A Test of Faith?

Religious Diversity and Accommodation in the European Workplace

Marie-Claire Foblets, Katayoun Alidadi

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781409445029
• eBook ISBN: 9781317186366
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Issues of religious diversity in the workplace have become very topical and have been raised before domestic courts and the European Court of Human Rights. Examining the controversial and constantly evolving position of religion in the workplace, this collection brings together chapters by legal and social science scholars and provides a wealth of information on legal responses across Europe, Turkey and the United States to conflicts between professional and religious obligations involving employees and employers. The contributors examine how case law from the European Court of Human Rights, domestic experiences and comparative analyses can indicate trends and reveal established and innovative approaches. This multi-perspective volume will be relevant for legal practitioners, researchers, academics and policy-makers interested in human rights law, discrimination law, labour law and the intersection of law and religion.

PART I
European Components of the Religion and Workplace Debate

Chapter 1
Religious Interests in the European Workplace: Different Perspectives

Lucy Vickers

Introduction

The relationship between religion and the workplace raises many complex and contested issues. Not only is the very definition of religion and belief contested, but a range of other tensions also exist, for example between the religious and the secular, and between the role of religion in the public and private sphere. Practical questions which arise at work include the extent to which religious interests such as religious dress should be accommodated in secular workplaces, and the extent to which organizations with a religious ethos should be allowed to require religious adherence from those they employ. The purpose of this chapter is not to provide single answers to these questions or resolution of these conflicts; rather, it is to explore a range of perspectives from which these debates can be viewed. In doing so, further insight into the difficulties involved in determining the scope of the relationship between religion and work should be provided.

The different perspectives from which the issue of religious diversity in the workplace can be viewed and which are explored further in this chapter include a Church–State based perspective, a human rights based perspective, an equality based perspective and a labor relations based perspective.¹ The different perspectives are both complementary and contradictory at times. They can be complementary in that each one adds weight to and strengthens the others’ arguments. Equally, the different perspectives can cut across each other, and can be in tension or conflict with each other. Clearly, some of the tensions and conflicts are incapable of easy resolution, as they reflect different religious or political standpoints. However, while these issues remain to be debated in the theoretical realm, lawyers and human resources professionals need to deal with the cases which come before them in the workplace on a day to day basis. Thus a practical way forward has to be sought which allows for some sort of equilibrium or balance between these competing views of religion in the workplace.

Before considering some of the different perspectives, and possible ways forward, it is worth examining some of the practical problems that have faced European legal systems in dealing with the interaction of religion and the workplace. This chapter includes a particular focus on the position in the UK, but also contains comparative elements. It starts with some examples from case law of issues which have arisen in courts so far, to provide a practical backdrop to the discussion which follows. It then includes a brief discussion of the debates surrounding the definition of religion and belief, as well as an introduction to the main legal framework governing the relationship between law and religion at work, namely the Employment Equality Directive.² The chapter then moves on to examine the different perspectives (Church–State based, human rights based, etc.) and to consider the further light these different perspectives may throw on the interaction of religious interests with the European workplace.

Some examples from the case law

In one of the first religious discrimination employment cases in the UK, a classroom assistant, helping children for whom English was a second language, wanted to wear a face veil (niqab) when she was in the classroom with a male teacher.³ When she refused to remove the veil she was suspended. She claimed that this was direct discrimination (less favorable treatment on grounds of religion), but was unsuccessful in her claim: the Employment Appeal Tribunal (EAT) confirmed that any teacher who covered his or her face at work would be subject to the same treatment. However, the EAT decided that the treatment could potentially amount to indirect discrimination, as the (neutral) requirement to have the face showing put Muslims at a disadvantage compared to others. However, in this case the discrimination was a proportionate way to achieve a legitimate aim, the aim being to enable the children to get the best education, and for this they needed to be able to see the teacher’s face and expressions.⁴

Similarly, requirements to work on Saturdays have been allowed in the UK where necessary for business,⁵ as have requirements to carry out civil partnership registrations, despite religious objections by a registrar.⁶ A similar decision was reached by the Dutch Equal Treatment Commission (ETC; the Dutch equality body which issues non-binding opinions in discrimination cases) in its finding that civil servants cannot refuse to officiate at civil marriages between same-sex couples based on their religious beliefs.⁷ A further Dutch example involves the suspension of a female Muslim teacher for refusing to shake hands on religious grounds. The ETC found this not to be justified and indirectly discriminatory.⁸ However, this viewpoint was not followed by the civil courts and higher administrative courts.⁹

It is interesting to note a certain similarity in the issues which have come before the courts in different Member States. Equally similar in different states is the fact that the cases have not all been straightforward for courts to resolve, and have caused a deal of contention. At times states continue to act inconsistently, with differences in approach between ETC opinions and court rulings in the Netherlands, for example; and in the UK, the accommodation of staff who object to carrying out same-sex partnerships continues to be allowed in practice. A further example of the contentious nature of religious rights at work can be seen in the UK where interventions have been made from Christian leaders, asking for special courts to be set up to hear cases involving religion.¹⁰ A full discussion of these disputes is beyond the scope of this chapter, but they illustrate the ongoing difficulties courts face in dealing with religious diversity in the workplace.

Definitions

Before considering the legal framework and the various perspectives from which the issues can be viewed, there is a preliminary issue which must be mentioned: from the outset, there is uncertainty about what exactly is meant by religion and belief. The Employment Equality Directive uses the term “religion and belief,” and this echoes the European Convention on Human Rights (ECHR) which refers to religion and belief as part of “thought, conscience and religion.” Adding the term “belief” to religion is helpful as it avoids some of the debate elsewhere in the world, such as in the US, about exactly what is a religion.¹¹ The broader term “belief” means that a wider range of beliefs can be included, including atheism and agnosticism. Yet this really just shifts the debate from the boundaries of the meaning of religion to a debate about what beliefs are covered. For example, the UK Employment Appeal Tribunal recently decided that a belief in climate change should be classified as a belief for the purposes of the UK Regulations.¹²

In terms of definition it is again worth considering the fact that it is not only religion and belief which is protected, but also a lack of religion or a lack of belief. This can sometimes create irreconcilable demands between those with religious beliefs and those whose beliefs or lack of them means they wish to have a religion-free public sphere.¹³ It is sometimes argued that the right to religious freedom includes a right to be free from religion, although the scope of such a right is contested. Clearly improper proselytism can infringe a right to be free from religion, but this probably does not mean that atheists have a right never to be troubled by the sight of a religious symbol.

The legal framework

The Employment Equality Directive,¹⁴ with its protection against discrimination on a number of grounds, provides extensive protection for religious interests in the European workplace. Prior to its introduction, protection for religious rights could be found in international labor conventions, the International Covenant on Civil and Political Rights (ICCPR), the European Social Charter and the ECHR, but none of these were directly enforceable in the workplace. The implementation of local laws to comply with the Employment Equality Directive creates more significant protection as the local legislation can be applied by individual employees in Member States.

The Employment Equality Directive protects workers against direct and indirect discrimination on grounds of religion or belief, as well as protecting against harassment and instructions to discriminate.¹⁵ The obvious beneficiaries of this protection are those who might have been denied work or promotion or other benefits at work because the employer objected to their religious beliefs. Such treatment is unlawful as it would amount to direct discrimination, and cannot be justified. Clearly there have to be some exceptions and, as with all equality grounds, there is an exception where being of a particular religion or belief is a genuine occupational requirement. To take an obvious example, refusal to employ a Hindu as a Catholic Chaplain would be justified.

The Employment Equality Directive also protects against indirect discrimination, and it is under this heading that the most common issues which arise at work will be dealt with. For example, requests to wear religious dress to work, requests for time off work for religious observance and the accommodation of refusal of work tasks for religious reasons are all dealt with as (potential) issues of indirect discrimination. This is because requirements not to wear religious dress, to work on Sundays, or to perform particular tasks at work tend to be adopted as “neutral” policies which nonetheless cause particular disadvantage to some religious groups. According to the Employment Equality Directive, such requirements must therefore be imposed for a legitimate aim, and must be proportionate in order to be considered lawful.

There are two main areas of contention that the legal provisions have to deal with: the first is the issue of religious workers in mainstream or “secular” organizations, who wish to have their religious practices accommodated in some way; the other involves the rights of non-religious or “secular” workers in organizations with a religious character (“religious-ethos organizations”).¹⁶

In the first case, questions essentially relate to the extent to which the individual employee is protected by religious discrimination law.¹⁷ Questions which arise include: to what extent can religious individuals expect an organization to accommodate religiously motivated requests? For example, can a religious individual ask for a uniform to be adapted by including long sleeves, or trousers, or by requesting to wear a headscarf? Can an employee ask for time off during work time for prayers? Can an employee expect space as well as time to be made available for prayers? When debating these questions, one has to consider how the religious interests of the individual worker interact with other interests at stake, such as the interests of the employer in running an efficient workplace. Moreover, does the employer have a competing interest in determining the ethos of the organization, so that the employer can remain religiously neutral? Further difficulties can arise if employees refuse to carry out aspects of their jobs for religious reasons, such as refusing to serve alcohol. An additional problem can arise in these cases where two equality grounds are in tension, for example a request to be exempt from providing services to gay clients, where the right of gay and lesbian service users to be given an equal service comes up against a claim from those with religious objections to have those objections respected.^18...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Notes on Contributors
• Acknowledgments
• List of Abbreviations
• Introduction
• PART I: EUROPEAN COMPONENTS OF THE RELIGION AND WORKPLACE DEBATE
• PART II: IDENTITY, NEUTRALITY, SECULARISM: CASE STUDIES AND COMPARATIVE PERSPECTIVES
• Index