Religious Expression in the Workplace and the Contested Role of Law

Andrew Hambler

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317703112
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

The workplace is a key forum in which the issue of religion and its position in the public sphere is under debate. Desires to observe and express religious beliefs in the workplace can introduce conflict between employees and employers. This book addresses the role the law plays in the resolution of these potential conflicts.

The book considers the definition and underlying motives of religious expression, and explores the different ways it may impact the workplace. Andrew Hambler identifies principled responses to workplace religious expression within a liberal state and compares this to the law applying in England and Wales and its interpretation by courts and tribunals. The book determines the extent to which freedom of religious expression for the individual enjoys legal protection in the workplace in England and Wales, and asks whether there is a case for changing the law to strengthen that protection.

The book will be of great use and interest to scholars and students of religion and the law, employment law, and religion and human rights.

1 Introduction

The issue

In March 2010, six bishops and former bishops of the Church of England wrote to the Sunday Telegraph as follows:

We are deeply concerned at the apparent discrimination shown against Christians … In a number of cases, Christian beliefs on marriage, conscience and worship are simply not being upheld. There have been numerous dismissals of practising Christians from employment for reasons that are unacceptable in a civilised country.¹

These comments are reflective of a growing perception that the expression of Christian beliefs, in the workplace and elsewhere, is becoming increasingly difficult, owing to the hostility of others.² An interim report from the longitudinal survey of religious discrimination in Britain 2000–10 also tentatively concluded that discrimination (or at least perceptions of discrimination) against Christians had increased over the period.³ A Parliamentary report in 2012 found evidence that ‘Christians in the UK face problems in living out their faith and these problems have been mostly caused and exacerbated by social, cultural and legal changes over the past decade’.⁴ There is also evidence that some Christians generally agree with this perception. For example, in a ComRes survey, conducted in May 2009 for the Sunday Telegraph, 19 per cent of 496 Christian respondents agreed with the statement ‘I have faced opposition at work because I am a Christian’; five per cent agreed with the statement ‘I have missed out on promotion at work because I am a Christian’; and six per cent agreed with the statement ‘I have been reprimanded or cautioned at work for sharing my faith’.⁵

There is also evidence that members of other religions also face hostility when expressing their religious convictions at work. A report for the All Parliamentary Committee Group on Race and Community (2012–13), for example, considered evidence from Muslim women that the wearing of the headscarf negatively affected their prospects of securing a job at interview and that some felt pressured into removing it entirely.⁶ As another example, in a survey of 662 Sikhs living in Britain, 36 per cent of all respondents reported experiencing discrimination at work.⁷

The perception of Christians and some other faith groups, however, that they face hostility in the workplace is not met with universal sympathy. For example, Terry Sanderson, President of the National Secular Society, adopts a rather different perspective, identifying religious expression, rather than discrimination against the religious, as the core problem:

The never-ending religious demands are now beginning to permeate the workplace. … When the religious agitators realise that they have a new legal weapon at their disposal [discrimination law] … [t]hen will come the demand for prayer rooms and the conflict that they bring in their wake, then special holidays and after that uniform exemptions to be followed by dietary restrictions that will have to be imposed on everyone else. The work place should be a secular space. People should leave their religion at the door because once it’s over the threshold, it will cause mayhem as it does everywhere else.⁸

It is therefore clear that there are different perceptions of freedom of religious expression in the employment sphere. There is the view that Christians, and perhaps members of other religions, face an increasingly hostile climate in the workplace, some of which has been caused by political and legislative change. There is a second view that, facing hostility or not, it is the religious employees who are the primary problem, with their disruptive and divisive desire to express their religious convictions in the workplace – a secular forum in which religion has no place.

There is thus a significant public debate concerning freedom of religious expression in the workplace: some advocate that this should be further constrained by law for the sake of organisational harmony; others advocate that it should be supported to a greater extent than it currently is, given the fundamental importance of religion for many.

Purpose and overview

The purpose of this book is to contribute to this debate with a particular focus on the individual employee. It presents an overall theoretical framework for understanding the issue. This framework is in two parts. The first involves conceptualising religion in terms of how it is held by individuals at work through inner belief, identity, association with others and, most significantly, outward manifestation or expression. It is noted that some forms of expression are likely to be uncontroversial, because they have no real impact on others; others will be potentially controversial because they may have an effect on other actors in the workplace, such as the employer, co-workers or customers. Forms of expression which are potentially controversial or contentious are of most interest in this book as they are most likely to engage the law. They are identified and classified, for analytical purposes, into the following three categories, depending on the effect on the workplace:⁹

• negative manifestation – the desire to ‘opt-out’ of either particular aspects of a job role for reasons of religious conscience (for example, a Muslim shop assistant who requests to be excused from handling alcohol) or more generally to be absent from working on particular days or at particular times because of religious obligations (such as attendance at a church service on Sunday);

• passive manifestation – the desire to display religious convictions visually through dress or personal grooming (such as the wearing of an Islamic headscarf, Christian cross or Sikh turban); and

• active manifestation – the desire to articulate religious convictions to make an impact on others; for example, to seek to make converts to a particular religious faith or to rebuke the perceived ‘sinful’ activities of co-workers (such as involvement in same-sex or extra-marital relationships).

The second part of the overall theoretical framework seeks to identify different principled responses within a liberal society to these forms of religious expression and considers and critiques the possible rationale underlying each. Using academic literature drawn primarily from the disciplines of political philosophy and law, it is proposed that there are six possible models:

(I)	the exclusion model, which offers no support for individual religious expression and instead, to the extent that a liberal political model allows, acts to suppress religious expression;
(II)	support for a preferred historic (‘majority’) religion only where religious expression is actively valued for its cultural value in supporting a national culture or, less actively, supported by a legacy of lawmaking from an earlier age in which the majority religion was awarded legal privileges (not all of which have been repealed);
(III)	laissez-faire, where the decision is taken to leave the issue of religious expression as entirely a contractual matter to be negotiated between employer and employee (and not one of sufficient import that a specific legal framework is warranted);
(IV)	protection for religious expression, but only within ‘islands of exclusivity’ – organisations with a religious character, possibly with a religious purpose, where people with religious convictions can work together and freely express their beliefs without this impacting on those with either no such religious convictions or other convictions;
(V)	protection, under which religious expression is afforded a high value for its benefits either to individuals themselves or society in general; it is thus actively supported in the workplace with laws aimed at promoting religious expression and protecting religious employees from negative treatment by employers or others; and
(VI)	protection for minority religions only, as religious expression is seen as an important element of cultural identity which needs to be supported and encouraged so that individuals from minority ethnic groups can fully participate in the workplace without compromising their group characteristics.

These models are then used as reference points in discussing the law applying in the legal jurisdiction of England and Wales and its interpretation. Features of most of the models can be discerned. For example, special ‘occupational requirement’ exemptions from the Equality Act allow religious organisations a measure of freedom to ‘discriminate’ in favour of recruiting staff from specific religious backgrounds to create (modified) ‘islands of exclusivity’. As another example, employers still enjoy a degree of laissez-faire freedom of action (for example, as a justification for indirect discrimination, in determining what is a ‘legitimate aim’) when deciding how to respond to religious expression at work.

The picture that emerges most strongly, however, is a rather contradictory one, in which the dominant models prove to be at once protection and exclusion, although these imperatives can be discerned in different ways in the legal framework. For example, at a legislative level, the very fact that discrimination law was extended in 2003 to cover religion and belief claims is indicative of the ‘protection’ imperative; yet, at the same time, the way in which aspects of the relevant law are drafted reflects, intentionally or otherwise, an ‘exclusionary’ imperative (this is particularly true of the definition of harassment, under which initiating a religious conversation might create an ‘offensive environment’ and therefore ‘harass’ others).¹⁰ As another example, at a judicial level, some (but by no means all) tribunals have interpreted discrimination law to prevent employers from penalising employees from ‘negatively manifesting’ by refusing to work on Sundays when there are viable alternatives available (see for example, Williams-Drabble v. Pathway Care Solutions Ltd and anor);¹¹ yet, the courts have entirely failed to offer any protection for employees (in non-medical fields) who wish to ‘negatively manifest’ because of conscientious objection to aspects of their jobs, even where the negative manifestation could be easily accommodated at a practical level. For example in Ladele v. Islington Borough Council,¹² a very significant case which will be considered in some detail at intervals in this book, a registrar of marriages was found not to have suffered discrimination when her employer refused to exempt her from civil partnerships work on the grounds of religious conscience, even though in practical terms all parties agreed that her request could have been easily accommodated. The court determined that the employer could justify a policy of insisting that all staff fully supported its equality and diversity goals, including non-discrimination on the grounds of sexual orientation, regardless of any other considerations such as the claims of religious conscience.

It is suggested that the underlying reason for the apparent contradictions is, to a large extent, rooted in the lack of consensus about the nature of religious expression and its importance to religious employees, such that it can be understood in very different ways. For instance, some see religious expression as essentially a private activity which should not be manifested in the workplace; others do not accept that religion can be so easily compartmentalised as it affects all aspects of life. Equally, some see certain religious activities as ‘core’, such as the desire to worship with others, but other forms of expression as ‘non-core’ and less needing of protection. Similarly, some consider religious expression as a matter of free choice voluntarily assumed; others see it as a weighty obligation assumed under ...