Published on Halsbury's Law Exchange on 4 August 2012
The American humourist PJ O’Rourke once said that it was funny how those who wanted to share their religious views with you, never wanted you to share yours with them. The European Court of Human Rights is about to have to share its views with all of us: this week it is hearing four cases on religion and the law. Each will be well known to all British human rights lawyers. The ECtHR’s summary provides:
The applicants, Nadia Eweida, Shirley Chaplin, Lilian Ladele and Gary McFarlane, are British nationals (…)
All four applicants are practising Christians who complain that UK law did not sufficiently protect their rights to freedom of religion and freedom from discrimination at work. Ms Eweida, a British Airways employee, and Ms Chaplin, a geriatrics nurse, complain that their employers placed restrictions on their visibly wearing Christian crosses around their necks while at work. Ms Ladele, a Registrar of Births, Deaths and Marriages, and Mr McFarlane, a Relate counsellor1, complain about their dismissal for refusing to carry out certain of their duties which they considered would condone homosexuality.
Thus the four cases fall into two categories, within the broad heading of religion and employment.
In the first category, the applicants wished to wear religious symbols whilst at work (the symbols cases). In the second category, the applicants did not wish to carry out duties which might have led to an inference that they condoned homosexuality (the refusal cases). The two categories share common issues but are by no means identical.
One might be forgiven for thinking that the symbols cases were a relatively trivial matter. Almost no-one would be offended by someone wearing a cross, and if they were they should be told to do something useful with their time.
The answer, however, is that we are back in the realms of legal principle, and whilst the crosses might well be seen as harmless symbols that merely reflect a mainstream faith, if they are permitted as a legitimate departure from the employer’s otherwise secular uniform policy, someone is bound to turn up next week wanting to wear something offensive and citing religious grounds for doing so.
One possible response is that relatively inoffensive symbols such as crosses should be permitted, but not ones that are blatantly offensive. This is sometimes phrased in the terms of “reasonable accommodation”, by which the courts attempt to judge whether and to what extent employers should have to make allowances for employee’s beliefs.
There are several problems with the court trying to decide what is offensive and what is reasonable. Is it to be judged from the perspective of the victim, the perpetrator or a neutral observer?
Even before reaching that stage, one has to determine what constitutes a “religion” in the first place. Recent disputes over druidry and Scientology show that this is by no means a simple question. One judicial effort in this country was Nicholson v Grainger plc  All ER (D) 59 (Nov)), where the Employment Appeal Tribunal had to decide whether a belief in “man-made climate change” equated to religious belief for the purposes of anti-discrimination provisions. The tribunal ended up with a Delphic four-stage test wholly unsuitable to providing clear guidance to citizens by which they might order their affairs; in other words, a ruling not compatible with the rule of law.
Much the better approach in discrimination cases would be for courts not to decide whether any particular employee has been discriminated on religious grounds as such, but rather on any grounds (religious, gender or whatever) irrelevant to their employment. In Nicholson v Grainger, therefore, the court should simply have been required to ask what the reason was for Mr Nicholson’s treatment by his employer, and then to consider whether that reason was relevant to his employment or was instead arbitrary or otherwise oppressive behaviour by the employer.
Similarly, in the symbol cases, the question should be whether there was anything dubious about the employer’s uniform policy which did not allow for crosses or other jewellery to be worn openly. Ordinarily, employers should be able to set whatever uniform policy they wish, and it should then be for prospective employees to be made aware of the policy before they start.
One point that was made in the symbol cases at an earlier stage was that Christianity does not actually anywhere mandate the wearing of a cross, and it should in any event have been possible for the employees to wear it discretely, under the uniform. That, however, is no answer, since the courts are not in a position to interpret the tenets of any particular faith and so cannot be asked to adjudicate whether or not faith x really does require garment y, or whether garment y is just a social and cultural construct.
It would be a tidy solution to allow employers to set any uniform requirement they wish and leave it at that. The problem is that some religious mandate the wearing of certain clothing, such as the veil, which cannot be hidden in such fashion. Can we really envisage an employer being entitled to refuse to employ anyone who wishes to wear a Muslim headscarf, or a Jewish Kippah?
Accordingly the courts may be required to engage in a degree of palm tree justice, and hold that irrespective of any uniform policy employers should indeed make a ‘reasonable accommodation’, under which they will be permitted to ban clothing and the like on health and safety grounds, but required to allow certain religious symbols and garments if the employee otherwise complies with the uniform policy. This should not impose a burden on the employer to adjust its uniforms; it would be for the employee to wear something in addition if he or she chose to do so. It is a grey area, however, and therefore it will be interesting to see what Strasbourg makes of it.
The refusal cases on the other hand admit of a more straightforward answer. Both employees accepted employment with an organisation with a publicly announced diversity policy, requiring provision of services to the public irrespective of various characteristics including race, gender and sexual orientation. The employees were therefore bound by their contract not to discriminate on those prohibited grounds. If they disagreed, they should have found a different job. Moreover, if they had wanted the same exemptions on secular grounds they would have received the same answer; the diversity policy was not aimed at suppressing religion but rather suppressing discrimination on any ground.
Imagine for a moment that the employees proclaimed that their religion prohibited them dealing with Jews or Muslims, or otherwise being seen as “condoning” them. Or imagine if a judge suddenly decided that his religion dictated that a woman’s evidence was of less importance than that of a man. They would be given a short answer. It will be most surprising if Strasbourg comes to a contrary position.
Meanwhile it will be interesting to see what influence the Strasbourg judgment, if it arrives first, will have on the Supreme Court when it comes to hear the well-known case of Peter and Hazelmary Bull, a couple who refused to allow a same-sex couple to sleep in a double room in their B&B. I suspect the answer will be the same as with the refusal cases above: the Bulls would not have been permitted to discriminate on non-religious grounds, and will therefore find their admittedly indirect discrimination banned on the same grounds. Either way, there will be much food for thought from both the Supreme Court and their colleagues in Strasbourg on a subject which seems rarely out of the headlines in modern Britain.