Beggars belief

Ben Turley examines the implications of new laws to tackle religious discrimination

The purpose of this article is to look at the new civil legislation and case law around religious discrimination. I am not qualified to comment on the criminal law and therefore have little to say about the controversial incitement to religious hatred provisions which so upset Rowan Atkinson and others recently, including the Evangelical Alliance.

I will say, however, that the current debate is three- and not two-sided, that there is a third way between those who support the incitement proposals and those who oppose them on freedom of speech grounds. This third way acknowledges that there is a problem which requires legislation, but wishes to restrict the wording of the Act so that only ‘threats’ are covered and not ‘abusive’ or ‘insulting’ language because of the danger to civil liberties (and human rights) if these concepts are made into offences under the proposed Act. Further amendments being suggested include a freedom of expression clause which will protect the right to ridicule religion as well as for religions to proselytise (presumably at the expense of other religions and beliefs).

The first thing to note about the new civil regulations on religious discrimination is that they derive from the secular states of the European Union and not from Tony Blair or any other domestic politician who allows his or her spiritual beliefs to be publicly known. Secondly, while the source of the legislation is Europe, the specific form has been influenced by our parliament. And thirdly, the provisions will be extended and replaced by the new single Equality Bill currently going through parliament.

Currently, however, the statutory source for the anti-discrimination laws for religion and belief is the Employment Equality (Religion or Belief) Regulations 2003 SI 1660. This covers all forms of religion and belief, including, according to ACAS, humanism and paganism (including Odinism). In practice, whether humanism is covered as a belief will depend on the decision of employment tribunals. Whereas humanist ceremonies are available to those who want them at key times in life, humanists don’t generally meet in any form of regular collective ceremony. So, until a humanist employee takes his or her case to an employment tribunal, the position remains uncertain. I am wholly sympathetic to the Humanist Society’s attempts to rewrite the definition in the new Equality Bill so that humanists are clearly included. However, in my view the case is clearer for atheists and nihilists, and they are unlikely to be covered by the regulations.

Employees’ rights

The existing provisions cover employment and post-16 education by providing rights to employees, contract workers, office holders and students. Applicants to trade organisations (such as the Law Society, other such industry mark agencies, and trade unions) are also covered, as are qualifications bodies.

The employment provisions make it unlawful to discriminate, harass (create an offensive and degrading environment, etc) or victimise (pick on somebody because they have complained to a tribunal or taken part in tribunal proceedings on behalf of a claimant). As with the Race Relations and Sexual Discrimination Acts, there are two types of discrimination: direct and indirect.

Direct discrimination occurs when someone is treated less favourably on grounds of their religion or belief than others in similar circumstances. In order to establish direct discrimination, it is necessary to show that the claimant has been treated less favourably than a ‘comparitor’ – someone from a different religion or belief, or none, who has the same relevant characteristics. For example, if the claimant was a disappointed job applicant, the comparitor would be someone who was equally suitable for the post as the applicant but who did not share his or her religion or belief. If it is likely the comparitor would have been given the job, then direct discrimination has probably occurred, unless the respondent (the employer organisation) can show that, on the balance of probabilities, this would not have been the case. It is not necessary to show that the respondent had any conscious intention to discriminate – this would make proving direct discrimination evidentially difficult.

Indirect discrimination occurs when an employer exercises a provision, criteria or practice which puts people of a particular religion or belief at a disadvantage when compared to other people. However, this sort of discrimination is still not unlawful unless it puts the claimant (someone of that particular religion or belief) at a disadvantage and the respondent cannot show that the provision, criteria or practice is a ‘proportionate’ means of achieving a ‘legitimate’ aim.

The wording is taken from European jurisprudence (proportionality is a stricter test than English ‘reasonableness’, which might have been the standard in pre-EU times). According to ACAS, in this context ‘legitimate’ means a good business reason and ‘proportionate’ means the provision must have been necessary, and that there is no alternative means of achieving the same business end. It should be noted that it is not unlawful for an employer to disadvantage people of a particular religion indirectly unless an individual of that religion, employed by the respondent, takes out a successful claim.

The only cases of indirect discrimination that have been decided have involved employees who have claimed constructive dismissal after being sacked or resigning because they were required to work on a Sunday or during Hajj (the pilgrimage to Mecca).

None of this will be particularly repugnant to most secular socialists, who, along with those of a liberal disposition, should regard such legislation as necessary. Certainly, the short list of decided cases indicates that there have been some pretty unpleasant practices in some workplaces and it is probably right to protect people against this sort of discrimination. I still struggle to see how the regulations will benefit humanists in practical terms, however, because direct discrimination is likely to be very rare – because of the Genuine Occupational Requirement exception (see below); and because indirect discrimination only seems to affect believers who have extensive ceremonial commitments. Still, these are early days and humanists who suspect that we are on the brink of a new medievalism will no doubt derive some comfort from the existence of the regulations.

Genuine Occupational Requirement

The Genuine Occupational Requirement (Regulation 7) – or GOR – is probably the most controversial aspect of the regulations. This regulation allows employers to discriminate on grounds of religion and belief when ‘being of a particular religion or belief is [an] … occupational requirement’ of the job and the person discriminated against does not meet that requirement.

For example, if a local council needed to employ somebody of a particular religion to work with Muslim women, in circumstances in which it would be inappropriate not to be Muslim, then they could lawfully require all applicants to be Muslims. For the sake of argument, imagine that someone who was not of that particular religion has applied for the job. Under the GOR exception, the council would, subject to some further legal tests, be able to discriminate against the applicant on grounds of religion and belief without committing an unlawful act.

However, this is not the controversial aspect of the regulation. GOR also applies to race and sex discrimination legislation and few people would dispute, for instance, that many of the jobs nowadays reserved for ethnic minorities or women by local councils could be done by anybody else.

The controversy is that the GOR in the religion and belief regulations is divided into two subsections which may apply in different circumstances. Subsection (2) deals with all employers, both secular and religious, and subsection (3) deals with religious or belief employers alone but sets a lower standard of requirement for these organisations than for non-believing ones. So, in respect of all organisations, the employer must be able to demonstrate that the GOR is a ‘genuine’ and ‘determining’ requirement of the job (in other words, that the employer genuinely believes that the stipulation is necessary, and that the organisation, or a substantial majority of its members, really believe that). However, religious and belief organisations need only show that the requirement is ‘genuine’ (it does not even need to be regarded as ‘reasonable’ in the eyes of a tribunal).

The practical effect will be that religious organisations will be able to discriminate more easily than secular ones, unless the Humanist Society is also protected by the regulations. That discrimination, however, is unlikely to apply to everyone who is employed by a religious organisation – ACAS express the firm view that church cleaners, for instance, would not be caught by the exception. It certainly still leaves grey areas though.

Personally, I would not join in the criticism of this part of the legislation without further consideration of the human rights effect of not having it. Would it, for instance, threaten the mission of religious organisations as they (and not as we) see it, and can the state justify interfering with their beliefs in these circumstances? Will the difference prejudice non-believers to such an extent that such an interference can be justified? I don’t know the answers to these questions and so, while I admit to feeling uncomfortable about Regulation 7, I do not want to criticise it without further consideration.

Sexual orientation

However, I do wish to be critical of Regulation 7(3) of the Sexual Orientation regulations, which also concerns religious GOR, and effectively allows for discrimination (but not harassment or victimisation) against practising gays, lesbians and bisexuals in employment by any religious organisation if:

the employment is for organised religion and the discrimination is in order to comply with the doctrines of that religion;

OR

because of the nature of the employment and its context, discriminating will avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers.

Trade unions are similarly critical and some of them took the matter to judicial review in the case of R (on the application of Amicus-MSF, NUT and others) v Secretary of State for Trade and Industry [2004] IRLR 430. The unions argued (on behalf of the claimant) that Regulation 7(3) was, among other things:

ultra vires;

an attempt by the executive to usurp the jurisdiction of the courts and tribunals by specifying what derogations from the equal treatment principle by organised religions were proportionate in the regulations themselves; and

construed so widely as to undermine the principle of proportionality.

The court rejected the union’s case and accepted the government’s, which was that Regulation 7(3) should be construed very narrowly indeed. The court could only clearly say that it applied specifically to ‘a job, such as a minister of religion, involving work for a church, synagogue or mosque’. In respect of the first test (compliance with doctrines of religion), the court stated that ‘it would be very difficult for a church to argue that a requirement related to sexual orientation applied to a post of cleaner, gardener or secretary’.

In respect of the second test (the nature of employment, etc), the court stated that each case had to be taken on its merits and that ‘one has to apply the criteria and see whether or not they are fulfilled’. The derogation from the equal treatment principle contained in Regulation 7(3) had to be interpreted in accordance with EU law. In accepting the submission from counsel to the secretary of state, the court also seemed to accept that the regulation could not be used to refuse employment to or dismiss a gay shop assistant in an evangelical bookshop, for example, although this conclusion is implicit in the decision rather than clearly stated.

On the face of it, therefore, although technically the trade unions lost the case, they achieved their objective in severely limiting the application of Regulation 7(3). However, the regulation remains in place and I am not convinced that all the arguments about the applicability of the first test (see above) were fully explored in the decision. This is an area to watch in future, and it would be good for the legal departments of trade unions to prioritise supporting cases on this issue, providing they have strong enough merits.

Furthermore, it would be interesting to seek the views of gay Christian groups about Regulation 7(3) because it seems designed to allow the Church of England to discriminate against gay clergy on the grounds of their sexuality if they remain sexually active. Surely, the government should not involve itself in the current splits over ordination of gay clergy in the Anglican communion by tailoring legislation to allow for the views of bigots within the church to be exercised in the treatment of its gay ministers and aspiring ministers.

The Equality Bill

Turning to the new Equality Bill in parliament, I have not been able to study it and am therefore entirely reliant upon the comments on the Humanist Society. The Bill seems to extend the regulations into the area of goods and services, and the Humanist Society welcomes this, but expresses strong opposition to the exemptions for church organisations and schools, and believes that the churches will be able to harass pupils as a result. I cannot comment further except to say that the Humanist Society seems to think churches pose a threat and their liberties need to be curtailed so that they are consistent with secular organisations. Its public statements about religions are openly hostile.

Finally, I want to address a recent human rights case on the issue of religious belief and expression in the UK which attracted substantial amounts of media attention: The Queen on the application of SB v Headteacher and Governors of Denbigh High School. Cherie Blair QC appeared on behalf of the claimant, a Muslim girl who had been asked to remove her jilbab (almost head to toe covering) because it did not conform to the school uniform. It should be noted that the school uniform in question had been approved for Muslim girls by the local Mosque. The girl who brought the claim was seen by the local Muslim community as coming from a family with extreme views which, if they prevailed, they said, would oppress many fellow Muslims who possessed a less restrictive view of the faith.

The judges clearly acknowledged that this was a legitimate concern. However, they came to the conclusion that the girl’s human rights had been violated because the school could not justify suspending her. Because her view was the genuine view of a minority of south Asian Muslims in this country, the school by law had to be able ‘to justify the limitation on her freedom created by the school’s uniform code and by the way in which it was enforced’.

On a national level, it is only consistent with human rights to restrict the expression of religious belief if it necessary to do so to preserve the democratic system, the constitution, or for national security reasons. Since the UK has no constitution, is not a secular state, and has no reason to ban the wearing of headscarves on security grounds, these reasons do not apply. However, the particular circumstances of the case, as well as national legal and constitutional considerations, also have to be taken into account when deciding if the school’s decision to limit the claimant’s rights was justified.

On a question of fact, the court found that the school did not initiate its deliberations by acknowledging the claimant’s right to express her religious opinions by wearing the jilbab before considering whether the school had a compelling reason to limit her human rights. Instead, in the trenchant words of Lord Justice Brooke, the school ‘started from the premise that its uniform policy was there to be obeyed: if the claimant did not like it, she could go to a different school’. Accordingly, the court found in the claimant’s favour, and it should be noted that she sought court declarations that her human rights had been infringed rather than any damages which would benefit her financially. The court gave her these declarations.

Controversial judgement

However, the court did suggest how the jilbab might be banned legitimately by a school in the future. The court recommended that schools should reflect on the following considerations, among others: whether allowing the jilbab would lead to other religious groups insisting on different clothing, thereby undermining the school’s policy on inclusion; whether it was likely to intimidate or humiliate more moderate Muslims; whether it would lead to conflict between different religious groups at the school; and whether the school could reconcile ‘its wish to retain something resembling its current uniform policy with the beliefs of those like the claimant’.

It is worth reading the judgement in its totality. It is remarkably accessible for a legal judgement, and more lucid and entertaining than many.

Having said that, and with the deepest respect to the eminent judges who made the decision, a more cynical commentator might conclude that the issue was a hot potato which was juggled in the court and thrown back to schools to sort out. When making its decision to exclude the claimant, I suspect the school did not expressly consider its justification for limiting the claimant’s human rights because it considered that to be too controversial for the headteacher and the board of governors. Instead, it decided to restrict itself to whether or not school rules had been infringed and whether those rules were consistent with the school’s policy on multiculturalism.

Furthermore, if a school were to take the feelings of moderate Muslims into account, it would need to consider formal representations from the community. It is my view that these are unlikely to be forthcoming in a quasi-judicial setting, for a number of reasons, including fear of Islamicists and mistrust of the dominant culture.

So the decision does allow for the wearing of the jilbab to be challenged in this country if worn in schools, but the process laid down by the court for doing so is unlikely to be used in practice by school governing bodies for fear of stirring up controversy.

Accordingly, since the courts will not take a view, and schools are unlikely to tackle the issue, parliament should do so. However, the implications of dealing with this issue are so wide ranging, it is difficult to imagine any political party having the stomach to do so. As usual, the matter will be subject to the usual absent-mindedness which so often characterises the ad hoc development of the English constitution.

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