The protected characteristic of religion or belief

Religious discrimination is more complicated than other forms of discrimination because it is intrinsically linked to racial, ethnic and cultural discrimination: for instance in the case of Judaism during World War II, cultural discrimination linked to anti-Muslim prejudice, or even political affiliation in the conflict between Catholics and Protestants in Northern Ireland.

Religion and belief is a protected characteristic for the purpose of the Equality Act 2010 (EA 2010), under s 10. The explanatory notes issued by the government to the Bill for this Act state that the protection covers a wide definition in line with the protection guaranteed by Article 9 of the European Convention on Human Rights (ECHR), which was incorporated into UK law by the Human Rights Act 1998 (HRA 1998). Article 9 of the Act is freedom of thought, conscience and religion and any reference to Article 9 in this essay refers to the HRA 1998.

Article 9 is qualified. Although under Art 9(1) everyone has the freedom to profess a religion, including the right not to hold a belief, under Art 9(1) the manifestation of a religion or belief is subject to proportionate limitations which are necessary by inter alia, protecting the rights and freedoms of others. This qualification becomes very important in cases when there is reliance on a religious belief to either justify discrimination against others or interfere with the rights of others on the grounds that this is required by a particular religious belief. For instance, should it be permitted for a classroom assistant to cover her face with a veil because of her religious belief, even if the children’s learning is affected by not being able to see her facial expression? In Azmi, the Employment Appeal tribunal (EAT) found that Azmi had not been directly discriminated against when she was suspended for refusing to remove her face veil; she was not being treated differently because of being a Muslim; the EAT took the view that anyone who would cover their face with a veil would be treated in the same way, regardless of their religion; on the other hand, the EAT found that Azmi had been indirectly discriminated against because the requirement not to wear a face veil while teaching put her at a disadvantage as a Muslim, but the discrimination was justifiable and proportionate: the aim was to allow the children to get a good education and they needed to see her face.

Justification is therefore, a requirement to allow indirect discrimination in general, and highly applicable in cases of discrimination based on religious grounds. It is achieved through proportionality, which requires close scrutiny of the aims behind its application and the means to achieve those aims. Problems can arise because what is proportionate is open to interpretation and because it is hard to establish how close the ‘fit’ should be between the means and the ends that are being achieved. The established formulation is that costs are not acceptable as a justification; it must be shown that the measure chosen is the only alternative and that it serves a real business need.

Justification is therefore required when measures taken indirectly discriminate against others; this is highly applicable in cases of discrimination based on religious grounds. Justification  is achieved .....

One of the problems is that in order to prove indirect discrimination it is necessary to prove group disadvantage, which is why Eweida failed in the English courts when trying to prove that she was being discriminated against for wearing a cross, which was contrary to a British Airways uniform policy; the court ruled that she was the only Christian who was complaining about the rule and therefore this was not indirect discrimination but just a personally held belief; however she did eventually win her case in the European Court of Human Rights (ECtHR). The same approach was taken in the case of R (X) v Y School. The court ruled that the school policy not to allow a niqab to be worn was proportionate and justifiable, inter alia, because the teachers had to see a pupil’s face to relate to them; other Muslim students at the school had no complaints about the uniform policy.

however she did eventually win her case in the European Court of Human Rights (ECtHR).

A development in discrimination law is the concept of dignity, which is now the basis of the statutory definition of harassment in the EA 2012. The Act prohibits in s 26, ‘unwanted conduct relevant to a relevant protected characteristic which has the purpose or effect of violating another’s dignity’. The importance of dignity is that it avoids the need for a comparator. As discussed above, in indirect discrimination, cases based on religion are easier to prove when based on collective practice (because of the need for a comparator), than those based on individual conscience. The concept of dignity helps those cases in which individual conscience forms the basis for assessing discrimination because it makes it impossible to argue that ‘equally bad treatment’ is satisfied, or that by removing a benefit from the advantaged group there is a ‘levelling down’, because equality as dignity enhances the status of individuals.

The EA 2010 offers certain types of protection on grounds of religion but it is by no means totally comprehensive in its scope. Although a person is protected in the context of employment from direct and indirect discrimination as well as victimisation on religious grounds, there is no protection regarding religion or belief in the Act for the provision of services or the exercise of public functions under s 29(8), the disposal of premises under s 33(6) or under s 85(2) which states that: religion or belief does not apply in relation to anything done in connection to acts of worship or religious observance organised by a school, whether or not part of the curriculum.  An exception is employment in a school if it is one of a specific religious denomination. In such cases the school may require that the applicant will have to conform to certain religious beliefs and practices to avoid conflict with the ethos of the establishment. The employer must prove that the occupational requirement is necessary and it is a proportionate means of achieving a legitimate aim.

Pluralism represents a challenge when it comes to issues of religious discrimination because if a person believes in one faith, he cannot believe in another one. The relationship between religion and other grounds of discrimination can be conflicting, because religions are based in faith rather than reason; their allegiance is to God rather than to a legal system. Apart from this, the cases involving discrimination linked to religious beliefs are heard in a secular court, which is generally reluctant to rule on issues of religious doctrine. In Khaira v Shergill, the Court of Appeal struck the case, adducing that the dispute hinged on the basis of Sikh doctrine and therefore it was not justiciable in a secular court. On appeal in the Supreme Court, it was pointed out that where private rights such as property rights or contractual claims are at stake, the court cannot avoid deciding on doctrinal issues to resolve a civil claim.

 However, regardless of what people may believe in, religious belief cannot be used to exempt people from obeying general laws designed for the good of society. An example of this is Bull v Hall, a case in which Christian hotel-keepers refused to let a room with a double bed to a homosexual couple. However, they were happy to let a single bedroom or one with twin beds to anyone. The case failed on the grounds of direct discrimination because the rule applied in this particular hotel to heterosexuals or anyone who was not married. The homosexual couple were in a civil partnership, but the court ruled in their favour, stating that because gay marriage did not exist, it was indirectly discriminatory to have a marriage-based rule because same-sex people could not get married, and it stressed that the hotel-keepers could not offer their services in a way that contravened discrimination law.

An example is provided by Bull v Hall. In this case, Christian hotel-keepers refused to let a room with a double bed to a homosexual couple because it was against their religious belief. The case failed on grounds of direct discrimination as the rule applied, to heterosexuals as well if they were not married. The homosexual couple were offered a room with twin beds or single bedrooms but they refused to accept it. The court found that the couple were indirectly discriminated against because although they were in a civil partnership, gay marriage did not exist, and it was indirectly discriminatory to have a marriage-based rule as same-sex couple could not comply with it; the court stressed that the hotel-keepers could not offer their services in a way that contravened discrimination law.

In employment cases, the need to accept compromise is taken into account by the courts when trying to prove cases based on religious beliefs as shown in Ladele. Miss Ladele, a registrar, refused to perform civil partnerships because they were contrary to her religious beliefs. This conflicted with her employer’s (the Islington Borough Council) duties to offer services without discriminating on the grounds of sexual orientation. She was offered a compromise: not to perform the ceremonies but to only take part in the administrative arrangements; she refused and lost her job. She also lost her case in the ECtHR.

It has been suggested that the approach of the Canadian courts to religious discrimination cases by using a reasonable accommodation test is more suitable than the current approach used in UK courts. Reasonable accommodation does not require a comparator; it focuses only on any omission to provide a reasonable accommodation in the first place, that is to say, it transpires as a response to a failure to make changes to ensure equal opportunities. It seems however, that UK law is heading that way: the Equality and Human Rights Commission (EHRC) has issued a guide for employers, in view of ECtHR’s rulings. It urges employers to treat all requests related to religion and belief seriously unless there is a compelling reason not to do so.

In order to balance the employee’s request with the need to make a business work, employers are advised to take into account factors such as the cost, disruption and wider impact on business if the request is accommodated, as well as health and safety implications, and to weigh that against the impact on the employee is the request is denied, the impact on other employees and the impact on customers or service users. An interesting point is the impact on other employees: whether resentment coming from other employees if the request is implemented could be sufficient to use as a justification for denying a request. An argument against reasonable accommodation is that if a duty is imposed in religious cases, it would show that religion and belief are above other protected characteristics, except for disability because the EA 2010 imposes a duty on the employer to make reasonable adjustments under s 20.

The approach of other European countries regarding the manifestation of religious beliefs has been controversial, for instance the stance taken by France. In 2010 the country banned the use of a face veil in public, based on a French statute of 15 March 2004, which allows officials in public schools to prohibit the wearing or religious garments. The statute itself was based on the French concept of laicité, contained in a French law dating back to 1905, which demands secularism in the public domain, limiting all religious expressions to private practice. The question is whether there should be a secular approach to religious manifestations throughout Europe in order to create integration, whether that is a better approach than trying to accommodate individual religious manifestations or whether the secular approach is inherently discriminatory. The Netherlands and Belgium have also taken the French secular approach and legally banned the use of face coverings in public places.

Recent cases in the ECtHR regarding the French ban on face veils have failed. In SAS, the Grand Chamber stated that although common values form explicitly part of the problem, they also form the solution because they define the content of the minimum requirement for living together, and therefore the ban was justified. Cases have also failed in the national courts. The case of Baby Loup failed in the French Cour de Cassation; this case also shows that the ban on face coverings is now extending to the private sector, not simply relegated to public places: it involved a private nursery employee who was dismissed for refusing to remove the Islamic veil. The court stated that it is forbidden for all people dealing with small children to have face-concealing religious manifestations.

Recent cases in the ECtHR regarding the French ban on face veils have failed. In SAS, the Grand Chamber stated that although common values explicitly form part of the problem........

There is no doubt that secularism is now part of the debate across Europe when looking for possible solutions to deal with religious discrimination, which has also become linked to issues of national security; secularism has received a bad press in recent years; academic critique claims that it too often combines neutrality towards religion with hostility towards it.  Perhaps a solution would be to separate religious discrimination from other types of discrimination and formulate a new concept of secularity for the multicultural society of the modern age; after all, as stated above, religious discrimination cases are heard and decided in secular courts.  

Bibliography

Daly E, Public funding of religions in French law: the role of the Council of State in the politics of Constitutional Secularism (2014) 3(1) Oxford Journal of Law and Religion, 103-126

EHRC, Religion or belief in the Worplace: A Guide for Employers Following Recent Eurpean Court of Human Rights Judgements (2013)

Fredman S, Discrimination Law (2nd edn, OUP, 2012)

Gibson M, The God ‘Dilution’ religion, Discrimination and the Case for Reasonable Accommodation (2013) 72 The Cambridge Law Journal 578-616

Hale of Richmond Baroness, Secular Judges and Christian Law,  (2015) 17(2) Ecclesiastical Law Journal, 170-181

Hoffman D, Rowe J QC, Human Rights in the UK (3rd edn, Pearson 2010)

Hunter-Henin M, Living together in an age of religious diversity: lessons from Baby Loup and SAS (2015) 4(1) Oxford Journal of Law and Religion, 94-118

Leigh I, Book Reviews: The Power of Religion in the Public Sphere; A Secular Europe: Law and Religion in the European Constitutional Landscape; Democratic Authority and the Separation of Church and State (2015) 17, Ecclesiastical Law Journal, 96-98

Marshall J, The Legal Recognition of Personality: full veils and permissible choices (2014) 10(1) International Journal of law in Context, 64-80

Pitt G, Taking Religion Seriously (2013) 42(4) Industrial Law Journal 398-408

Vickers L, Religious discrimination in the workplace: An emerging hierarchy? (2010) 12 Ecclesiastical Law Journal 280-303

Vickers L, Indirect discrimination and individual belief: Eweida v British Airways Plc (2009) 11(2) Ecclesiastical Law Journal 197-203

Cases

Azmi v Kirklees Metropolitan Borough Council [2007] ICR 1154

Bull v Hall  [2013] UKSC 73, [2013] 1 WLR 3741

Cass Ass Plén 25 June (2014) Recuieil Dalloz, 1386 (Baby Loup)

Eweida v British Airways Plc [2009] ICR 303 (EAT)

Khaira v Shergill  [2014] UKSC 33, [2014] 3 WLR 1

Ladele v Islington LBC [2009] EWCA Civ 1357; [2010] 1WLR 955

R (X) v Head Teachers and Governors of Y School [2007] EWHC 298 (Admin)

SAS v France, Application number 43835 (ECtHR Grand Chamber, 1 July 2014)

Legislation

Equality Act 2010

European Convention on Human Rights

Human Rights Act 1989

Loi n° 2004-228 du 15 mars 2004

Footnotes

Sandra Fredman, Discrimination Law (2nd edn, OUP, 2012) 73

Available through Westlaw UK> search> Equality Act 2010> s 10 Religion or belief> Annotation>71 – accessed on 20 June 201

Ibid

David Hoffman, John Rowe QC, Human Rights in the UK (3rd edn, Pearson 2010) 277

Fredman (n 1) 74

Azmi v Kirklees Metropolitan Borough Council [2007] ICR 1154

Lucy Vickers, Religious discrimination in the workplace: An emerging hierarchy? (2010) 12 Ecclesiastical Law Journal 280-303

Fredman (n 1) 190

Eweida v British Airways Plc [2009] ICR 303 (EAT)

Lucy Vickers, Indirect discrimination and individual belief: Eweida v British Airways Plc (2009) 11(2) Ecclesiastical Law Journal 197-203

R (X) v Head Teachers and Governors of Y School [2007] EWHC 298 (Admin)

Hoffman (n 4) 281

Matthew Gibson, The God ‘Dilution’ religion, Discrimination and the Case for Reasonable Accommodation (2013) 72 The Cambridge Law Journal 578-616

Fredman (n 1) 19-21

Equality Act 2010 c.15, s 13, s 19, s 27

Fredman (n 1) 84, 85

Baroness Hale of Richmond, Secular Judges and Christian Law,  (2015) 17(2) Ecclesiastical Law Journal, 170-181

[2014] UKSC 33, [2014] 3 WLR 1

Hale (n 12) 174

[2013] UKSC 73, [2013] 1 WLR 3741

Hale (n 12) 175

Ladele v Islington LBC [2009] EWCA Civ 1357; [2010] 1WLR 955

Hale (n 23) 177

Gibson (n 18)

EHRC, Religion or belief in the Worplace: A Guide for Employers Following Recent Eurpean Court of Human Rights Judgements (2013)

Gwyneth Pitt, Taking Religion Seriously (2013) 42(4) Industrial Law Journal 398-408

Ibid, 405

http://news.bbc.co.uk/1/hi/world/europe/8480161.stm, accessed on 22 June 2015

Loi n° 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.

Eoin Daly, Public funding of religions in French law: the role of the Council of State in the politics of Constitutional Secularism (2014) 3(1) Oxford Journal of Law and Religion, 103-126

Jim Marshall, The Legal Recognition of Personality: full veils and permissible choices (2014) 10(1) International Journal of law in Context, 64-80

SAS v France, Application number 43835 (ECtHR Grand Chamber, 1 July 2014)

Myriam 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, 94-118

Cass Ass Plén 25 June (2014) Recuieil Dalloz, 1386

Henin (n 41)

SAS v France, Application number 43835 (ECtHR Grand Chamber, 1 July 2014)

Ian Leigh, Book Reviews: The Power of Religion in the Public Sphere; A Secular Europe: Law and Religion in the European Constitutional Landscape; Democratic Authority and the Separation of Church and State (2015) 17, Ecclesiastical Law Journal, 96-98