Defining the limits of religious protection in the workplace

The four religious discrimination cases heard before the European Court of Human Rights yesterday have aroused strong emotions. That makes for exciting news coverage but unfortunately gets in the way of rational analysis. The cases are backed by a Christian lobby group, but there is more substance to them than the rather flimsy claims of Christian ‘persecution’ made by public figures who should know better.

The four claimants - Eweida, Chaplin, Ladele and McFarlane - claim that UK law has failed to protect their right to manifest their religious beliefs under article 9 of the European Convention of Human Rights and failed to protect them against discrimination based on their religious beliefs under article 14.

The cases divide neatly into two pairs. Eweida and Chaplin are concerned with appearance - specifically an employee’s right to wear a visible religious symbol at work. Ladele and McFarlane are concerned with the extent to which an employee is entitled to opt out of tasks or responsibilities that conflict with his or her religious or philosophical beliefs. Significantly, the Equality Commission has intervened with a submission in support of at least some aspects of the claims. In particular the commission argues that the UK courts have failed to give due consideration to human rights issues when considering discrimination cases based on religion or belief.

‘Manifestation’ of belief

A key issue identified by the commission is what counts as a ‘manifestation’ of religion or belief for the purposes of article 9. One reason the domestic courts were not swayed by the human rights arguments put forward in these cases is that the Strasbourg court has tended to stress that not everything motivated or inspired by a religious belief is protected by article 9 (see Sahin v Turkey (2007) 44 EHRR 5) and that a manifestation of belief is only protected if it can be shown to be an essential requirement of that belief rather than merely behaviour which is prompted by it (Arrowsmith v United Kingdom (1980) 19 DR)). Influenced by this restrictive approach, the UK courts have tended to give short shrift to claims where the expression of religious belief has clashed with a requirement imposed on an employee by his or her employer (Copsey v WWB Devon Clays Ltd [2005] EWCA Civ 932).

The commission argues, however, that the more recent case law of the European court shows a wider approach to what counts as a ‘manifestation’ of religious belief. It argues that a manifestation should be protected if it is “motivated or inspired by a genuinely held belief that attains a certain level of seriousness and cogency and is not unreasonable”.

If this principle is accepted by the court, that could have a serious impact on future cases. The implications stretch far beyond jewelry or religious objections to same-sex partnerships. All kinds of behaviours in the workplace might be motivated by a religious or philosophical belief - from objections to working on certain days, to a refusal to handle products such as alcohol or particular types of meat. It would only be a matter of time, for example, before a case arose in which an employee’s philosophical beliefs concerning the environment were cited as justifying a refusal to comply with an employer’s policy on business travel. Currently, employment tribunals are rather easily persuaded to accept business justifications when employees suffer a disadvantage for refusing to do work which conflicts with their beliefs. However, if measures taken by an employer are to be regarded as potential breaches of article 9, then the balance may shift considerably. At the very least, employers will be on the back foot when an employee raises a religious or philosophical objection to some aspect of their job.

No stand-alone right

The cases are also being argued on the basis of article 14 - which requires non-discrimination in areas covered by convention rights. The Equality Commission argues that the UK courts have been too easy to find justification in cases of indirect discrimination based on religion or belief. Importantly, article 14 does not create a stand-alone right, but only applies in areas which are covered by the convention.

Issues around religion and belief are clearly encompassed by article 9, but workplace issues surrounding the other protected characteristics are less obviously covered. Success for the claimants on this point, therefore, could mean that there would be a two-tier approach to indirect discrimination, with a higher standard of justification in religion and belief cases.

All this is, of course, speculation. The court’s decision may ultimately reassert the rights of employers to set their own policies - and stress that an employee who is free to leave and find more congenial work elsewhere suffers no human rights infringement. In the meantime, however, the law on religion or belief discrimination remains in a rather unwelcome state of limbo.