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Religious Expression and Considers and Critiques the Possible Rationale Underlying Each

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Religious Expression and Considers and Critiques the Possible Rationale Underlying Each Durham E-Theses Legal responses to the individual manifestation and expression of religion in the workplace in England and Wales: a conceptual framework HAMBLER, ANDREW How to cite: HAMBLER, ANDREW (2013) Legal responses to the individual manifestation and expression of religion in the workplace in England and Wales: a conceptual framework, Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/7012/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk 2 Abstract Legal responses to the individual manifestation and expression of religion in the workplace in England and Wales: a conceptual framework Andrew Hambler The purpose of this thesis is to analyse legal approaches in England and Wales towards the manifestation and expression of religion by individuals in the workplace. It begins by considering the nature of ‘religion’ and then seeks to understand and categorise the ways in which it is held by individuals at work through: inner belief, identity, association with others and, most significantly, outward manifestation or expression. Forms of manifestation which are potentially contentious are identified and classified, for analytical purposes, into three categories: negative, passive and active manifestation. These categories are utilised as headings in the later chapters of the thesis to provide a logical structure for analysing the relevant case law, as it is argued that there are legal issues which specifically apply to each. The thesis continues to discuss theoretical positions which might be adopted in a liberal state towards workplace religious expression and considers and critiques the possible rationale underlying each. It is proposed that there are six possible models: (I) the exclusion model which aims to suppress religious expression; (II) support for a preferred historic (‘majority’) religion only; (III) laissez-faire (leaving the matter to the employer’s discretion alone); (IV) protection, but only within ‘islands of exclusivity’ (religious organisations); (V) protection; and (VI) protection for minority religions only. These models are used as reference points in discussing statute law applying in the legal jurisdiction of England and Wales and, in subsequent chapters, case law. Although features of each model are discerned, particularly ‘protection’, ‘exclusion’ is identified as the dominant legal model in respect of many of the most contested forms of manifestation of religion in the workplace. It is submitted that, given the primary significance of religious expression to many individuals, the law should move further in the direction of the protection model. Legal responses to the individual manifestation and expression of religion in the workplace in England and Wales: a conceptual framework Andrew G Hambler Thesis presented in accordance with the requirements of the degree of Doctor of Philosophy Department of Law Durham University 2013 Contents Statement of Copyright .......................................................................................... 6 Acknowledgements ................................................................................................ 7 Chapter 1: Introduction .......................................................................................... 8 The Issue ............................................................................................................ 8 Research aims ................................................................................................... 10 Materials ........................................................................................................... 11 Legal materials ............................................................................................. 11 Non legal materials ...................................................................................... 13 Literature .......................................................................................................... 13 Outline Structure .............................................................................................. 15 Chapter 2: Conceptualising ‘Religious Expression’ in the Workplace ................ 16 Introduction ...................................................................................................... 16 Identifying Religious Expression: A typology ................................................. 17 Belief ............................................................................................................ 20 Identity ......................................................................................................... 22 Membership of a Religious Community ...................................................... 23 Acting on Belief, Identity or Community outside of the Workplace ........... 24 Acting on Belief within the Workplace ....................................................... 27 Acting on Religious Identity within the Workplace .................................... 30 Acting on Religious Community within the Workplace .............................. 32 Religious Expression – a test of legitimacy ..................................................... 32 ‘Legitimate’ Religion ................................................................................... 33 Legitimate religious expression ................................................................... 39 The importance of sincerity ............................................................................. 45 The Nature of the Workplace ........................................................................... 49 Conclusion........................................................................................................ 50 Chapter 3: Restricting or Guaranteeing Religious Freedom in the Workplace: Legal Models ........................................................................................................ 53 Introduction ...................................................................................................... 53 2 The Six Models ................................................................................................ 53 I Exclusion ............................................................................................... 53 II Support for a Preferred Historic Religion ............................................. 54 III Laissez-faire ....................................................................................... 55 IV ‘Islands of Exclusivity’ ...................................................................... 55 V Protection for Religion .......................................................................... 56 VI Protection for Minority Religions ...................................................... 56 Summary ...................................................................................................... 56 Exclusion .......................................................................................................... 57 Religious Belief ............................................................................................ 57 Religious Expression: Rationale & Implications ......................................... 60 Critique ......................................................................................................... 67 Support for a Preferred (Historic) Religion ..................................................... 72 Rationale & Implications ............................................................................. 72 Critique ......................................................................................................... 73 Laissez-faire ..................................................................................................... 74 Rationale & Implications ............................................................................. 74 Critique ......................................................................................................... 76 ‘Islands of Exclusivity’ .................................................................................... 77 Rationale & Implications ............................................................................. 77 Critique ......................................................................................................... 80 Protection for Religion ..................................................................................... 82 Rationale ...................................................................................................... 82 Implications .................................................................................................. 87 Critique ......................................................................................................... 87 A variant of the model: Protection for Religion and Belief ........................
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