Religious Freedom, Religious Discrimination and the Workplace

by Lucy Vickers

Overview

Discrimination, on grounds of religion and belief, within the workplace raises many complex and contested issues, not least because of the multi-faceted nature of religious discrimination. Discrimination can occur where secular employers refuse to employ or accommodate religious employees, as well as where religious groups refuse to employ those of a different religion, or those of the same religion whose interpretation or practice of the faith differs. Adding to the complexity is the fact that freedom of religion is protected as a fundamental human right which may be enjoyed by both religious individuals and religious groups. Although it is not an absolute right, its importance to individuals means that religious freedom may warrant a degree of protection in the work context. This book considers the extent to which religious interests are protected in the workplace, with particular reference to the protection against religious discrimination provided by the UK/EU Employment Equality (Religion and Belief) Regulations 2003. It establishes a principled basis for determining the proper scope of religious freedom at work, and considers the interaction of freedom of religion with the right not to be discriminated against on grounds of religion. The book takes a comparative approach, considering the position in other common law jurisdictions, and within the European Union. It locates the debate surrounding these issues within a philosophical and theoretical framework in which the importance of freedom of religion, and its role within the workplace, is fully debated.

Product Details

ISBN-13:	9781841136875
Publisher:	Bloomsbury Academic
Publication date:	04/09/2008
Pages:	244
Product dimensions:	6.10(w) x 9.10(h) x 0.90(d)

About the Author

Lucy Vickers is a Professor of Law and Director of the Centre for Legal Research and Policy Studies at Oxford Brookes University.

Table of Contents

Acknowledgements vii

Table of Cases xv

Table of Legislation xxv

1 Religious Discrimination and Religious Freedom at Work 1

I Introduction 1

II Religion in the UK 3

III Experience of Discrimination 5

IV Tackling Religious Discrimination 8

Conflicts Arising from the Exercise of Religious Freedom at Work 8

Resolving the Conflict in the Workplace 10

2 Seeking a Definition of Religion and Belief 12

I What is 'Religion'? 12

Content-based Definitions 15

Defining Religion by Analogy 17

The Purposive Approach to Definition 18

Defining Religion: The Approach of the UK Courts 20

II Defining Belief 22

Defining Belief: The Approach of the UK Courts 24

III Conclusion 31

3 Protecting Religion at Work 32

I Introduction 32

Particular Protection for Religion? 33

Terminology: Rights or Interests? 35

II Why Protect Religious Interests? 37

Religious Reasons 40

Conflict Resolution and Social Inclusion 41

'Aesthetics' 43

Social Cohesion 43

Autonomy and Dignity 45

The Content of Religious Interests 49

Religious Interests and Group Rights 50

Freedom of Religion and Freedom from Religious Discrimination 52

Conclusion 52

III Protecting Religious Interests in the Work Context 53

Should Religious Interests be Protected at Work? 53

The 'Right to Resign' 54

The Case for Protection in the Workplace 55

Economic Benefits of Work 56

Non-Financial Benefits of Employment 56

Protecting Religion for Equality Reasons 59

Contracting Out 62

Stepping Out of the Employment Relationship 62

And Yet… The Residual Protection of the 'Right to Resign' 63

Conclusion 64

IV The Proportionality Equation: Religion and the Workplace 65

Competing Rights 67

The Equality Rights of Others 67

The Negative Aspect of Freedom of Religion and the Protection of Religious Interests 68

Rights to Private Life, Freedom of Speech and Freedom of Association 68

Economic Efficiency 69

Employer Autonomy and Reputation 70

An Interest in Being in Work 72

The Right to be Free from Offence 74

Contextual Issues 79

The Public/Private Divide 79

Public Sector Employers 80

Private Sector Employers 82

Work as a Public or Private Space 83

Religious Manifestation or Religious Motivation 85

Organic or Functional View of the Religious Workplace 87

The Meaning of Equality 88

Socio-Political Context 91

The Role of the State 92

V Conclusion 93

4 Freedom of Religion at Work: The European Dimension 97

I Freedom of Religion and the European Convention on Human Rights 97

Protection under the Human Rights Act 1998 97

Protection of Freedom of Religion Under the European Convention on Human Rights 101

The Application of the Convention to the Workplace 101

Treaty Basis of the Convention 104

Contracting Out of Protection 104

Freedom of Religion Under Article 9 105

Manifestation of Religion 107

Article 9(2) 110

Application of Article 9(2) in the Workplace 121

Protection Against Religious Discrimination Under Article 14 131

Article 14 in the Employment Context 132

Conclusion: Protection under the Convention 134

II The EU Framework: EU Directive 2000/78 135

Directive 2000/78 136

Definition of 'Religion' 138

Determining an Individual's Religion or Belief 139

Potentially Indirectly Discriminatory Requirements 140

Genuine Occupational Requirements and Religious Ethos Employers 144

Discrimination on Other Grounds 148

Conclusion: The EU Directive 149

III The Interaction of the Two Courts 150

Reconciling Equality and Human Rights: Reciprocal Interpretation? 152

The Specific Situation Rule 154

The Value of Communal Interests 155

The Margin of Appreciation 155

Conclusion: The Role of Proportionality 157

5 Protection Against Religion and Belief Discrimination in the UK 159

I Protection Under the Equality Act 2010 160

Definition of Religion and Belief 160

Coverage of the Equality Act 2010 161

Direct Discrimination 164

Indirect Discrimination 165

Justification 169

Proving Justification 172

The Distinction Between Direct and Indirect Discrimination 173

Exceptions to the Non-Discrimination Duties 174

Religious Requirements that Discriminate on Other Grounds 177

Special Exceptions for those Employed for the Purposes of an Organised Religion 179

Exceptions to Non-Discrimination in Northern Ireland 183

Determining Whether a Person Meets a Religious Requirement 183

Ascertaining an Organisation's Religious Ethos 185

Victimisation 186

Harassment 186

Positive Action 191

Applying the Equality Act 2010 to the Workplace 192

Hours of Work 192

Sunday Working and Shop Workers 194

Dress Codes and Religious Symbols 195

Lifestyle Requirements 204

Refusal of Work Tasks 207

Sharing Religious Views at Work 209

The Public Sector Equality Duty 212

II Religious Schools 214

III Protection of Religious Interests That are Not Protected by the Equality Act 2010 222

IV Conclusion 225

6 Accommodating Religion and Belief in the Workplace: North American Perspectives 228

I United States of America 229

Meaning of Religion 229

Direct and Indirect Discrimination 231

Bona Fide Occupational Requirements and the Ministerial Exception 233

Duty to Accommodate 237

Harassment 244

Conclusion 247

II Canada 248

Determining a Person's Religion 249

Bona Fide Occupational Requirements and the Duty to Accommodate 250

The Duty to Accommodate and Undue Hardship 251

Religion: A Bona Fide Occupational Requirement? 255

Religious Employers 256

Religious Requirements that Discriminate on Other Grounds 257

Conclusion 260

III Conclusion 261

7 Conclusion: Religious Freedom at Work 263

I Protecting Religious Work 264

II A Duty of Reasonable Accommodation? 265

III Remaining Difficulties 274

False Consistency? 275

False Objectivity? 277

IV Conclusion 281

Index 283

Editorial Reviews

"Review of the First Edition
...a thoughtful and wide-ranging survey, enhanced by a useful section on comparison with other jurisdictions...It is not possible within the confines of a book review to do justice to the rich and fascinating range of arguments propounded in this work." --Industrial Law Journal

"If you have any professional or academic interest whatsoever in the interactions between employment law and religious manifestation, Professor Vickers' book is a must-read." --Law and Religion Blog

"Overall, the book delivers a solid overview of the challenges arising from the conflicting rights and interests related to religion in the context of employment. It gives the reader insight into possible solutions in specific situations. Therefore, it is a must-read for anybody who wants to deepen their knowledge on the theoretical foundations and interconnections of religious freedom and discrimination." --European Journal of Social Security

From the Publisher