Religion in the Workplace

Civil Justice Centre 21st October 2016

RELIGION, CULTURE AND THE LAW

RELIGION IN THE WORKPLACE

ROBIN ALLEN QC

www.cloisters.com

Contents Introduction ...... 3

The state should be secular ...... 4 Beliefs are infinitely varied ...... 4 The speed of change is barely tolerable for some ...... 4 The particular onus on jurists to make fine judgments ...... 5

The statistics ...... 5

Religion in the “workplace” ...... 7

The diminishing distinction between home and work ...... 7 The significance of a religious business ethos ...... 8 The significance of religion to clients customers and service users ...... 8

What is justiciable? ...... 9

The width of the protected area of religion and belief ...... 10

Religious practice and belief recognised in specific legislation ...... 13 Progress to useful generic rules ...... 13 The HRA brings fair balance and justification into play...... 16 The European Council intervenes directly in the workplace ...... 16 A contrast ...... 18 Is a veil ban direct or indirect religious discrimination? ...... 25 Specific exceptions ...... 27

How are these laws operating in the workplace now? ...... 28

Dress codes at work ...... 28 Resolving conflicts between religion and sexual orientation ...... 29

The religion of justice ...... 32

Introduction 1. I never could resist a request from Dame Laura Cox when she was head of our chambers at Cloisters, and now that I don’t have to, I find that I don’t want to, because I am truly delighted to have been invited to speak at your conference. It is a great pleasure to be here. I only hope I can say something you may find interesting and perhaps provoking in the best sense.

2. My subject is “Religion in the Workplace”. It is a subject that has developed hugely during my, and your, working lives and which, even as the role of religion in our nation changes, still continues to provide modern lawyers with deep questions about the proper development of our modern diverse state.

3. It’s a tricky subject that can have some very serious consequences. Anyone who doubted that should look at what happened in the United States last year after the US Supreme Court held1 that same-sex couples had a constitutional right to marry in Obergefell v. Hodges.2 Immediately following the ruling, Kim Davis, an Evangelical Christian, who was a County Clerk in Kentucky, achieved world-wide prominence by being imprisoned in contempt proceedings for refusing to register the marriage of same-sex couples.3 She became a front page celebrity and was seen by some as a modern day martyr.

4. The lesson is that many people across the Western world take their religion very seriously at work, so that when changes impinge on their beliefs, real difficulties arise. We have had one or two near martyrs to the cause of a particular concept of marriage here too.

5. Religious and belief organisations are getting used to bringing cases to court and to making a difference as a result. You will recall that just four years ago the National Secular Society succeeded in ending the practice of Bideford Town Council going back to at least 1941 and perhaps to the time of the first Elizabeth of public prayers before Council meetings.4 This year the Christian Institute succeeded at least partially in a challenge to the information-sharing provisions in Part 4 of the Children and Young People (Scotland) Act 2014.5 Although both of these cases concerned litigation outside the normal fora in

1 On the 26th June 2015. 2 Obergefell v. Hodges, 576 U.S. (2015), available at http://www.supremecourt.gov/opinions/14pdf/14- 556_3204.pdf . 3 She was released soon after: http://www.theguardian.com/us-news/2015/sep/08/kentucky-clerk-kim-davis- released-from-jail . 4 See National Secular Society & Anor, R (on the application of) v Bideford Town Council [2012] EWHC 175 (Admin) [2012] HRLR 12, [2012] Eq LR 326, [2012] ACD 56, [2012] 2 All ER 1175, [2012] BLGR 211. 5 The Christian Institute & Ors v The Lord Advocate (Scotland) [2016] UKSC 51, 2016 S.L.T. 805; 2016 S.C.L.R. 448; 2016 G.W.D. 22-401; Times, September 26, 2016. The argument was that as written they were incompatible with the rights of children, young people and their parents under Article 8 of the ECHR.

which work cases are heard, both will have affected the way in which workers operated.

6. How are we to deal with these kinds of issues, where religion and belief issues have become so important?

7. I believe that there are four over-arching aspects to the right approach to this kind of change that we need to take into account.

The state should be secular 8. The first is obvious but critical the modern democratic state in the United Kingdom should be secular and the courts are no exception.6 Recognition of this was made abundantly clear recently by section 2 of the Marriage (Same Sex Couples) Act 2013, as its title explains: “Marriage according to religious rites: no compulsion to solemnize.”

Beliefs are infinitely varied 9. Secondly we must recognise that our modern society is being asked to take ever more seriously the variety of religion and beliefs, and the moral issues to which they give rise in our diverse society. As jurists we must do likewise.

The speed of change is barely tolerable for some 10. Thirdly, we need to recognise that change in relation to some areas in which religion and belief issues arise, is currently so fast that for some it has become painful and, even if only temporarily, almost intolerable. How we as lawyers react to that fact, and how law-makers should react to it, are different questions with different answers, but they are both very important. Lord Neuberger, then Master of the Rolls, touched on this at the end of his judgment in Islington London Borough Council v Ladele (Liberty intervening),7 where he considered how other Councils had not required all current Registrars of Births Deaths and Marriages to also register civil partnerships.

11. Ladele was part of a quartet of cases that were considered by the Strasbourg Court under the title Eweida v United Kingdom.8 There are two other cases worth noting because of their discussion of issues of tolerance and fine judgment. In McFarlane v. Relate the employee had changed his religious views and expected his employer to create a new job for him that accommodate that change. He failed, and I believe rightly so because he

6 I recognise of course that this is in constitutional terms only a partial proposition so far as England is concerned where the Queen is Head of the Church of England, and that in the House of Lords the Bishops of the Church of England are specifically represented. I exclude also issues of canon law as made by Synod of the Church of England. 7 [2009] EWCA Civ 1357, [2010] I.C.R. 532. 8 Case 48420/10, [2013] I.R.L.R. 231; (2013) 57 E.H.R.R. 8; 34 B.H.R.C. 519; [2013] Eq. L.R. 264; (2013) 163 N.L.J. 70; Times, February 4, 2013

expected too much. In Eweida v. British Airways Ms Ewieda sought an amendment to the airline’s no jewellery rule to allow her to wear a small cross. In fact after some consultation and consideration the airline did make that change. However the Strasbourg court ruled that the domestic law which had permitted the airline to hold to its initial rule pending the change was contrary to Article 9. I have always felt that this ruling allowed to little to the way in which the domestic law on indirect discrimination worked. Surely it is justifiable to take time to decide on a changer to an employer’s universal rule which was not itself directly discriminatory while it considers whether and how to change?

The particular onus on jurists to make fine judgments 12. Fourthly, as this attention has developed and we are called to grapple with the conflicts between the different identities and needs of persons as they interact together, we must proceed with great care. It is our role through advocacy and judgment to seek to resolve conflict not to add to it. These conflicts may be worth in money terms very little; but in personal terms they may mean everything. They tend to engage with the very heart of human dignity. These conflicts matter whether between religion and sexuality or between religion and other protected characteristics9 such as gender and disability and religious opinions.

13. This last point engages closely with the third. In some circumstances there will be room for acts of toleration, in others the clash of rights will involve a choice between protecting one party’s beliefs at the expense of another’s personal autonomy or dignity. It is in the latter case the courts are most likely called on to make fine judgments. However the possibility of forbearance, or acts or decisions that promote toleration will never be far away.

The statistics 14. First let me put these points in some sort of social context to aid our discussion today.

15. The BREXIT vote may be seen as a debate primarily about immigration, but scratch the surface and it will be found that there is also a religious dimension to it. Immigration is changing how we as a nation look at ourselves, and with it comes a challenge to our national religious identities. If we are no longer a Christian nation are we to become a nation with a new religious majority, or of no particular belief system, or of multiple belief identities?

16. What are the facts? In summary we live in country

9 See section 4 of the Equality Act 2010.

a. which is just under 60% Christian by self – identification,

b. where at least a quarter of the population has no religion (and that figure seems to be increasing), and

c. where the effect of immigration has been to double the percentage of the population that identifies as Muslim.10

17. One recent survey said that more Muslims attend the mosque than members of the Church of England attend church on a weekly basis.11 That survey does not differentiate between the different branches of Islam so is not necessarily comparing like with like. Another report has suggested that English church membership is static with major declines in Northern Ireland and Scotland. 12

18. These patterns can be seen in the latest update13 from the ONS dated the 18th June 2015 which gives the following breakdown of the religious mix of the England and Wales, by reference to place of birth14 -

19. Combining these figures we get the following overall picture -

10 These are usually said to consist of the Sunni, Shiite, Ahmadiyya, Druze and Ismaili. The Office of National Statistics (ONS) does not distinguish between the different branches of Islam in the census. 11 See http://www.christiantoday.com/article/new.study.finds.mosque.goers.to.double.church.attendance/3858.htm 12 See http://faithsurvey.co.uk/download/csintro.pdf 13 See http://www.ons.gov.uk/peoplepopulationandcommunity/culturalidentity/ethnicity/articles/2011censusanalysiset hnicityandreligionofthenonukbornpopulationinenglandandwales/2015-06-18#religion 14 Op. cit. supra at [6].

Religion Number in 1000s % No religion 14,097 25.1 Christian 33,243 59.3 Buddhist 247 0.4 Hindu 817 1.5 Jewish 264 0.5 Muslim 2,706 4.8 Sikh 423 0.8 Other religion 240 0.4 Religion not stated 4,038 7.2

20. We must remember that this is only the sketchiest of outlines though. I repeat that it is not possible to catalogue the different belief systems at work in the United Kingdom, let alone all the secular beliefs or the different religious that lie within these broad categories. This is important because disputes within groups of persons who may similarly identify themselves for the ONS are a fact of everyday life.15

21. How is this all playing out in the workplace?

Religion in the “workplace” 22. This is therefore very rich territory to explore in a presentation about religion and the law, so I am glad that my title limits the range of our exploration to the “workplace”. It is not though as limiting as you might think.

The diminishing distinction between home and work 23. Some people shut the door on their home every morning before commuting to work, and then, at the end of the “working” day, their regular settled lives go into reverse. That is not my life,16 and I suspect that neither yours nor the lives of many of your children or friends. We joined a profession that, as you all know, allows for little differentiation between work and home.

24. For all that, some citizens do try to maintain a belief that home and work are (or at least should be) two quite different places. It won’t last. The effect of new technology has now almost totally eroded the distinction between home and work. We get emails about picking up the children or the weekend plans at the water-cooler or while the jury are out. We can see our papers for Monday morning’s court hearing on a weekend evening and we are probably expected to do so though we may not be separately paid for that pre-reading!

15 See Shergill v Khaira [2014] UKSC 33 [2015] A.C. 359 for a discussion of the extent to which doctrine is justiciable; see also R (E) v Governing Body of JFS (United Synagogue intervening) [2010] 2 AC 728. 16 Having been brought up in a vicarage, I didn’t really understand that there was a difference between a home and a workplace until somewhere in my mid-20s when I got out a bit and understood more about the working lives of others!

25. Human rights law has adapted to this of course. It is some time since the Strasbourg Court ruled that the Article 8 right to a private life had direct relevance in the work place in Niemietz,17 and that approach continues to be cited in Strasbourg and in our own jurisprudence.18

26. So whether or not your religion and beliefs allow you to compartmentalise your approach to what you can or cannot do between home and work, the distinction between the two is collapsing so fast as to make such a distinction barely relevant to our enquiry.

The significance of a religious business ethos 27. Secondly it is not just through the needs or hopes of workers that religion becomes relevant in the work place. It is also important for many businesses and other undertakings that they are able to have a particular ethos. That ethos may motivate them to do the work that they do or it may be simply part of the way in which they wish to distinguish their brand in the marketplace. Two cases I have been recently involved in exemplify the former: Hall v Bull19 which concerned a Christian hotel in Cornwall, and Lee v. Ashers Baking Co. Ltd,20 which concerns a bakery business run by a Christian family.

28. Some undertaking exercise state power for instance as schools, others act as specifically religious organisations rather than commercial undertakings. Here special rules may apply.

29. What about purely commercial enterprises that seek to work with a particular religious or belief ethos? There is of course no reason why a business should not seek to promote a particular religious ethos. The question that arises is to what extent they can require their customers and/or their employees to share that ethos. Again we shall see that this is specifically limited.

The significance of religion to clients customers and service users 30. Finally we need to recognise that even where there are no issues of religion which divide worker from worker or worker from employer, religion can still come into the workplace because of the tasks that the undertaking must face.

31. In these situations both employer and employee are called on to grapple with difficult and sensitive issues. In reviewing the developing case law for a talk I

17 One of the first cases in which this was recognised albeit through the use of a double negative was Niemietz v. Germany (1993) 16 EHRR 97. At [31] the court said “…to interpret the words ‘private life’ and ‘home’ as excluding certain professional or business activities or premises would not be consonant with the essential object and purpose of Article 8.. 18 See Aleksanyan v Russia (46468/06) (2011) 52 E.H.R.R. 18 at [212]; Regina (Countryside Alliance and others) v Attorney General and another [2007] UKHL 52, [2008] 1 A.C. 719, at [15] and [93]. 19 [2013] UKSC 73; [2013] 1 W.L.R. 3741 [2014] H.R.L.R. 4 20 The judgment of Presiding District Judge Brownlie can be found at http://www.bailii.org/cgi- bin/format.cgi?doc=/ew/cases/Misc/2015/NICty_2.html&query=(Lee)+AND+(v)+AND+(Ashers)+AND+(Baki ng)+AND+(Co)+AND+(Ltd)

gave on this subject at the beginning of this year I came across a fascinating example of this issue.

32. In X Local Authority v. C, M, A (a child) by her Guardian Miss Williams,21 HHJ Gareth Jones sitting in the Family Court in Wrexham provided one of the most careful and thoughtful judgments I have seen on the issues arising from religious issues.

33. The case concerned a challenge by Muslim parents to the decision by a local authority that had fostered their 6 ½ year old son that he should not be circumcised. The expert evidence before the court was to the effect that –

The rite of circumcision in Islam is not part of the aqeedah (the beliefs that a person must accept in order to be a Muslim). This means that it is possible for a male to be a Muslim without being circumcised. However, it is a rite that translated into English is an act which is ‘highly recommended’. This means that it is not compulsory but almost so and considered obligatory unless there is a very good reason for it not to be done. It is practices (sic) in all Muslim societies without exception. Not to have a boy circumcised would be seen as a social disgrace and a disregard of the child's rights.

34. Notwithstanding this evidence the judge was impressed by the needs of the child that had to be addressed under the Children Act 1989 that had led to the fostering. He held that as the child was otherwise being brought up as a Muslim and as this was an irreversible act the local authority were justified in the stance that they took. In short fine judgment by the social workers led to fine judgment in court.

What is justiciable? 35. The next preliminary issue we need to be clear about is what is justiciable? The law has been slowly working this problem out; sometimes taking decisions which are highly context specific and sometimes trying to set general rules. However there is a clear demarcation between what is truly justiciable and what has to be left to one side as being an area where judges and law-makers cannot really go.

36. The first part of Article 9(1) of the European Convention on Human Rights (ECHR) reminds us that there is an absolute right at its core -

Everyone has the right to freedom of thought, conscience and religion…

21 See X Local Authority v. C, M, A (a child) by her Guardian Miss Williams Case No: WX12Z00196, judgment of HHJ Gareth Jones, 2015 WL 5202287.

37. None of us – and I hope no current politician – would seek to ban belief by itself. One lesson of the 20th century ought to be that “freedom of thought, conscience and religion” is absolute so that it is not possible to treat as justiciable which thoughts or beliefs we can be permitted to hold.

38. This is the forum internum22, however the ECHR sensibly recognises that thoughts beget actions, and Articles 9(1) and (2) of the ECHR continues by reminding us of this, noting that –

1...this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

39. It is this external aspect of holding a relevant belief that is justiciable and is therefore the most interesting for jurists. Much of the recent discussion around this has taken place in the context of conflict of rights. Because of this, the next key questions are:

What are the relevant religious beliefs that jurists must take into account? Is everything relevant and if not how can we determine what is and what is not?

40. That said the courts are able to define where necessary what the attributes of a particular religious group are as the Supreme Court did recently in Shergill v Khaira.23 Though these cases do not of course determine whether these are permissible beliefs.

The width of the protected area of religion and belief 41. The concept in Article 9 ECHR is wide. It was derived from Article 18 of the Universal Declaration of Human Rights (UDHR) which states –

“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his

22 See e.g. the judgment of the Court of Appeal in Bull and Bull v. Hall and Preddy l [2012] 1 W.L.R. 2514 at [57]. 23 See fn 15 above.

religion or belief in teaching, practice, worship and observance.”

42. The origin of this wording lay in the negotiations leading up to the agreement on Article 18 when a compromise was reached between those countries that wished to protect the right to follow a religion explicitly and those countries that did not accept the validity of any religion and therefore wished to protect the right to have no belief or religion.24

43. So we need to recognise that when we speak of “religion” we are in fact speaking of “religion or belief” or more fully “thought, conscience and religion”. The concept of “religion” is nevertheless still something that – to most in this country - connotes a particular class of belief/thought/conscience.

44. In this paper I shall refer to religious belief but my use of that phrase must be read as also including no belief as well as particular religious beliefs.25 In fact the range of beliefs that fall within these protections include those which are barely “religious” in any sense of the word that would have been understood by Cardinal Newman or any other 19th century divine.

45. There can be no doubt that all the main world religions are within scope; so are the Church of Scientology and even the Moon Sect; in fact the European Court of Human Rights (ECtHR) has never established a closed list of religions or beliefs to which Article 9 applies.

46. In Kokkinakis v. Greece the ECtHR said that26 –

“As enshrined in Article 9, freedom of thought conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, sceptics and the unconcerned.”

47. Article 9 has been followed and developed in the later provisions dealing with belief discrimination, notably Article 18 of the International Covenant on Civil and Political Rights in 1966. In 1993 the Human Rights Committee in commenting on Article 18 said27 –

24 See Evans M. D., Religious Liberty and International Law in Europe, Cambridge University Press, 1997 at p. 290. 25 Where it is necessary to make a distinction between belief/no belief or between belief ideas which might be called religious and those which are not so described ordinarily I shall try to be explicit 26 (1994) 17 E.H.R.R. 397, at [31]. 27 General Comment No. 22(48) (Art. 18) adopted on July 20, 1993, CCPR/C/21/Rev.1/Add.4, September 27, 1993, p. 1.

“Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The term belief and religion are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions.”

48. So are there any limiting factors? The Strasbourg jurisprudence has been followed not essentially changed28 from the proposition in Campbell and Cosans v. United Kingdom that –

“The term ‘beliefs’ … denotes a certain level of cogency seriousness cohesion and importance.”

49. In that phrase lies the heart of this subject because for the individual who holds such beliefs their seriousness and importance will have implications. It goes quite wide though.

50. Late last year in General Municipal and Boilermakers Union v. Henderson29 the EAT had to consider a case brought by a former Regional Organiser of the GMB Union who had been dismissed. A central part of his complaint was that the Union had considered him to be too left wing and this was a reason for the termination of his employment. One incident involved his arguing that Labour MPs should not cross picket lines and this seems to have enraged the general secretary.

51. In the end the appeal was allowed because of the way the ET had reasoned to its conclusion that there had been belief discrimination. However, in an important passage Simler J. emphasised that all kinds of beliefs – of a seriousness to qualify for protection30 - were equally protected. There was no hierarchy as between different kinds of beliefs or as between religious and other beliefs.

52. She said31 –

28 See Harron v Chief Constable of Dorset Employment Appeal [2016] I.R.L.R. 481 at [26]. 29 [2015] IRLR 451 30 This is a reference to the approach discussed in Grainger plc v. Nicholson [2010] IRLR 4, where it was held that the case law relating to the European Convention on Human Rights is directly material to determining whether a belief is covered by domestic anti-discrimination law, so that (i) the belief must be genuinely held; (ii) it must be a belief and not an opinion or viewpoint based on the present state of information available; (iii) it must be a belief as to a weighty and substantial aspect of human life and behaviour; (iv) it must attain a certain level of cogency, seriousness, cohesion and importance; and (v) it must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others. 31 See op. cit. at [62].

First, to the extent that [counsel for the Union] appeared in the course of argument to suggest that less protection for a philosophical as opposed to a religious belief is to be accorded by the legislation, that proposition is not accepted. The law does not accord special protection for one category of belief and less protection for another. All qualifying beliefs are equally protected. Philosophical beliefs may be just as fundamental or integral to a person's individuality and daily life as are religious beliefs.

Religious practice and belief recognised in specific legislation 53. As Article 9(1) ECHR reminds us if we accept that someone has a significant religious affiliation (or claims relevant beliefs) we are almost always implying that she or he lives by some personal moral code.

54. Any investigation of this subject has to be based on a recognition that for many what they do and how they respond in any situation is – for them - not an option but an imperative. This is the cause of litigation about conflicts of rights. The fact that there is such a moral imperative has implications for policy and good justice.

55. Of course those imperatives are about as diverse as it is possible to imagine. This has posed real problems for law making and for the development of good jurisprudence to address it. One way to approach this has been on the basis of special legislative provision that deals with particular problems, for instance the current provisions that enable a shop-worker or a betting worker to opt out of Sunday work32 which derive from statutory provisions in the Sunday Trading Act 1994 and the Shops Act 1950. Another example of the specific approach relates to Sikhs who were permitted from 1989 to avoid wearing helmets (which obviously interfered with wearing turbans) on construction sites.33

Progress to useful generic rules 56. Such a case by case legislative approach is however time-consuming and reactive. It necessarily omits to deal with new problems until they have become seriously pressing. It also does not deal with the problems caused when strong moral imperatives clash with other rights. Employers and employees, judges and legal advisors, and regulators34operating in the world

32 See Part IV of the Employment Rights Act 1996. 33 Employment Act 1989 ss.11 and; compare Singh v. British Rail Engineering Ltd [1986] I.C.R. 22. The Commission rejected a complaint that British motorcycling laws which did not allow a Sikh to wear a turban were contrary to Art. 9: X v. United Kingdom, 7992/77, (Dec.) July 12, 1978, 14 D.R. 234. 34 I was made very aware of this by the Chairman of the Disability Rights Commission – Sir Bert Massie – explaining to me in the early 2000s how that Commission was confronting Muslim taxi – drivers who were rejecting blind passengers because they claimed it was contrary to Islam to take guide dogs in their cars. I understand that the Qur’an expresses views about the proper role of dogs. This problem was resolved by his

of work, need easy to apply generic rules. There has been some recognition of this need but the extent to which they are fully or appropriately formulated is still moot. Yet there has been progress.

57. In 1977, shortly after I was called to the Bar, despite a powerful minority judgment from Scarman LJ, as he then was, a Muslim teacher was held by the Court of Appeal to be in breach of contract if he were to leave work 45 minutes early in order to go to the mosque on a Friday to fulfil his desire to practice his religion in concert with others.35

58. I remember reading the judgment at the time and thinking this was not going to be the last word, but his case fared no better in Strasbourg. Thus in 1981, the European Commission of Human Rights held that the decision of his state employers – the Inner London Education Authority - not to release him had given “due consideration” to his right under Article 9(1), taking into account the extent of the religious obligation and the measures of accommodation offered by the employer.

59. In rather mealy mouthed decision it held that it was not conclusively established that he had a binding obligation to attend the mosque and the education authority had allowed him to be absent when the consequences for his school were not so great.36 It was easier then than now to ignore the religious needs of Muslims in London.

60. However the interface between religion and work in Northern Ireland was different. The troubles were forcing a reluctant still dominant Protestant polity to accept the need for yet more change.37

61. Some progress was being made in Norther Ireland, through the Fair Employment Acts (1976 and 1989) which enacted a domestic prohibition on discrimination on grounds of religion or belief.38 A Fair Employment Commission was set up and statistics monitoring the extent and location of disadvantage were being gathered. This legislation and litigation under it provided an essential context for the later development of the peace process and the legislation implementing the Good Friday Agreement.

62. Of course at that time in Northern Ireland there was only a tiny minority of persons who were not nominally Christian. So the debate over religious rights and freedom from discrimination was largely on an interdenominational basis

securing a Fatwa that explained that a guide dog had a special role; it is now covered by legislation covering taxis so that they may only refuse to carry dogs when there is a specific certified health based exception. 35 Ahmad v. Inner London Education Authority [1977] I.C.R. 490 36 X v. UK 8160/78, (Dec.) March 12, 1981, 22 D.R. 27. 37 It was only just short of 150 years since the Roman Catholic Relief Act 1829 had been passed. 38 The Fair Employment Acts have now been consolidated and replaced by the Fair Employment and Treatment (Northern Ireland) Order 1998, S.I. 1998 No. 3162 (N.I. 21).

within a Christian framework. The needs and concerns of Muslims, humanists and non – believers were not then in focus.

63. That can no longer be said to be the case. Indeed the recent litigation in the Gay Cake case39 has pointed up a new dimension in which the Protestant and Roman Catholic churches have made common cause against the development of rights for the LGBT community. The organised and funded defence of old Christian orthodoxies is a new development which I shall discuss shortly below.

64. The protection from religious discrimination found in the Fair Employment and Treatment (Northern Ireland) Order 1998 was specifically disapplied to discrimination in relation to teachers.40

65. Despite that development no steps to generic rules in Great Britain took place. The need for them became ever more pressing, as the facts of O'Neill v. Governors of St Thomas More Roman Catholic Voluntarily Aided Upper School and Another41 showed.

66. This case concerned a Roman Catholic School which dismissed an unmarried teacher who was pregnant by a priest. The school was however found to have broken the Sex Discrimination Act 1975 and had to pay her compensation.

67. Unsurprisingly the school considered that her position as a teacher of religious education was untenable. One does not need to be sympathetic to Catholic doctrine on sex before marriage or the celibacy of the priesthood42 to be sympathetic to the school’s dilemma and concern about the decision that held that this was unlawful sex discrimination against the woman.

68. I emphasise that this was a discrimination case since because a different result might have occurred had it been an unfair dismissal case. Compared to Northern Ireland a more flexible code was then applied in Great Britain enabling religious schools to give preference to teachers whose religious opinions were in accordance with the tenets of the religious denomination specified in relation to the school in question and to take into account conduct incompatible with those tenets in dismissal decisions.43

39 Lee v. Ashers Baking Co. Ltd. The judgment of Presiding District Judge Brownlie can be found at http://www.bailii.org/cgi- bin/format.cgi?doc=/ew/cases/Misc/2015/NICty_2.html&query=(Lee)+AND+(v)+AND+(Ashers)+AND+(Baki ng)+AND+(Co)+AND+(Ltd) ; judgment of the Northern Ireland Court of Appeal is awaited. 40 See Art. 171. 41 [1997] I.C.R. 33. 42 As I am not! 43 See s.60 of the School Standards and Framework Act 1998. Contrast the position under s.59 in relation to non-religious schools.

69. The case was decided only a year before the Human Rights Act 1998 was passed and at a point when the discourse on what added value that Act would provide was intensifying. It highlighted the coming tension between the expected development of religious rights at work and those connected with other equality rights.44

The HRA brings fair balance and justification into play 70. It was however the bringing into force of the Human Rights Act 1998 (HRA) in 2000 that changed everything for religious rights. Article 9 ECHR was a scheduled right which had direct effect on public authorities45 and which had to be taken into account in the interpretation and application of all legislation.46 Of course it also brought the general and parasitic Article 14 right to non-discrimination.

71. These provisions had their own developed jurisprudence which the HRA imported into domestic thinking based on the concepts of proportionality or fair balance, and justification, as generic tools to resolve clashes of rights.

72. Nonetheless in response to a concern expressed in Parliament on behalf of religious groups that thought they would suffer less freedoms under the new regime, the Act had a specific religion provision in section 13 asserting that the Article 9 right had “importance”.

73. The significance of this provision was the subject of wide discussion at the time. After all it was human rights orthodoxy that there was no hierarchy between rights so why was this Article 9 singled out as having “importance”; did it have a superior position after section 13? Most thought not, but the definitive answer “No!”, was not provided until 2014 by Lord Dyson MR.47

The European Council intervenes directly in the workplace 74. In 2000 the European Council passed the Employment Equality Directive48 which prohibited discrimination on grounds of religion and belief specifically in the field of employment and occupation. This was first transposed by statutory instrument, and now, in Great Britain, by the Equality Act 2010 and

44 My wife, Gay Moon and I, wrote on several occasions about this problem around this time; see for instance, Allen R. and Moon G., Substantive rights and equal treatment in respect of religion and belief: towards a better understanding of the rights, and their implications, (2000) E.H.R.L.R. 580. This article is now perhaps of historic interest but it contains a review of the development to date of publication and also suggest the necessary changes that will have to be made. 45 Section 6 of the Human Rights Act 1998. 46 Section 3 of the Human Rights Act 1998. 47 See Regina (Core Issues Trust) v Transport for London (Secretary of State for Culture, Media and Sport and Minister for Women and Equalities intervening) [2014] EWCA Civ 34. [2014] P.T.S.R. 785 at [94]. 48 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation

in Northern Ireland, by the Employment Equality (Religion or Belief) Regulations 2003.49

75. It made it unlawful to discriminate directly or indirectly: see Articles 2(1) and (2). In the latter case only it permitted prima facie discrimination to be justified. It also prohibited religious harassment.50 It contained a general positive action provision51 and it provided for certain types of qualification to be imposed as a condition for employment, in particular in relation to certain types of organisation based on religion or belief.

76. Thus Article 4 provides –

Article 4 Occupational requirements

1. Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.

2. Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person's religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person's religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation's ethos. This difference of treatment shall be implemented taking account of Member States' constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground.

Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation's

49 SI 2003 No. 1660. 50 Article 2. 51 Article 7.

ethos.

77. This provision is important because it was the first step in seeking to put into black letter law the point at which there might be a clash between an employer’s ethos and that of the employee. That is not to say it is easy to apply and there is much debate about the extent to which the final part of this Article actively controls what can be done under the former sub-paragraphs by a religious organisation.

A contrast 78. Overall it is worth noting how the Directive 2000/78 involved a significant change from the approach taken by the Strasbourg Court. Under the HRA there is scope for a discussion about the extent to which religious difference can be accommodated. Your President Baroness Hale has discussed this in various talks52 as well as applying it in important judgments dependent on the HRA, and it is an issue which has been much discussed in Canadian law and to some extent in Northern Ireland.53 This is less true in the context of the workplace.

79. Advocate – General Sharpston explained this contrast in Case C‑188/15 Asma Bougnaoui Association de défense des droits de l’homme (ADDH) v Micropole SA. 54 In that case she compared the Article 9 jurisprudence noting it was concerned with the development of a flexible approach to the occasions on which there was a permissible restriction of a right while Directive 2000/78 contained a more specific prohibition of discrimination.

80. The case itself concerns the question whether it was unlawful to dismiss a practising Muslim woman on the ground that she refused to comply with an instruction from her employer (a private-sector undertaking) not to wear a veil or headscarf when in contact with the customers of the business?

81. In her Opinion she discussed the relationship between the approach that the HRA required by application of Article 9 and the approach that Directive 2000/78 imposed, in a long passage. It is however worth setting out in full because of the depth of the analysis she brought to it –

52 Se for instance her Annual Human Rights Lecture for the Law Society of Ireland, Freedom of Religion and Belief, given on the 13th June 201, see https://www.supremecourt.uk/docs/speech-140613.pdf 53 See Canada in Ontario Human Rights Commission v. Brockie [2002] 22 DLR (4th) 174 and the discussion of that case by Weatherup J. in Christian Institute & Ors, Re Judicial Review [2007] NIQB 66 (11 September 2007) at [86] – [88]. See also 54 See her Opinion delivered on 13 July 2016 at http://curia.europa.eu/juris/document/document.jsf?text=veil&docid=181584&pageIndex=0&doclang=EN&mo de=req&dir=&occ=first&part=1&cid=614778#Footref85

The case-law of the Strasbourg Court

45. The Strasbourg Court has ruled that freedom of thought, conscience and religion, as enshrined by Article 9 of the ECHR, represents one of the ‘foundations of a democratic society’ within the meaning of the ECHR (37) and that religious freedom implies, inter alia, freedom to manifest one’s religion, alone and in private, or in community with others, and in public. (38) It has held there to be an interference with that right where the measure at issue consists in a prohibition on wearing an Islamic headscarf. (39)

46. Of primary importance in its case-law that is relevant to this Opinion are (i) the derogation to the general right to freedom of religion laid down in Article 9(2) of the ECHR and (ii) Article 14 of the ECHR, which prohibits discrimination on a number of grounds, including religion.

47. Much of that case-law has concerned the application of national rules concerning the wearing of Islamic apparel. In such cases, having established that there has been an interference with the general right laid down in Article 9(1), the Strasbourg Court will go on to consider whether the measure was ‘necessary in a democratic society’ for the purposes of Article 9(2). In so doing, it will determine whether the measures taken at national level were justified in principle, that is to say, whether the reasons adduced to justify them appear ‘relevant and sufficient’ and are proportionate to the legitimate aim pursued. In order to rule on the last point, it must weigh the protection of the rights and liberties of others against the applicant’s alleged conduct. (40) Since, for the reasons I shall outline in point 81 below, I do not intend to explore measures adopted by the State in any detail in this Opinion, I shall record the Strasbourg Court’s case-law in this area only briefly. It is, however, worth outlining some of the cases in which that court has found the test of what is ‘proportionate to the legitimate aim pursued’ to be satisfied.

48. Thus, the Strasbourg Court has held, inter alia:

– that a ban on wearing an Islamic headscarf while teaching imposed on a teacher of children ‘of tender age’ in the State education sector was justified in principle and proportionate to the stated aim of protecting the rights and freedoms of others, public order and public safety; it was accordingly ‘necessary in a democratic society’; (41)

– that similar principles applied to a ban on head coverings (in this case an Islamic headscarf) imposed on an associate university professor who was a public servant (42) and to a similar ban imposed on a teacher of religious affairs in a public-sector secondary school; (43)

– that a ban on wearing religious apparel (in this case an Islamic

19 headscarf) imposed on a social worker employed in the psychiatric services unit of a public-sector hospital similarly did not contravene Article 9 of the ECHR .(44)

49. By the last of these judgments, the Strasbourg Court ruled for the first time in relation to a ban imposed on public-sector employees outwith the education field. It found in that context that there was a link between the neutrality of the public hospital service and the attitude of its servants, requiring that patients should not be in any doubt as to that impartiality. The Contracting State had not exceeded its margin of appreciation under Article 9(2) of the ECHR. (45)

50. In a different context, that court has held that the protection of the health and safety of nurses and patients in a public-sector hospital constituted a legitimate objective. Assessing the requirement for protection of that kind in a hospital ward was an area where the domestic authorities must be allowed a wide margin of appreciation. A restriction on the wearing of a (Christian) cross and chain that was ‘both visible and accessible’ imposed on a nurse working on a geriatric ward in a psychiatric hospital was not disproportionate and was accordingly necessary in a democratic society. (46)

51. By contrast, in the context of the blanket ban on the wearing in public places of apparel designed to conceal the face, imposed by French legislation, the Strasbourg Court held, when considering the question of necessity in relation to public safety within the meaning of, inter alia, Article 9 of the ECHR that such a ban could be regarded as proportionate as regards the legitimate aim of public safety only where there was a general threat to that aim. (47)

52. In the sphere of private-sector employment, there is currently only one judgment of the Strasbourg Court that is directly relevant in the context of the wearing of religious apparel, namely Eweida and Others v. The United Kingdom. (48) The question before that court in the case of Ms Eweida concerned the open wearing of a cross, described as ‘discreet’, in breach (at the time) of her conditions of employment, which sought to project a certain corporate image. The Strasbourg Court held that that restriction constituted an interference with her rights under Article 9(1) of the ECHR. (49) In determining whether the measure in question was justified in principle and proportionate, a fair balance has to be struck between the competing interests of the individual and of the community as a whole, subject in any event to the margin of appreciation enjoyed by the State. (50) The employer’s wish to project its corporate image was a legitimate one but it required to be balanced against Ms Eweida’s desire to manifest her religious belief. Since her cross was discreet, it could not have detracted from her professional appearance. Her

20 employer had previously authorised the wearing of other items of religious apparel such as turbans and hijabs by other members of its workforce and the company had subsequently amended its dress code to allow for the visible wearing of religious symbolic jewellery. There being no evidence of any real encroachment on the interests of others, the domestic authorities – in this case the national courts which had rejected Ms Eweida’s applications – had failed to protect her right to manifest her religion, in breach of the positive obligation under Article 9 of the ECHR. (51)

53. As regards the function of Islamic apparel and the role it plays in the lives of the women wearing it, I would pause to note what appears to be a shift in the Strasbourg Court’s approach as between its earlier case-law and its more recent judgments.(52) In Dahlab v. Switzerland,(53) for example, it observed that ‘the wearing of a headscarf might have some kind of proselytising effect, seeing that it appears to be imposed on women by a precept which is laid down in the Koran and which … is hard to square with the principle of gender equality. It therefore appears difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination that all teachers in a democratic society must convey to their pupils’. (54)

54. By contrast, in its judgment in S.A.S v. France,(55) the Court rejected arguments put forward by the French Government regarding gender equality in the following terms:

‘119. … The Court takes the view, however, that a State Party cannot invoke gender equality in order to ban a practice that is defended by women – such as the applicant – in the context of the exercise of the rights enshrined in [the second paragraphs of Articles 8 and 9 of the ECHR], unless it were to be understood that individuals could be protected on that basis from the exercise of their own fundamental rights and freedoms …

120. … However essential it may be, respect for human dignity cannot legitimately justify a blanket ban on the wearing of the full-face veil in public places. The Court is aware that the apparel in question is perceived as strange by many of those who observe it. It would point out, however, that it is the expression of a cultural identity which contributes to the pluralism that is inherent in democracy …’

55. The other area in respect of which I would note a change of emphasis involves the freedom available to employees to relinquish their post and, by implication, to find another job elsewhere. In an earlier decision of the European Commission of Human Rights, this was held to be ‘the ultimate guarantee of [the employee’s] right to freedom of religion’. (56) More recently,

21 the Strasbourg Court itself has taken a different view, holding that ‘given the importance in a democratic society of freedom of religion, the Court considers that, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate’. (57)

56. As regards alleged violations of Article 14 of the ECHR, the Strasbourg Court has held that that provision has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the ECHR and its Protocols. (58) In Eweida and Others v. The United Kingdom, (59) it held as regards Ms Eweida that, since it had found there to be a breach of Article 9, there was no need to examine her complaint under Article 14 separately. (60) With respect to the second applicant in that case, it stated that the factors to be weighed in the balance when assessing the proportionality of the measure under Article 14 taken in conjunction with Article 9 would be similar and that there was thus no basis for finding a breach of the first-mentioned provision in view of the fact that there had been no finding of a contravention of Article 9. (61)

57. While the aim underlying Protocol No 12 to the ECHR is to provide enhanced protection in respect of discrimination, its relevance to date has been very limited. In particular, only nine Member States have ratified it to date (62) and there has been only minimal case-law of the Strasbourg Court concerning it. (63)

The differences between a restrictions-based approach and one based on discrimination

58. In its written observations, Micropole has emphasised what it perceives to be a fundamental contrast in this area of the law between the restriction of a right and the prohibition of discrimination. Their scope of application is different and the former is markedly more flexible than the latter. They should, it observes, be differentiated.

59. The point is an important one and merits closer examination.

60. It is indeed true that the primary approach of the Strasbourg Court in applying the ECHR has been to adopt what I might call the restrictions-based approach by reference to Article 9. As I mentioned in point 56 above, the role played by Article 14 has been an ancillary one. Since the Charter has binding effect in EU law following the entry into force of the Treaty of Lisbon, it might be anticipated that this Court would now adopt the same approach in applying the equivalent provisions under that document, that is to say,

Articles 10 and 21.

61. That view seems to me too simplistic.

62. Directive 2000/78 imposes a series of prohibitions based on discrimination. In so doing, it follows the approach adopted in what is now EU law since its inception. (64) In the context of age discrimination, the Court has held that the principle of non-discrimination must be regarded as a general principle of EU law which has been given specific expression in the Directive in the domain of employment and occupation. (65) The same must apply as regards the principle of non-discrimination on grounds of religion or belief.

63. At the same time, however, there is a fundamental difference in the intellectual analysis underlying the two approaches. It is true that the position may be essentially the same in the context of indirect discrimination, inasmuch as the derogations permitted under EU legislation require there to be a legitimate aim that is proportionate, thereby mirroring the position under the ECHR. But in the context of direct discrimination, the protection given by EU law is stronger. Here, interference with a right granted under the ECHR may still always be justified on the ground that it pursues a legitimate aim and is proportionate. In contrast, under the EU legislation, however, derogations are permitted only in so far as the measure in question specifically provides for them. (66)

Footnotes

38 – Judgment of 10 November 2005 in Leyla Şahin v. Turkey, CE:ECHR:2005:1110JUD004477498, § 105.

39 – See, for example, decision of 15 February 2001 in Dahlab v. Switzerland, CE:ECHR:2001:0215DEC004239398.

40 – For an example of the application of that test, see, for example, decision of 15 February 2001 in Dahlab v. Switzerland, CE:ECHR:2001:0215DEC004239398.

41 – Decision of 15 February 2001 in Dahlab v. Switzerland, CE:ECHR:2001:0215DEC004239398.

42 – Decision of 24 January 2006 in Kurtulmuş v. Turkey, CE:ECHR:2006:0124DEC006550001.

43 – Decision of 3 April 2007 in Karaduman v. Turkey, CE:ECHR:2007:0403DEC004129604.

44 – Judgment of 26 November 2015 in Ebrahimian v. France, CE:ECHR:2015:1126JUD006484611.

45 – §§ 63 and 67. It is worth pointing out, however, that that judgment did not go without criticism from within the Strasbourg Court itself. In her partly concurring and partly dissenting opinion, Judge O’Leary observed that the Court’s earlier case-law essentially concerned issues that are intimately linked to the values which educational establishments are intended to teach and that there was only little discussion in the judgment in the present case of the considerable extension of the case-law into the wider field. As regards the margin of appreciation given to Contracting States in the context of a religious head covering, she stated that such a margin of appreciation goes hand in hand with European supervision in cases where the ECHR applies and cannot simply be sidestepped by invoking that margin of appreciation, however wide. In his dissenting opinion, Judge De Gaetano stated, in support of his view that there had been a violation of Article 9 of the ECHR, that the judgment rested on what he termed the ‘false (and very dangerous) premiss … that the users of public services cannot be guaranteed an impartial service if the public official serving them manifests in the slightest way his or her religious affiliation …A principle of constitutional law or a constitutional “tradition” may easily end up being deified, thereby undermining every value underpinning the [ECHR]…’.

46 – Judgment of 15 January 2013 in Eweida and Others v. The United Kingdom, CE:ECHR:2013:0115JUD004842010, §§ 99 and 100.

47 – Judgment of 1 July 2014 in S.A.S. v. France, CE:ECHR:2014:0701JUD004383511, § 139. Since the French Government

had failed to satisfy that test, it lost on that ground. However, the measure was upheld on the basis of the separate aim of ‘living together’ put forward by that Government.

48 – Judgment of 15 January 2013, CE:ECHR:2013:0115JUD004842010.

49 – § 91.

50 – § 84.

51 – § 94.

52 – I accept, of course, that the contexts are different, the earlier case-law concerning the education sector and the later case- law the public sphere.

53 – Decision of 15 February 2001, CE:ECHR:2001:0215DEC004239398.

54 – See also judgment of 10 November 2005 in Leyla Şahin v. Turkey, CE:ECHR:2005:1110JUD004477498, § 111.

55 – Judgment of 1 July 2014, CE:ECHR:2014:0701JUD004383511.

56 – See decision of 3 December 1996 in Konttinen v. Finland, CE:ECHR:1996:1203DEC002494994, approved in decision of 9 April 1997 in Stedman v. The United Kingdom, CE:ECHR:1997:0409DEC002910795, where the Commission noted that the applicant was ‘free to resign’.

57 – Judgment of 15 January 2013 in Eweida and Others v. The United Kingdom, CE:ECHR:2013:0115JUD004842010, § 83.

58 – Judgment of 15 January 2013 in Eweida and Others v. The United Kingdom, CE:ECHR:2013:0115JUD004842010, § 85. For that reason, Article 14 of the ECHR has been described by some authors as being ‘parasitic’. See Haverkort-Spekenbrink, S., European Non-discrimination Law, School of Human Rights Research Series, Volume 59, p. 127.

59 – Judgment of 15 January 2013, CE:ECHR:2013:0115JUD004842010.

60 – § 95.

61 – § 101.

62 – See footnote 5 above.

63 – See, by way of example, judgments of 22 December 2009 in Sejdić and Finci v. Bosnia and Herzegovina, CE:ECHR:2009:1222JUD002799606, and 15 July 2014 in Zornić v. Bosnia and Herzegovina, CE:ECHR:2014:0715JUD000368106. The cases concerned the right of the applicants to stand for election to the House of Peoples and the Presidency of Bosnia and Herzegovina.

64 – See, further, point 68 et seq. below.

65 – See judgment of 13 September 2011 in Prigge and Others, C‑ 447/09, EU:C:2011:573, paragraph 38.

66 – See further, on Directive 2000/78, point 70 below.

82. AG Sharpston then considered Article 4 and held it must be applied strictly. The justification test will therefore be very important. Thus she said in Case C‑188/15 Asma Bougnaoui at [95] –

Indeed, given the statement in recital 23 of the directive that the derogation should apply only ‘in very limited circumstances’, it is hard in the extreme to see that the position could be otherwise.

83. She added at [99] –

99. As regards the prohibition concerning discrimination on the ground of

religion or belief, the obvious application of the derogation would be in the area of health and safety at work. Thus, for example, it would be possible to exclude, for those reasons, a male Sikh employee who insisted for religious reasons on wearing a turban from working in a post which required the wearing of protective headgear. The same could apply to a female Muslim working on potentially dangerous factory machinery and whose wearing of particular attire could give rise to serious concerns on safety grounds. Whilst I do not wish to state that there are no other circumstances in which the prohibition of discrimination based on religion or belief could fall within Article 4(1), I find it hard to envisage what they could be.

Is a veil ban direct or indirect religious discrimination? 84. AG Sharpston answered this question by saying that as manifestation of a religious belief was an intrinsic part of that belief the ban on such manifestation was direct discrimination. Her reasoning was that the concept of religion used in Directive 2000/78 had to accord fully with that in Article 9. In her proposal as to the Operative Part that the CJEU should adopt she said –

A rule laid down in the workplace regulations of an undertaking which prohibits employees of the undertaking from wearing religious signs or apparel when in contact with customers of the business involves direct discrimination on grounds of religion or belief, to which neither Article 4(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation nor any of the other derogations from the prohibition of direct discrimination on grounds of religion or belief which that directive lays down applies. That is a fortiori the case when the rule in question applies to the wearing of the Islamic headscarf alone.

85. That is why her assessment of the derogation in Article 4 was so important. She did however consider the position if she were wrong on this adding as a second rider to the proposed Operative Part -

Where there is indirect discrimination on grounds of religion or belief, Article 2(2)(b)(i) of Directive 2000/78 should be construed so as to recognise that the interests of the employer’s business will constitute a legitimate aim for the purposes of that provision. Such discrimination is nevertheless justified only if it is proportionate to that aim.

86. Hers was the second Opinion on this subject this year. Shortly before her Opinion Advocate General Kokott had delivered her Opinion on 31 May 2016 in Case C‑157/15 Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV, which concerned remarkably similar facts. She introduced the problem in her case at [1] – [3] –

1. Is a private employer permitted to prohibit a female employee of Muslim faith from wearing a headscarf in the workplace? And is that employer permitted to dismiss her if she refuses to remove the headscarf at work? These are, in essence, the questions which the Court must answer, for the first time in the present case, from the point of view of EU law, and, more specifically, in the light of the prohibition on discrimination based on religion or belief.

2. There is no need to highlight here the social sensitivity inherent in this issue, particularly in the current political and social context in which Europe is confronted with an arguably unprecedented influx of third-country migrants and the question of how best to integrate persons from a migrant background is the subject of intense debate in all quarters.

3. Ultimately, the legal issues surrounding the Islamic headscarf are symbolic of the more fundamental question of how much difference and diversity an open and pluralistic European society must tolerate within its borders and, conversely, how much assimilation it is permitted to require from certain minorities.

87. Her approach may easily be contrasted with that of AG Sharpston by consideration of her proposal for the Operative Part of the Court’s judgment –

141. In the light of the foregoing submissions, I propose that the Court’s answer to the request for a preliminary ruling … should be as follows:

1) The fact that a female employee of Muslim faith is prohibited from wearing an Islamic headscarf at work does not constitute direct discrimination based on religion within the meaning of Article 2(2)(a) of Directive 2000/78/EC if that ban is founded on a general company rule prohibiting visible political, philosophical and religious symbols in the workplace and not on stereotypes or prejudice against one or more particular religions or against religious beliefs in general. That ban may, however, constitute indirect discrimination based on religion under Article 2(2)(b) of that directive.

2) Such discrimination may be justified in order to enforce a policy of religious and ideological neutrality pursued by the employer in the company concerned, in so far as the principle of proportionality is observed in that

regard.

In that connection, the following factors in particular must be taken into account:

– the size and conspicuousness of the religious symbol,

– the nature of the employee’s activity,

– the context in which she has to perform that activity, and

– the national identity of the Member State concerned.

88. While there is much to recommend the approach taken by AG Sharpston to the question whether this was direct or indirect discrimination I have to say that I prefer the approach taken by AG Kokott. It seems to me to provide an added layer of forensic consideration and therefore to be more closely in tune with my own ideas as to what is needed in this field as I have set out in my introduction.

89. The CJEU will deliver a judgment – it is hoped – later this year. It is one to look out for.

Specific exceptions 90. The Directive is also interesting because of its specific exceptions. Thus Article 15 says –

1. In order to tackle the under-representation of one of the major religious communities in the police service of Northern Ireland, differences in treatment regarding recruitment into that service, including its support staff, shall not constitute discrimination insofar as those differences in treatment are expressly authorised by national legislation.

2. In order to maintain a balance of opportunity in employment for teachers in Northern Ireland while furthering the reconciliation of historical divisions between the major religious communities there, the provisions on religion or belief in this Directive shall not apply to the recruitment of teachers in schools in Northern Ireland in so far as this is expressly authorised by national legislation.

91. I was partly responsible for these as I worked with the Commission and the UK at the time that this was being formulated and pointed out the first represented the deal under the Good Friday Agreement leading to so – called

Patten quotas IN THE Northern Ireland Police,55 while the second represented then as it does now the position under the Fair Employment and Treatment Order 1998.56

92. So in summary the current position is that protection of discrimination against workers on grounds of religion and belief in the work place is protected by domestic anti-discrimination legislation giving effect to the Directive with general measures subject to specific exclusions, while the protection of the religious rights of employers depends on the flexible application of the rights scheduled to the Human Rights Act 1998, particularly Article 9.

How are these laws operating in the workplace now? 93. Some recent litigation will exemplify how these generic principles and laws are being worked out in practice. One case concerns dress codes. The other concerns a clash between evangelical attitudes to marriage and the progress in securing recognition of a person’s right not to suffer oppression because of their sexual orientation.

Dress codes at work 94. The link between dress codes and religion or belief is long been quite obvious.57 Where dress codes cause disadvantage the need for a scrupulous analysis of the justification for their requirements is always important.

95. Perhaps the high point so far has been the consideration of dress codes by the Strasbourg court in S.A.S. v. France58 (mentioned in the two Opinions referred to above). Thus two years ago on the 1st July 2014 the Grand Chamber of the European Court of Human Rights issued its important ruling that the French law prohibiting the use of the burqa and niqab in French public spaces was not unlawful.

96. The case prompted Baroness Hale later that year to point out59 that –

39 … issues of compatibility with Convention rights often involve consideration of whether the legislation in question has struck a fair balance between the protection of individual rights and the general interests of the

55 See section 46 of the Police (Northern Ireland) Act 2000. This provision has now been revoked. For a discussion of the implications of that provision see Northern Ireland Public Service Alliance's Application for Judicial Review, Re [2014] NIQB 16 (QBD (NI)). 56 See Art. 171; although this provision must be kept under review: Art. 71(4). 57 See the Equality and Human Rights Commission Statutory Code of Practice at [4.11] and [4.23]. These passages were discussed by the Court of Appeal in Essop and others v. Home Office (UK Border Agency) [2015] EWCA Civ 609, [2015] I.C.R. 1063, at [46] – [47]. 58 See SAS v. France (43835/11) (2015) 60 E.H.R.R. 11; 36 B.H.R.C. 617; [2014] Eq. L.R. 590. 59 See Regina (Barclay and another) v. Lord Chancellor and Secretary of State for Justice and others (No 2) (Attorney General of Jersey and another intervening) 22 October 2014, [2014] UKSC 54, [2015] A.C. 276.

community. In cases such as Lautsi v. Italy (2011) 54 EHRR 60 and SAS v. France (2014) 60 EHRR 244 , Strasbourg has shown increasing respect for the particular national context and cultural traditions where interferences with qualified rights are concerned.

97. These two judgments set the scene for Ms T Begum v. Pedagogy Auras UK Ltd T/A Barley Lane Montessori Day Nursery. 60 This case, concerning a complaint against a nursery that had refused to employ Ms Begum on health and safety grounds because of the length of her jilbab, was bound to be of interest.

98. In Begum the ET held that the nursery’s safety policy was not indirectly discriminatory and was justified and the EAT agreed. The nursery did not prohibit the wearing of a full-length jilbab – it had merely expressed concern about the length of the particular jilbab being worn by Ms Begum at the interview. The nursery had applied a provision criterion or practice that employees should not wear clothes that constituted a trip hazard, and that policy did not place Muslim women at a particular disadvantage.

99. Women who wanted to wear a full‑length jilbab could do so as long as it was not a trip hazard; a normal garment coming down as far as the ankle would have been perfectly acceptable. The nursery’s approach was practical and so justified and so would I expect conform to any ruling that the CJEU will make on the two cases in which we have had Opinions this summer.

Resolving conflicts between religion and sexual orientation 100. In Sarah Mbuyi v. Newpark Childcare (Shepherds Bush) Ltd.61 an Employment Tribunal had to consider a case concerning the disciplining of a born again Christian for her conduct at work toward a woman in a same-sex marriage. I shall set out how the incident was described by the complainant in the ET’s judgment because it shows neatly one perspective. The other perspective is summarised in the report of the hearing in Equal Opportunities Review.

101. The ET noted the complaint’s view thus62 –

“Sarah and I were in the woodland room when I wished her a happy new year and asked her how she celebrated her day. She explained that she spent it at church where she did various activities. She went on to tell me that she was a born again Christian and that God loves everyone EVEN me!

Initially I did not understand what she was implying by this so I explained

60 Judgment of the 22nd May 2015, UKEAT/0309/13/RN, 2015 WL 3404774, [2015] EOR Issue 259. 61 Case no. 3300656/14, judgment 4th June 2015, 2015 WL 4944451, [2015] EOR Issue 259. 62 See [32].

the religious education I received as a child is in contrast with my relationship and I do not consider myself a religious person. However, my family does include some practising Catholics. She then elaborated saying that homosexuality was a sin and she understands that I feel that I didn't choose to be gay but she believes it is a choice. At this point of the conversation I felt that this was a very personal attack and attempted to defend myself by explaining that I did not decide to be gay any more than she chose to be straight. She went on to say “Don't worry though we all sin every day. Some people lie, there are lots of sins we all do but don't worry God still loves you and forgives you.” Again I felt as though Sarah was attacking myself and my marriage. Up until this point I have not felt my sexuality was any kind of issue and I was so taken aback by this outburst that I asked if I could be excused. I went to find M and broke down in tears. She then brought the issue to the attention of EN.

This exchange has caused me to question the intent behind the bible she gave me. As I previously stated I had felt that it was inappropriate but given to me with good intentions. I no longer feel this to be the case.

Sarah approached me after the event and attempted to make conversation. I replied and said “You have really upset me. Please don't speak to me unless it's work related" and Sarah just said “OK” and shrugged her shoulders without apology.

I feel very uncomfortable working with Sarah now. I've never felt as though I had been judged by her because of my sexual orientation and yet this is how I feel in Sarah's presence.”

102. In Sue Johnstone’s summary of the outcome of the case in EOR we can see the perspective of her co-worker set out and the process of reasoning to the ET’s conclusion –

The employment tribunal found that there was little or no evidence before it to suggest that the claimant had been targeting LP in an attempt to force her faith upon her. It accepted that the claimant would look for opportunities to share her faith when she felt she was being invited to do so, and would do so by gifts of the bible, which she had made not just to LP but also to heterosexual colleagues. It noted also that neither the final incident nor earlier allegations were investigated at the time of the decision to dismiss.

The tribunal concluded that the treatment of the claimant was not because of her religion, stating “the respondent was not anti-Christian”. It found that the

30 issues arose out the claimant’s belief that homosexuality is a sin. The tribunal found it was a genuine belief that was more than opinion and was worthy of respect in a democratic society. It rejected the respondent’s argument that such belief was “discriminatory, homophobic and akin to racism”, stating that “there is a difference between, say, a racist expressing hateful views and a person of religious conviction expressing their beliefs, however unwelcome.”

Looking at the allegation of harassment against the claimant, the tribunal found that there was no unwanted conduct, as the claimant had given her views after being asked for them by LP.

The tribunal found that the view that the claimant was targeting LP was formed on allegations that were not even put to her, adding that “there may have been stereotypical assumptions about the claimant and her beliefs such that anything that could be considered to relate to LP’s sexuality would not only be construed as such, but construed both negatively and related to the belief”. It cited, for example, the gift of the bible and the respondent’s assumption it was related to LP’s sexuality, omitting to mention that the claimant had given the same gift to a heterosexual colleague. The respondent also referred to the claimant “forcing” her belief on others, whereas she had made it clear that she “shared” her beliefs when “approached”.

The tribunal concluded that “the evidential and logical leaps” taken by the respondent in reaching the conclusion that the claimant targeted LP because of her sexuality could be explained only as “a stereotypical assumption about evangelical Christians”.

In relation to the indirect discrimination claim, the respondent accepted that there was a provision, criterion or practice (PCP) prohibiting employees from expressing adverse views on homosexuality or describing homosexuality as a sin. It was also clear that such a PCP put people who share the claimant’s religious beliefs at a particular disadvantage. The question therefore was whether it was justified. Although the respondent was found to have a legitimate aim, the tribunal held that it was not proportionate to dismiss in the circumstances.

The tribunal added that “it is probably apparent” from its findings that “there was a possibility of a dismissal in circumstances that would not have been discriminatory”, and an argument for contributory conduct when assessing compensation.

A further, novel, argument that was put forward by the claimant was that “the ‘widely held’ view across Europe was that the UK legal system

prioritised rights relating to sexual orientation over those of religious conviction and that this therefore hindered the right to freedom of movement”.

The tribunal said that the “basic premise of favouritism had been addressed, and rejected, in cases such as Macfarlane, Bell and Eweida”. In addition, the tribunal’s view was that whilst these contentions were “intriguing and innovative”, there was no evidence of any actual barrier to the freedom of movement of EU workers and that the only evidence is that the UK has “positive net migration from the EU every year and, regarding the movement of Christians, we have the claimant who came here as a Christian and remains in the UK, knowing more than most about the jurisprudence in this area.”

103. The judgment suggests that a different result might have followed had Ms. Mbuyi initiated the conversation. Yet this seems a very thin basis for a distinction given the detail of the conversation. It is inevitable that Evangelicals and Gays and Lesbians will be working together and it is inevitable that from time to time they will talk about their respective viewpoints. Cases should not turn on who speaks first but on the content and outcome of the conversation. It seems a shame that a more tolerant accommodation could not have been found in the work place.

The religion of justice 104. I shall conclude with a few comments about the religion of justice. How does this all look in our profession?

105. Let me take judges first, because numerous commentators have argued that a judiciary that is relatively diverse underpins the confidence in its role. As long ago as 2001, your President Baroness Hale wrote63–

…it is wrong in principle for that authority to be wielded by such a very unrepresentative selection of the population…not only mainly male, overwhelmingly white, but also largely the product of a limited range of educational institutions and social backgrounds…

106. There is some research that suggests that minority religions are poorly represented in the judiciary.64 I suspect that you will agree that this is likely

63 See “Equality and Judiciary: why should we want more women judges?” [2001] PL 489. 496 – 500. 64 Professor Cheryl Thomas of UCL pointed this out in her paper “UNDERSTANDING JUDICIAL DIVERSITY Research Report for the Advisory Panel on Judicial Diversity”; see fn 2 on page 3. See https://www.laws.ucl.ac.uk/wp.../12/Understanding-Judicial-Diversity-FINAL3.pdf

to right. So it might have been some form of useful comparison to look at the religious make-up of the judiciary. Unfortunately this is not possible for England, Wales and Scotland as the statistics are simply not collected.65

107. Surprisingly, I have also been unable to find any information for Northern Ireland and I don’t believe that they are collected there either. This may be because everyone already supposes that they know. I well recall my first case being led in the Northern Ireland Court of Appeal. It concerned indirect religious discrimination. My leader explained to me the religious background of the judges could unusually in this case not be discerned from their surnames.66

108. However it has been asserted explicitly though anonymously that this has led the Northern Ireland judiciary through the era of the Diplock Courts to take even greater care to explain the reasons for difficult decisions to avoid the comment that by reason of their background the judge “Would say that”.67 If so, then this would be a good example of the proper application of the fourth point in my introduction.

109. In fact I wonder whether in Northern Ireland where so much is monitored in the public arena there is more detailed knowledge of the religion of the judiciary. I suspect it can be very easily guessed by well- known markers of ethnicity.

110. Northern Ireland apart, there seems to be no good reason of which I am aware why such statistics are not collected. There are three possible reasons that I can imagine and none of them seem very good to me.

111. The first is simply inertia. They haven’t been collected in the past so why should they be now.

112. The second is cost. As far as I am aware in no part of the United Kingdom is a regular triennial exercise of monitoring the judiciary against protected characteristics carried out. Yet the marginal cost of collecting this information over and above that of other protected characteristics would be minimal.

113. The third is fear. I suspect that some would fear what it might show about the over and under-representation of different religions.

65 I have confirmed this with emails from the Judicial Offices both North and South of the Border. 66 See also the discussion by Kieran McEvoy and Alex Schwartz of ethnic cognition of the judiciary ni Criminal Justice in Transition: The Northern Ireland Context edited by Anne-Marie McAlinden, Clare Dwyer, Hart 2015, chapter 8 at p. 167. 67 Op. cit. supra.

114. None of these points cut any ice with me at all. In my profession of barrister we are required by our Regulator68 to monitor the religion of the members of our chambers69 although the result is to be kept confidential.70 The Equality and Human Rights Commission found however that many public authorities do publish such information.71

115. At present the public does not seem to mind about this lack of information. Will it last? If it is not collected then I very much hope so.

116. However if we do not manage these clashes well then it seems inevitable that there will be an attempt to parse judicial decisions for religious bias. If so I hope that only the humanity and tolerance, for which I have advocated above, will be found there.

117. If this is in doubt then it seems inevitable that the press and public will speculate about the religion of the judge whose judgment is under scrutiny. So is it better to know?

118. We can discuss this and the other issues today and perhaps reach a consensus for today. However while the current diversity of religious opinions and beliefs exists I suggest it will not be the last word!

ROBIN ALLEN QC

Cloisters

18th October 2016

68 See https://www.barstandardsboard.org.uk/media/1596730/bsb_equality_rules_handbook_june_2014.pdf at p.25. 69 Asking do you have No religion or belief, or are you Buddhist, Christian (all denominations), Hindu, Jewish, Muslim, Sikh, or “Any other religion”? 70 See rC110(3) (n) – (t) 71 See https://www.equalityhumanrights.com/en/advice-and-guidance/monitoring-and-enforcement#h2