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Northumbria Law School
Elisabeth Griffiths
Would the ‘reasonable accommodation’ of
religious belief in the workplace prevent a
hierarchy of protected characteristics from
developing?
Northumbria Law School
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The public sphere of working life can clash with religious belief
and the manifestation of that belief in a number of ways
Employers can struggle to understand what is required when
trying to follow cases well publicised in the media
Evidence of religious employees grappling with the sometimes
competing requirements of their jobs and their religious belief
The concept of indirect discrimination is not always accessible to
employers
There is debate that a hierarchy of protected rights is developing
because there has been no/limited success in the tribunal for
religious discrimination cases
Is a duty of ‘reasonable accommodation’ the answer?
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How might a UK workplace be affected by an employee’s
request to have their religious beliefs accommodated in the
workplace:
• Time off: UK workplaces are organised around the
majority Christian calendar, Good Friday, Easter Sunday
and Christmas Day – difficulties for minority religious
groups/individuals who do not share the same religious
holidays
• Dress Codes and Uniform: Religious dress /symbols
/jewellery
• Provision of space for religious observance
• Food and diet
• Reorganisation of duties to accommodate conscientious
objection
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Is there a hierarchy of protected rights? What does it look like?
Equality Act 2010 brings all protected characteristics in to one
piece of legislation s. 4. All separate ‘silos’ and equal before the
law? No one more important than the other.
But are all protected characteristics equal and should they be? is
it inevitable that there are differences?
Issues of inherent immutable characteristics as opposed to
notions of choice
Is religion treated differently? Is there a lack of consistency in
how cases of religious discrimination are decided as opposed to
other protected characteristics?
Can be discriminated against because of your religion and you
can discriminate against others because of your religion.
Religion vs Gender, Religion vs Race, Religion vs Disability,
Religion vs Sexual Orientation
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Disability is already different – adding to this notion of a
hierarchy. Only protected if you have a disability not if you do
not. Duty on employers to make reasonable adjustments, no
other protected characteristics has this duty
Following Eweida and others v UK interpreting indirect
discrimination in accordance with Article 9 will require an
employer to justify its PCPs and any decisions it makes about an
employee’s request to have their religion or belief
accommodated in the workplace on the basis of individual belief.
The duty to make reasonable adjustments for disability in s 20
Equality Act 2010 requires just that. The employer must take into
account a number of factors in assessing whether the adjustment
is reasonable but it is very much based on individual need rather
than any notion of all disabled people should be treated the
same.
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The religious beliefs of workers and the right to manifest
that belief are protected by law:–
• Framework Employment Directive (2000/78/EC);
• Equality Act 2010 – direct/indirect discrimination;
• Article 9(1) European Convention on Human Rights;
Article 9(2) restricts this freedom in so far as that is
necessary in a democratic society in the interests of
public safety, protection of public order, health or
morals, or for the protection of the rights and freedoms
of others;
• Recent case law – Eweida and others v UK.
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S. 19 Equality Act 2010 – neutral provisions in the workplace may
indirectly discriminate against individuals who choose to manifest their
religion through dress, observance of religious holidays, requests for
time off for worship and so on,
S 19 requires group disadvantage – if no one else shares your belief or
how you choose to manifest that belief then any Provision, Criterion or
Practice (PCP) in the workplace that disadvantages you because of your
religion or belief will not be indirect discrimination. The employer will
not have to go on and justify their decision or the PCP,
Solitary disadvantage is not protected, although there is now a
response to this in Eweida
Religion or belief is subjective and how you to choose to practice it can
be individual and may not be seen as mandatory within your religion so
maybe there is also a hierarchy of religions and clashes between how
they are protected – again would reasonable accommodation allow for
individual need
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Lucy Vickers discusses the notion of an emerging hierarchy
in her 2010 article in Eccles. Law J., 12, 280-303.
Literature refers to the way in which the protected
characteristics are inherently different. Many refer to
religion being a choice as Sedley LJ did in Eweida.
Continues with an interesting analysis of the issues in her
chapter on religious discrimination in ‘Migrants at Work:
Immigration and Vulnerability in Labour Law’ 2014 Cathryn
Costello and Mark Freedland.
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Matthew Gibson – applies US and Canadian models of
reasonable accommodation to UK case law to suggest this is
the way forward C.L.J 2013, 72(3), 578-616
Gwyneth Pitt – Eweida and others v UK falls short of
suggesting that employers have a duty of reasonable
accommodation and it should be strongly resisted. Pitt
argues this is about a hierarchy between direct and indirect
discrimination not between protected characteristics; Ind
Law J (2013) 42 (4): 398
Robert Wintemute’s analysis of accommodation (2014)
77(2) MLR 223-253 – “workable test for assessing
justification” based on a liberal harm analysis and proposing
a middle path.
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• What I am particularly interested in is what
can employers do about this and what
should they do? Employers are the ones who
have to balance these competing interests
and accommodate diversity in the
workplace.
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Why should employers accommodate religion (or any protected
characteristic) in the workplace?
Growth in UK immigration
Increased internationalisation and diversity of the workforce
Allows for individual consideration of religious conviction
Respect for dignity and religious liberty
Allows for co-existence of protected characteristics rather than
competing hierarchies
Raises ethical issues particularly in the day to day operations of a
business
Improved employee well being
Improves a company’s public image
Helps with recruitment and retention of staff
Social inclusion – see Hugh Collins 66 Mod. L. Rev. 16 2003
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• How should employers decide? What is relevant to
the notion of reasonable accommodation?
• Employer
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Cost – direct and indirect
Undue burden on the business – disruption and wider
impact, (too much regulation – real or perceived)
The size of the employer
Administrative resources of the employer
Health and safety considerations
The inter-changeability of the workforce
Public relations
Notion of harm – direct and indirect
Equity
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• What is relevant to the religious employee?
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Morale problems and disadvantage to the employee if
refused
The nature of the job and the extent of the
responsibilities aligned to that job
Exclusion from the job market altogether especially
problematic for minority religious groups where there
may already be a lack of social inclusion e.g. Muslim
women
• What is relevant to third parties/other
employees? – competing interests, substantial
interference with the rights of others, morale
problems
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• USA: Under Title VII of the Civil Rights Act an
employer has the legal duty to reasonably
accommodate the practices, observances or beliefs
of his or her workers unless doing so would
amount to an undue hardship. This has been
interpreted as a de minimis standard – cost to the
employer “something beyond inconvenience”.
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• Canada: reasonable accommodation crosses all
protected characteristics in anti-discrimination law.
Employers know they have to accommodate if
there is discrimination. The next question is would
the employee’s accommodation impose “undue
hardship” on the employer.
• Would this work in the UK and would it remove
this notion of hierarchy as the individual need of
the employee is taken into account?
• UK position in Europe – already a difference e.g.
France
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EHRC research report 84, 2012 – areas of difficulty – competing
claims, fear of litigation, assessing proportionality, uncertainty as
to what is protected by law; Alice Donald et. al.
Solitary expression of religion vs group disadvantage
Mandatory religious requirements vs personal preference
Perception that religion or belief comes below sexual orientation
in the hierarchy of protected rights
Protection of non-innate and chosen beliefs vs innate
characteristics
It is argued that the introduction of a duty of reasonable
accommodation would overcome some of these issues. Research
suggests that is what employers want (2012 EHRC) although it
should be emphasised that the sample is small in this research
(47 respondents) and the notion of reasonable accommodation
was not put to employers as a legal duty as in the Canadian
example.
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2012 EHRC research 70% of the respondents were from the
public sector, 23% from the private sector. Almost 90% of
the respondents were from large organisations with 500 or
more staff. 89% had their HQs in the UK.
How would the answers differ if more SMEs were
interviewed? Should the views of a larger number and
wider range of employers be sought particularly in the
private sector.
Case study analysis about management decisions.
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2015 EHRC call for evidence
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Conclusions??
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More analysis needed