Religious Freedom, Religious Discrimination and the Workplace

Lucy Vickers

• Publisher: Hart Publishing
• Year: 2016
• Print ISBN: 9781849466363
• eBook ISBN: 9781509902866
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto del lavoro e dell'impiego

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.

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 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 others in order to do so. Moreover, discrimination may occur between individuals of different 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 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 (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 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 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...

Table of contents

• Cover
• Dedication
• Title Page
• Acknowledgements
• Contents
• Table of Cases
• Table of Legislation
• 1. Religious Discrimination and Religious Freedom at Work
• 2. Seeking a Definition of Religion and Belief
• 3. Protecting Religion at Work
• 4. Freedom of Religion at Work: The European Dimension
• 5. Protection Against Religion and Belief Discrimination in the UK
• 6. Accommodating Religion and Belief in the Workplace: North American Perspectives
• 7. Conclusion: Religious Freedom at Work
• Index
• Copyright Page