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Wednesday, 4 May 2011

A cross to bear

Published on Halsbury's Law Exchange here

I have written a number of posts on religion and the law over the past few months on Halsbury’s Law Exchange and elsewhere. On each occasion I have sought to work out principles of equality and freedom for general application. Among other things I have argued that employers should be free to set their own uniform standards, including in relation to religious symbols; and that employees seeking exemption from those – or indeed any of their employment duties – should agree terms beforehand or lump it. Freedom of religion does not provide religious followers with exemptions from the law applicable to everyone else.

Obviously employers ought to be fair in their uniform policies. They should not ban some religious symbols and activities but allow others, unless they have good grounds for doing so. If they run a Christian bookshop, for example, they should be entitled to ban other religious symbols and require that their staff have a pretty sound knowledge of Christianity. Or they can set up a Halal or Kosher sandwich shop and expect staff to produce food accordingly.

All of the above points apply to a story occupying some press attention of late. It seems the dispute has been settled, but the point may well arise again in future and therefore a belated post is still appropriate.

I am referring to the story of the van driver who was told to remove a palm cross from his dashboard. His employer did not want any visible religious symbols on its vehicles.

On the face of it, the employer was entitled to set its own policies on such matters; a policy excluding all religious symbols would be a rational one; and, provided it was applied equally (ie not some religions and not others), then there would or should be no legal grounds to interfere with that policy.

There is, however, another well-established principle of the common law that ought to have been observed, namely the maxim de minimis non curate lex. Or, if we are to discard the Latin, "the law does not concern itself with trifling things".

Did it really offend anyone that the driver had a common symbol on the front of his van? Apparently so, since there was a “complaint”, and indeed if one looks far enough one can probably find someone offended by anything anywhere. That would not necessarily provide grounds for the law to intervene. The better question would be should anyone have been offended? Surely not in this instance (and that is without taking into account what vans in my experience usually have displayed on their dashboards).

It is not as if the driver was asking for special privileges such as days off for religious observance or exemption from regular duties. Nor that any rational customer would be put off by viewing the symbol; it can hardly be compared to a symbol of a fascist organisation or similar.

I am reminded of one of the stories that beloved of the tabloids, namely the banning of Easter and other Christian celebrations by local authorities on the basis that they might offend the non-Christian constituents. Most such stories are apocryphal. Chances are if any are true that the non-Christians would be more offended by the assumption that they would be offended. Again, the test should be objective, not subjective - should anyone be offended. A sense of perspective, or proportion – or even a sense of humour – might not go amiss on such occasions.

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