 employers, obligation on 36 equality reasons 59–62 freedom from religious discrimination 52 freedom of association 34 freedom of expression 34 freedom of religion 52 freedom to resign 54 human rights 32, 34, 35 justification forprotection 39, 40, 53 aesthetic grounds 43 alienation of minorities, prevention 42 autonomy 45–49 concepts of the good 47 conflict resolution 41, 42 dignity 45–49 enhancing social inclusion 42 religious reasons 40, 41 secular explanation 40, 41 self-respect/self worth 48 sense of identity 47 social cohesion 43, 44 social inclusion 41, 42 value of religion 42 micro and macro interests 93 non-financial benefits of employment 56–59 opting-out of employment relationship 62, 63 particular right to freedom of religion 33–35 private life, right to 34 proportionality equation see Proportionality equation psychological benefit of active participation in the workforce 58 religious interests 35, 36 right to resign 54, 55, 63, 64 terminology 35, 36

trust and confidence 59 Public Sector Duty 212–214 Public sector employers conflict between religious interest and other equality interests 81 dignity, protection of 81 division between private sector and 79, 80 equality duty, introduction by Equality Act 2010 212–214 Human Rights Act 1998, rights of action see Human Rights Act 1998 parameters of religious freedom 2 proportionality of protection 81 representing the state 80, 81 Qualifications bodies Equality Act 2010, covered by 163 Refusal of work tasks abortion/embryo research 207, 208 alcohol handling 127, 207 justification for 208 manifestation of religion 127 marriage registrar, civil partnership ceremonies 127, 208 meat products handling 127, 207 proportionality 127 psycho-sexual therapy 208 reasons of conscience 207 Religion definition of see Definition of religion in the UK 3–5 Religious bodies appointment of religious staff 8, 71 Religious employers autonomy and reputation interests 71, 94 church bodies, exception for 145–148 employment/recruitment of fellow believers 7–9, 75 genuine occupational requirements, exception for 145–148 discrimination on other grounds 148, 149 genuine and determining 145 loyalty and good faith 146, 204 proportionality 145, 204 religion or belief 176, 177 sex or sexual orientation 148, 149 termination of employment 146 variance between member states 145–148 lifestyle requirements 204–206 maintaining religious ethos 9 Religious groups autonomy 51, 71 dismissal of staff 128, 129 employment relationships 71, 94, 128 European Convention on Human Rights 128–130 interaction with the rest of society 95

Index religious interests 50, 51 respect for wider society 95 Religious festivals and holidays Christmas and Easter 60 examples of discriminatory practice 7 public sector duty 213, 214 time off for 126, 144, 192–194 variance in state practice 144 Religious manifestation distinction between religious motivation and 85–87 Religious motivation distinction between religious manifestation and 85–87 Religious schools see Faith schools Religious symbols crosses worn at work 109, 119, 122, 125, 167, 202, 203 crucifixes displayed in schools 109, 110 genuine occupational exception 143 proportionality 203 Religious workplaces imposition of religious requirements 87 organic or functional view of 87 Resignation right 54, 55, 63, 64 Sex or sexual orientation conflict with religious freedom 9, 10 exceptions to discrimination, for the purposes of organised religion 179–183 same-sex marriage 180 Shop workers Sunday working 194, 195 Social inclusion need for 91, 92 Spain ties between religion and state 135 time off for certain religions 144 Specific situation rule 101, 102, 154 Sunday work see Weekend work Teachers see also Faith schools non-faith schools, protection from discrimination 214, 21 of religion 88 Termination of employment religious ethos employers 146 Time-off see Working time Trade organisations Equality Act 2010, covered by 163, 164 UN Special Rapporteur 266 Unfair dismissal fair reason test 223, 224 limited protection outside the Equality Act 2010 222

289

procedural fairness 225 United States of America abortion, refusal of work tasks 242 bona fide occupational qualification exception 229, 230 direct and indirect discrimination 231–233 diversity policies 242, 243 dress codes 241, 242 duty of reasonable accommodation 233, 237–243 harassment 244–247 freedom of speech 245, 246 hostile environment 244, 245 proselytism 244, 245 severe and pervasive 244, 246 sexually explicit comments 245 meaning of religion 229–231, 237 refusal of work tasks 242 religious practice and observance 231 work tasks, refusal 242 leave to attend religious ceremonies 241 working time 240, 241 Universal Declaration of Human Rights definition of religion 13 Victimisation see Offence or abuse Voluntary workers Equality Act 2010, exclusion 161, 162, 163 Weekend work employment exclusion 73 Equality Directive 143, 144 examples of discriminatory practice 6 priority in avoiding working 194 proportionate means of achieving legitimate aim 193 religious beliefs 5 Seventh Day Adventists 126, 144, 194 shop workers and Sunday trading 194, 195 Working time Canada 252, 253 Equality Act 2010 192–195 Equality Directive 143, 144 examples of discriminatory practice 7 flexibility 193 indirect discrimination 143, 144, 193 time off for religious observance 126, 144, 192–194 USA 240, 241 variance in state practice 144 weekend work see Weekend work Workplace public or private space, as a 83–85 Work tasks refusal see Refusal of work tasks

290