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Religious Discrimination in the Workplace: An Emerging Hierarchy?

  • Lucy Vickers (a1)

Abstract

This article considers some of the more high profile cases decided under the Employment Equality (Religion or Belief) Regulations 2003, to assess whether courts are developing case law which adequately protects religion and belief at work. First, it considers the meaning of religion with particular reference to Nicholson v Grainger PLC and suggests that this may represent a step in the wrong direction in defining ‘belief’. It then looks at cases which have involved religious individuals seeking to manifest religion at work in terms of religious dress. It critically examines the way the concept of proportionality has been used to decide these cases, and suggests that at times courts are stepping beyond their usual boundaries in determining religious issues, with particular reference to comments by the courts on issues such whether particular beliefs are ‘core beliefs’. The third area of discussion is the question of whether discrimination by religious individuals on grounds of sexual orientation should be tolerated. The case law (Ladele v Islington Borough Council) is considered in detail. In conclusion, the article assesses whether a hierarchy is developing between different grounds of discrimination protection.

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1 The Equality Act 2010 was given royal assent on 8 April 2010, but it is not expected to come into force until October 2010. As its provisions do not materially change the law on the issues discussed, this article will refer to the 2003 Regulations in force at the time or writing.

2 Provisions protecting against discrimination on grounds of religion and political opinion were already in force in Northern Ireland (Fair Employment and Treatment (Northern Ireland) Order 1998).

3 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, US and India (Arts 25–28, Constitution of India).

4 For example A McColgan, ‘Class wars? Religion and (in)equality in the workplace’ (2009) 38 ILJ 1, A Lester and P Uccellari ‘Extending the equality duty to religion, conscience and belief: Proceed with caution’, (2008) EHRLR 567.

5 For a discussion of the US and Canadian case law see C Stychin, ‘Faith in the future: sexuality, religion and the public sphere’, (2009) OJLS 729, and Vickers, L, Religious Freedom, Religious Discrimination and the Workplace (Oxford, 2008), ch 6.

6 For the approach under the ECHR see Evans, C, Freedom of Religion under the European Convention on Human Rights (Oxford, 2001), ch 4.

7 Pitt, G, Religion or Belief: Aiming at the Right Target? In Meenan, H (ed), Equality Law in an Enlarged EU (Cambridge, 2007).

8 ET Case No 2302061/2004 (9 August 2004).

9 McClintock v Department of Constitutional Affairs [2008] IRLR 29.

10 See Cumper, P, ‘The public manifestation of religion or belief: challenges for a multi-faith society in the twenty-first century’ in O'Dair, R and Lewis, A (eds), Current Legal Issues (vol 4, Oxford, 2000), p 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.

11 Nicholson v Grainger plc UKEAT/0219/09.

12 Campbell and Cosans v United Kingdom (1982) 4 EHRR 293 at para 33.

13 Although belief that exercise and diet are important to health is almost universally held, there are some sceptics: see for example Exercise may be bad for you <http://machineslikeus.com/news/exercise-may-be-bad-you>, accessed 23 April 2010.

14 Glasgow City Council v McNab UKEATS/0037/06/MT at para 61.

15 Employment Equality (Religion and Belief) Regulations 2003, SI 2003/1660, reg 7(3).

16 See Nicholson v Grainger UKEAT/0219/09 at para 10.

17 Protection for political opinion can also be found in Belgium, Cyprus Czech Republic, Denmark, Estonia, Finland, France, Hungary, Italy, Latvia, Luxembourg, Malta, the Netherlands, Poland, Portugal, Slovenia and Spain. The remaining Member States do not provide specific protection for political opinion.

18 Nicholson v Grainger UKEAT/0219/09 at para 28. However, note that a later Employment Tribunal decision (Kelly v Unison 28 Jan 2010, ET/2203854-57/08) has confirmed that the Regulations do not protect all political beliefs and opinions, and in particular they do not protect beliefs based on Marxism/Trotskyism and the Socialist Party.

19 Handyside v United Kingdom, (1976) 1 EHRR 737.

20 For example in R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15. Lord Walker stated ‘in matters of human rights the court should not show liberal tolerance only to tolerant liberals’ at para 60 also discussed by Christopher McCrudden, ‘Religion, Human Rights, Equality, and the Public Sphere’ (paper to the Ecclesiastical Law Society, 13 March 2010).

21 R (Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100.

22 Williamson v Secretary of State for Education and Employment [2005] UKHL 15.

23 Ibid, where Lord Walker says ‘the court is not equipped to weigh the cogency, seriousness and coherence of theological doctrines’. For a discussion of the trend of the ECtHR to define as religious only those manifestations which support a secular society, see Evans, M, ‘Freedom of religion and the ECHR: approaches, trends and tensions’ in Cane, P, Evans, C and Robinson, Z, Law and Religion in Theoretical and Historical Context (Cambridge, 2008).

24 For the debate in the US 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 753–816, R Frame, ‘Belief in a non-material reality – a proposed first amendment definition of religion’ (1992) Uni Of Illinois LR 819, J Choper, Definition of “Religion” in the First Amendment' (1982) Univ of Illinois LR 579, M. See also W Sadurski, ‘On legal definitions of religion’ (1989) 63 Australia LJ 834, T Macklem in ‘Faith as a secular value’ (2000) 45 McGill LJ 1, Edge, P, Legal Responses to Religious Difference (The Hague, 2002), ch 1 and L Vickers, Religious Freedom, Religious Discrimination and the Workplace, ch 2.

25 However, where such beliefs are framed in more traditionally ‘religious’ terms, (eg a white supremacist religion such as ‘the World Church of the Creator’ in Peterson v Wilmur Communications 205 F Supp 2d 1014 (2002)) the protection may still be given, but again, limitations on manifestation could be allowed where the beliefs interfere with the rights of others.

26 Azmi v Kirklees Metropolitan Borough Council [2007] ICR 1154.

27 Handyside v United Kingdom (1976) 1 EHRR 737 at para 48.

28 Ansonia Board of Education v Philbrook 479 US 60 (1986).

29 Eweida v British Airways [2010] EWCA Civ 80. See the comment on the EAT decision: L Vickers, (2009) 11 Ecc LJ 197.

30 Emphasis added.

31 [2010] EWCA Civ 80 at para 17.

32 On the need to interpret employment law to comply with the ECHR, see Pay v Lancashire Probation Service [2004] ICR 187 EAT, and X v Y [2004] EWCA Civ 662.

33 Bamforth, N, Malik, M and O'Cinneide, C (eds), Discrimination Law, Theory and Context (London, 2008), p 307308.

34 See for example, Allen, R and Moon, G, ‘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.

35 Eweida v British Airways [2010] EWCA Civ 80 at para 18.

36 Ladele v Islington Borough Council UKEAT/0453/08, EAT; Ladele v Islington Borough Council [2009] EWCA Civ 1357, CA.

37 McFarlane v Relate Avon Ltd UKEAT/0106/09/3011, 30 November 2009.

38 She was prepared to carry out other services, such as registering births and deaths for LGBT clients, but not civil partnerships.

39 For example, Elias J stated ‘We agree that this characterisation of a thoughtful and temperate letter was extraordinary and unreasonable’ UKEAT/0453/08 at para 77.

40 UKEAT/0453/08 at para 130, and [2009] EWCA Civ 1357 at para 75.

41 While there is no formal separation of church and state in the UK, there is a general acceptance that the public sphere should be largely secular. See for example the comment of the EAT in Glasgow City Council v McNab UKEATS/0037/06/MT at para 61, at n 14 above, and the comments of Laws LJ in McFarlane v Relate [2010] EWCA Civ B1 at paras 23 and 24.

42 See J Rawls, A Theory of Justice (revised edition, Oxford, 1999) 196, which argues that justice as fairness requires equal participation in the state.

43 See C Stychin, ‘Faith in the future: sexuality, religion and the public sphere’, who raises the concern that denying any workplace ‘accommodation’ to those with religious objections to homosexuality effectively requires that those views are kept to the private sphere, and this may amount to ‘relegating those of faith to the closet from which [the LGBT community] have emerged’ (at 733).

44 Equality Act (Sexual Orientation) Regulations 2007, SI 2007/1263.

45 [2009] EWCA Civ 1357 at para 75.

46 UKEAT/0453/08 at para 116.

47 Bilka-Kaufaus GmbH v Weber von Hartz (Case 170/84) [1987] ICR 110.

48 Hardy & Hansons plc v Lax [2005] ICR 1565, CA, para 31.

49 Bilka-Kaufaus GmbH v Weber von Hartz (Case 170/84) [1987] ICR 110. However, see A Baker, ‘Proportionality and employment discrimination in the UK’, (2008) 37(4) ILJ 305–328 for criticism of the standard of review in sex discrimination cases.

50 On the question of hierarchies of rights see C McCrudden, ‘Thinking about the discrimination directives’ (2005) 1 European Anti-Discrimination Law Review 17, M Bell and L Waddington, Reflecting on inequalities in European equality law’ (2003) 28 EL Rev 349, and L Vickers, Religious Freedom, Religious Discrimination and the Workplace, ch 7.

51 Ladele v Islington Borough Council [2009] EWCA Civ 1357 at para 52.

52 Arrowsmith v UK [1978] 3 EHRR 218.

53 See further the discussion in L Vickers, Religious Freedom, Religious Discrimination and the Workplace, ch 3. See also Bagni, B, ‘Discrimination in the name of the lord: a critical evaluation of discrimination by religious organisations’ (1979) 79 Colum LR 1514.

54 R v Secretary of State, ex parte Williamson [2005] UKHL 15 at para 22.

55 See McCrudden, ‘Religion, Human Rights, Equality, and the Public Sphere’, 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.

56 It is notable that in Williams v Secretary of State for Education and Employment [2002] EWCA Civ 1926, some of the judges 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; See Buxton LJ at para 76, and Elias J in the first instance hearing.

57 R (Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15.

58 R (Watkins-Singh) v The Governing Body of Aberdare Girls' High School [2008] EWHC 1865 (Admin).

59 Although Lord Neuberger included the fact that staff were offended by her stance in a list of factors which were relevant to the decision that Islington could justify its requirement: Ladele v Islington Borough Council [2009] EWCA Civ 1357 at para 55.

60 The issue has been extensively discussed in the US literature Volokh, ‘Freedom of speech and workplace harassment’ (1992) 39 UCLA L Rev 1791. See also KR Browne, ‘Title VII as censorship: hostile environment harassment and the First Amendment’ (1991) 52 Ohio St LJ 481.

61 This issue is discussed in more detail in Vickers, L, ‘Is all harassment equal? The case of religious harassment’ (2006) 65(3) CLJ 579605. See also S 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.

62 UKEAT/0453/08 at para 77, and [2009] EWCA Civ 1357 at para 33.

63 Arrowsmith v UK (1978) 19 D&R 5.

64 H v UK (1993) 16 EHRR CD 44.

65 For a discussion of the theoretical difficulties inherent in any balancing exercise of this type, see Vickers, L, Freedom of Speech and Employment (Oxford, 2002), ch 2. See also J Rivers, ‘Proportionality and variable intensity of review’ (2006) 65(1) CLJ 174–207 and Beatty, D, The Ultimate Rule of Law (Oxford, 2004).

66 Regulation 7(2) and 7(2) of the Employment Equality (Religion and Belief) Regulations 2003. For discussion of these provisions see L Vickers, Religious Freedom, Religious Discrimination and the Workplace, ch 5.

67 ‘Muslim stylist wins £4,000 payout’, BBC News Website 16 June 2008, <http://news.bbc.co.uk/1/hi/england/london/7457794.stm>, accessed 22 April 2010 and ‘Christian nurse loses battle to wear crucifix at work’, The Guardian 6 April 2010.

68 See C Stychin, ‘Faith in the future: sexuality, religion and the public sphere’.

69 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, p 325.

70 This also, of course, returns again to the question discussed above of the courts' competence to determine such questions.

71 S Webster, ‘Misconceptions about the nature of religious belief’, EOR April 2010.

72 P Edge, ‘The definition and determination of religion in 21st Century English law’, Applied Study of Religion and Law Work in Progress Seminar, Oxford Brookes, January 2010.

73 M Evans, ‘Freedom of religion and the ECHR: approaches, trends and tensions’.

74 McFarlane v Relate Avon Ltd [2010] EWCA Civ B1.

75 [2010] EWCA Civ B1 at para 26.

76 For a similar point made in relation to disability discrimination, see J Davies, ‘A cuckoo in the nest? A “range of reasonable responses”, justification and the Disability Discrimination Act 1995’, (2003) 32 (3) ILJ 164–184.

77 See Pitt, G, ‘Religion or belief: aiming at the right target?’ in Meenan, H (ed), Equality Law in an Enlarged EU (Cambridge, 2007).

78 The early decisions of the European Court of Justice interpreting legislation introduced under a different ground reinforces the idea of a common understanding of equality, and the need for common standards to be introduced across the different equality grounds: Chacón Navas v Eurest Colectividades SA (2006) C-13/05, at para 40.

79 C McCrudden, ‘Thinking about the discrimination directives’.

80 M Bell and L Waddington, ‘Reflecting on inequalities in European equality law’ (2003) 28 EL Rev 349.

81 Eweida v British Airways [2010] EWCA Civ 80 at para 40.

82 For example, it could be argued that religion is not alone in being a matter of choice; given the availability of gender reassignment procedures, it is arguable that gender can be chosen.

83 C Evans, ‘Introduction’, in Cane, Evans and Robinson, Law and Religion in Theoretical and Historical Context. See also McCrudden, ‘Religion, Human Rights, Equality, and the Public Sphere’.

84 See P Edge, ‘Religious rights and choice under the European Convention on Human Rights’, [2000] 3 Web JCLI, and Wintemute, R, Sexual Orientation and Human Rights (Oxford, 1995).

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