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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 1 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 2 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. 3 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 4 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
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