Strasbourg on freedom of religion

Heathcliff O'Malley: Rex Features
By James Wilson

The American humourist PJ O’Rourke once said that it was funny how those who wanted to share their religious views with you, never wanted you to share yours with them. The European Court of Human Rights is about to have to share its views with all of us: this week it is hearing four cases on religion and the law. Each will be well known to all British human rights lawyers. The ECtHR’s summary provides:

“The applicants, Nadia Eweida, Shirley Chaplin, Lilian Ladele and Gary McFarlane, are British nationals (…)

All four applicants are practising Christians who complain that UK law did not sufficiently protect their rights to freedom of religion and freedom from discrimination at work. Ms Eweida, a British Airways employee, and Ms Chaplin, a geriatrics nurse, complain that their employers placed restrictions on their visibly wearing Christian crosses around their necks while at work. Ms Ladele, a Registrar of Births, Deaths and Marriages, and Mr McFarlane, a Relate counsellor, complain about their dismissal for refusing to carry out certain of their duties which they considered would condone homosexuality.”

Thus the four cases fall into two categories, within the broad heading of religion and employment.

In the first category, the applicants wished to wear religious symbols whilst at work (the symbols cases). In the second category, the applicants did not wish to carry out duties which might have led to an inference that they condoned homosexuality (the refusal cases). The two categories share common issues but are by no means identical.

One might be forgiven for thinking that the symbols cases were a relatively trivial matter. Almost no-one would be offended by someone wearing a cross, and if they were they should be told to do something useful with their time.

The answer, however, is that we are back in the realms of legal principle, and whilst the crosses might well be seen as harmless symbols that merely reflect a mainstream faith, if they are permitted as a legitimate departure from the employer’s otherwise secular uniform policy, someone is bound to turn up next week wanting to wear something offensive and citing religious grounds for doing so.

One possible response is that relatively inoffensive symbols such as crosses should be permitted, but not ones that are blatantly offensive. This is sometimes phrased in the terms of “reasonable accommodation”,  by which the courts attempt to judge whether and to what extent employers should have to make allowances for employee’s beliefs.

There are several problems with the court trying to decide what is offensive and what is reasonable. Is it to be judged from the perspective of the victim, the perpetrator or a neutral observer?

Even before reaching that stage, one has to determine what constitutes a “religion” in the first place. Recent disputes over druidry and Scientology show that this is by no means a simple question. One judicial effort in this country was Nicholson v Grainger plc [2009] All ER (D) 59 (Nov)), where the Employment Appeal Tribunal had to decide whether a belief in “man-made climate change” equated to religious belief for the purposes of anti-discrimination provisions. The tribunal ended up with a Delphic four-stage test wholly unsuitable to providing clear guidance to citizens by which they might order their affairs; in other words, a ruling not compatible with the rule of law.

Much the better approach in discrimination cases would be for courts not to decide whether any particular employee has been discriminated on religious grounds as such, but rather on any grounds (religious, gender or whatever) irrelevant to their employment. In Nicholson v Grainger, therefore, the court should simply have been required to ask what the reason was for Mr Nicholson’s treatment by his employer, and then to consider whether that reason was relevant to his employment or was instead arbitrary or otherwise oppressive behaviour by the employer.

Similarly, in the symbol cases, the question should be whether there was anything about the employer’s uniform policy, which did not allow for crosses or other jewellery to be worn openly. Ordinarily, employers should be able to set whatever uniform policy they wish, and it should then be for prospective employees to be made aware of the policy before they start.

One point that was made in the symbol cases at an earlier stage was that Christianity does not actually anywhere mandate the wearing of a cross, and it should in any event have been possible for the employees to wear it discretely, under the uniform. That, however, is no answer, since the courts are not in a position to interpret the tenets of any particular faith and so cannot be asked to adjudicate whether or not faith x really does require garment y, or whether garment y is just a social and cultural construct.

It would be a tidy solution to allow employers to set any uniform requirement they wish and leave it at that. The problem is that some religious mandate the wearing of certain clothing, such as the veil, which cannot be hidden in such fashion. Can we really envisage an employer being entitled to refuse to employ anyone who wishes to wear a Muslim headscarf, or a Jewish Kippah?

Accordingly the courts may be required to engage in a degree of palm tree justice, and hold that irrespective of any uniform policy employers should indeed make a “reasonable accommodation”, under which they will be permitted to ban clothing and the like on health and safety grounds, but required to allow certain religious symbols and garments if the employee otherwise complies with the uniform policy. This should not impose a burden on the employer to adjust its uniforms; it would be for the employee to wear something in addition if he or she chose to do so. It is a grey area, however, and therefore it will be interesting to see what Strasbourg makes of it.

The refusal cases on the other hand admit of a more straightforward answer. Both employees accepted employment with an organisation with a publicly announced diversity policy, requiring provision of services to the public irrespective of various characteristics including race, gender and sexual orientation. The employees were therefore bound by their contract not to discriminate on those prohibited grounds. If they disagreed, they should have found a different job. Moreover, if they had wanted the same exemptions on secular grounds they would have received the same answer; the diversity policy was not aimed at suppressing religion but rather suppressing discrimination on any ground.

Imagine for a moment that the employees proclaimed that their religion prohibited them dealing with Jews or Muslims, or otherwise being seen as “condoning” them. Or imagine if a judge suddenly decided that his religion dictated that a woman’s evidence was of less importance than that of a man. They would be given a short answer. It will be most surprising if Strasbourg comes to a contrary position.

Meanwhile it will be interesting to see what influence the Strasbourg judgment, if it arrives first, will have on the Supreme Court when it comes to hear the well-known case of Peter and Hazelmary Bull, a couple who refused to allow a same-sex couple to sleep in a double room in their B&B. I suspect the answer will be the same as with the refusal cases above: the Bulls would not have been permitted to discriminate on non-religious grounds, and will therefore find their admittedly indirect discrimination banned on the same grounds. Either way, there will be much food for thought from both the Supreme Court and their colleagues in Strasbourg on a subject which seems rarely out of the headlines in modern Britain.

Comments

  1. Sean Fear says

    It is paradox though, to argue that an employer has the right to deny employment to someone who wishes to wear a cross at work, but that a guest house owner does not have the right to deny a double bed to a same sex couple.

    Both the employer and the guest house owner are arguing for the right not to have business dealings with people whose behaviour they find objectionable.

    Either one accepts that classical freedom of contract applies in each case, or one is arguing that some groups merit greater legal rights than others.

  2. says

    Except it’s not a paradox at all.

    For one thing, the employers in Eweida or Chaplin did not want to “deny employment” to anyone who wanted to wear a cross at work. Neither employee was dismissed, for a start. The problem was that they wanted to wear a necklace, not that they wanted to manifest their faith. In Eweida’s case, visible jewellery was contrary to the BA dress code (which has now been relaxed in any case). Chaplin was a nurse working with disturbed patients and the hospital considered a chain round the neck, which could be grabbed by a patient, to be a safety risk. It tried to accommodate her by suggesting she wore a brooch, but the employee would not accept this. In neither case did the employers have anything against Christians, and they made efforts to try and accommodate the employees’ wishes. In neither case was the employer trying to justify its actions based on religious views or based on prejudice against a particular religion. I have written about their cases here http://mrsmarkleham.wordpress.com/2011/08/26/making-sense-of-the-ehrcs-stance-on-religion/

    Whereas in Hall v Bull the hotel owners simply did not want homosexuals sharing a double bed. This was a simple case of direct discrimination based on sexual orientation, and the fact that their discrimination was a direct result of their faith is neither here nor there in the eyes of the law. I have written about their case here http://mrsmarkleham.wordpress.com/2011/01/21/why-the-court-was-right-to-rule-against-the-christian-bb-owners-who-refused-a-double-bed-to-a-gay-couple/

    Freedom of contract in relation to employment or in the provision of goods and services is tempered by the principles of discrimination law, as it has been tempered by other principles over the years (e.g. by the Unfair Contract Terms Act, the Sale of Goods Act, the Employment Rights Act and countless others).

    But this does not mean that one group’s rights outweigh the other. The argument made by the right wing press that gay rights are trumping religious (or more specifically Christian) rights is simply not the case. If gay hotel owners had refused a bed to a Christan couple, the result would have been the same. There is also a case in which the dismissal a lesbian employee who refused to remove a badge saying “lesbians ignite” was held to be fair. Although that case pre-dated laws on religious or sexual orientation discrimination, the result would (and should) have been the same of any badge with a proselytising religious message. The law allows employers to enforce a dress code, provided it is proportionate and applies to everyone equally, even if not everyone agrees with it for religious or other reasons.

  3. Alex says

    The employment contract should, in my view, be distinguished from other contracts because of the power relationship between the buyer and seller of labour time.

    The power usually rests with the employer who often enjoys legal rights to exercise this power at their discretion over their employees. In my view, this power must be exercised responsibly and rationally, just as HRA now requires the State to act rationally in its transactions with citizens.

    So I would distinguish between the B & B case, which is a market transaction between two equal parties, and the cases where an employer is banning employees from wearing religious jewellery. So I am not sure that I agree with Sean that the cases should be treated identically as cases of classical freedom of contract or not, as the case might be. The classical freedom of contract could validly be applied to the B & B case, but not to the employment cases.

  4. says

    My point regarding crosses was more that it was a de minimus issue that no-one should have bothered about.

    If indeed one had freedom of contract in the classical sense, one would have to do away with all anti-discrimination legislation, and employers would be free to hire only certain religious groups etc and offer their services to a restricted section of the public.

    I’m not sure it’s precisely the same thing though. There isn’t much justification for a business saying no gays etc in terms of its customers. On the other hand, requiring a uniform with no visible religious symbols – or indeed political slogans etc – might exclude a potential employee who found it impossible to accept not wearing something in public, but on the other hand it means that the business would be presenting a neutral face to the public.

    To take extreme examples, saying a B&B cannot display a sign saying “no Blacks or Irish” is consistent also with saying that an employee cannot wear a KKK uniform. That doesn’t quite hold for an employer saying someone cannot wear an inoffensive religious item or symbol, hence the point about reasonable accommodation.

    Incidentally one point I perhaps didn’t make strongly enough in the post is that there are circumstances where an employer would patently be justified in imposing restrictions on other grounds, eg requiring protective headgear in a dangerous operating environment. Or – contrary to an employment tribunal decision of late (http://www.dailymail.co.uk/news/article-1027029/Hairdresser-ordered-pay-4-000-Muslim-woman-refusing-job-wears-headscarf.html) I would have thought it justifiable for a hairdressing salon to require uncovered hair and for each of the employees to have some sort of trendy style, since that’s the business they’re in.

  5. Adam says

    Sean:

    You say “[e]ither one accepts that classical freedom of contract applies in each case, or one is arguing that some groups merit greater legal rights than others”.

    In the symbol cases, the employees *had already contracted* and were in breach of the uniform policy which presumably comprised a term of that contract. If you argue that the employers had no right to terminate that contract as a result of the employees’ breach, then it is you who must argue for greater legal rights for the Christians in these cases – a special religious defence for breach of contract.

    This is manifestly different from a case where a contract has not yet arisen, and is refused on discriminatory grounds. There is no paradox here.

  6. says

    The other distinction is that assuming that the employer bans all symbols – political, religious, cultural, whatever – from its uniform. This does not discriminate against any particular group because it applies to all. The point about the B&B case is that the owners were indirectly discriminating against a class of the population who could never meet their requirement of marriage. As to the Relate Counsellor and the Registrar, again their employers sought to make servics available to all and would not allow employees to pick and choose. As with Adam’s point, this was an existing policy to which prospective employees were asked to sign up to, and can be assumed to have done so voluntarily.

  7. Sean Fear says

    Adam, I suppose if the employer makes it plain at the outset that an employee must not wear a cross at work, then it’s unreasonable for the employee to complain about being barred from wearing a cross at work. OTOH, if a B and B owner makes it clear from the outset that he will not provide a double bed to an unmarried couple (but in the Bull case the judge made a finding of fact that this was not made clear to the claimants) then in my opinion, it’s unreasonable for the disappointed customer to complain.

    James Wilson, I fully accept that classical liberal theories about freedom of contract are totally incompatible with modern anti-discrimination/equality legislation. What’s fascinating though is that in Strasbourg, the government have relied on classical liberal arguments – namely, a dissatisfied employee is quite at liberty to look for another job if this one clashes with his religious beliefs

  8. Sean Fear says

    Alex, I think the balance of power between employer and employee does vary over time and between occupations. Clearly losing one’s job is much more serious than having one’s feelings hurt, by being denied a double bed.

    James, I think in the case of the B & B owners, the Bulls weren’t raising any commercial issue. Their objection was that they were being required to give support to behaviour they considered to be unethical. It’s similar to a private contractor declining to do work for an organisation whose principles he disagrees with, notwithstanding that organisation is willing to pay them the Market rate.

  9. JH says

    BA’s real problem was in allowing some religious symbols but not others. What it should have done was allow none, and left it at that.

  10. JH says

    By the same logic, the relate counsellor and the registrar can’t complain about a discriminatory employer, when all their employers were doing was applying a non discrimination policy …

  11. Paul de Mello (Jnr) says

    “the employees *had already contracted* and were in breach of the uniform policy which presumably comprised a term of that contract.”

    At the point they had signed the contract, the said policy was not in place. It was introduced afterwards. In the case of BA it changed its policy twice during the relevant period.

    When it comes to Freedom of Contract, I compare Religious Employees to Trade Union reps. Trade Unions are ultimately a manifestation of philosophical belief system(s). Industrial Action, be it withdrawl of labour or working to rule is a form of conscientious objection to the terms and conditions of the employer. In other contexts such disruption to obtain financial gain would be deemed blackmail. It is difficult to argue that reasonable accomodation for HRA Article 11 (Trade unions) rights should not also be granted to HRA Article 9 (faith) or any other HRA rights? I am under the impression that the original articles (1-13) of the European Convention are written in priority order (though I cannot recall where I read that)?

  12. says

    I would add, though, that I don’t think that one can justify treating employment contracts on the basis that they involve “unequal bargaining power” but that other contracts do not. Suppose a B&B was the only one in the area? Or suppose that the particular employment contract concerned a highly specialist role that only a very few people were able to do, and consequently could be said to have more power than any prospective employer?

    Others have argued that there is no underlying basis on which employment contracts should be treated as a separate class of contracts – see eg http://www.nzbr.org.nz/site/nzbr/files/publications/new-publications/status-eca.doc.htm – but I will leave that for another day.

  13. Alex says

    @James Wilson

    I agree that a contract for services does not differ significantly from a contract for goods and services.

    My point is that a contract of service does differs significantly from a contract for services, not because of unequal bargaining power between the parties but because a contract of service and a contract for services different in other significant ways.

    Unequal bargaining power between contracting parties frequently occur in markets, be they product or labour markets. This is to be expected and this inequality in bargaining power is not why I distinguish between employment contracts and other contracts.

    An employment contract differs from other contracts because it is incomplete, that is to say, it is dynamic and not very specific, and generally is of a indeterminate length. The employer’s bargaining power may have been less than the employee’s at the point of formation, but this is not the point.

    A contract of service has been described as a “relationship contract” to distinguish it from other “spot” contracts. A classical paradigm may be applicable to spot contracts, which are highly specified, time limited and (almost) complete. The parties to a spot contract retain their agency throughout the duration of the contract.

    Not so with an employment contract, (ie a contract of service). Under a contract of service the employee is obliged to surrender their labour power to the direction of the employer. The product or service arising from the employee’s labour belongs to the employer and the employee is unlikely to get the market value of their produce. The employee is not contracted to provide specified goods and services, even though they may have a job description. Instead, the employee is obliged to obey the employer’s instructions. That is what I meant by the power imbalance.

    Once employed, an employee is no longer in a market place. The fruits of an employee’s labour are not owned by them and they are unable to renegotiate their contract in response to daily or periodic market price variations of their produce. In effect, an employee has sacrificed their right to participate in the market place by agreeing to surrender their labour power to the employer. For me, employees need protections not given by contract law during their period of employment. So I do not believe that a classical freedom of contract paradigm should be applied to employees.

    The relationship between employer and employee is one of master and servant, not one between two equal contracting parties.

    Put more starkly, I suppose I question whether a contract arising from someone’s voluntary consent to become a slave should be examined using a classical freedom of contract paradigm, whippings and all.