Class wars? religion and (In)equality in the workplace

Industrial Law Journal

Volumn 38, Issue 1, 2009, Pages 1-29

  McColgan, Aileen ^a  

^a KING'S COLLEGE LONDON   (United Kingdom)

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EID: 61849178123     PISSN: 03059332     EISSN: 14643669     Source Type: Journal    
DOI: 10.1093/indlaw/dwn025     Document Type: Article

References (135)

1. Ss 1(2)(a) and 5(3) SDA, (1) and 3(4) RRA, 3A(5) DDA, and Regs 3(1)(a) and (2) of the SO Regs 2003, RB Regs 2003 and Age Regs 2006.
2. Ss 1(2)(b) SDA, 1(1A) RRA and Regs 3(1)(b) of the SO Regs 2003, RB Regs 2003 and Age Regs 2006.
3. Hampson v Department of Education and Science [1991] 1 AC 171
4. Relaxion Group plc v Rhys-Harper [2003] UKHL 33, [2003] ICR 867.
5. Later also the prohibition on discrimination on grounds of civil partnership.
6. Or requirements in connection with gender reassignment or marital or civil partnership status.
7. See the decision of the House of Lords in Davies v Presbyterian Church of Wales [1986] ICR 280 and its application through a succession of cases: Santokh Singh v Guru Nanak Gurdwara [1990] ICR 309
8. Birmingham Mosque Trust Ltd v Alavi [1992] ICR 435 and Khan v Oxford City Mosque Society (unreported, 1998).
9. See, however, Percy v Board of National Mission of the Church of Scotland [2005] UKHL 73, [2006] 2 AC 28 in which the House of Lords allowed a sex discrimination complaint by a woman minister. It should be noted that no doctrinal issue was pleaded in that case.
10. S 35 SDA exempts from the prohibition on discrimination the provision of services or facilities at a place restricted to men (or women) and 'occupied or used for the purposes of an organised religion, and the facilities or service are restricted to men [or women] so as to comply with the doctrines of that religion or avoid offending the religious susceptibilities of a significant number of its followers'.
11. S.4A RRA, Regs 7 SO Regs and RB Regs.
12. Reg 7(3) SO Regs.
13. Reg 7(3) RB Regs.
14. Respectively [2004] IRLR 430, [2007] IRLR 476 and case no. 1602844/2006, Cardiff Tribunal, 17 July 2006, unreported but available at http://thinkinganglicans.org.uk/uploads/herefordtribunaljudgment.html. The Respondent withdrew a notice of appeal in October 2008.
15. See my EUI working paper, 'Religion and (in)equality in the European framework' forthcoming.
16. Respectively [2007] IRLR 484 and case no. 2203694/2007, London Central Employment Tribunal, 3 July 2008, unreported.
17. 'Culture, Religion, and Gender' (2002) 4 International Journal of Constitutional Law 663, 664-5.
18. Ibid 670, most of the practices so defended, as she remarks, being 'gender specific'.
19. Ibid 669.
20. Nephi 12:23 'And I beheld, after they had dwindled in unbelief they became a dark and loathsome and a filthy people, full of idleness and all manner of abominations'; Nephi 5:21 'And he had caused the cursing to come upon them, yea, even a sore cursing, because of their iniquity. For behold, they had hardened their hearts against him, that they had become like unto a flint; wherefore, as they were white, and exceedingly fair and delightsome, that they might not be enticing unto my people the Lord God did cause a skin of blackness to come upon them'. Brigham Young, the second President of the Church, wrote in his Journal of Discourses (10:110) 'Shall I tell you the law of God in regard to the African race? If the white man who belongs to the chosen seed mixes his blood with the seed of Cain, the penalty, under the law of God, is death on the spot. This will always be so'.
21. [2008] EWHC 1535 & 1536 (Admin), [2008] All ER (D) 54 (Jul).
22. Dr Gerry Black JFS - A history of the Jews' Free School, London since 1732 (Tymsder Publishers: London, 1998). The decision records that one of the other prospective pupils whose application was rejected had been born to a mother who converted in Israel and was married by an Orthodox Rabbi in an Orthodox synagogue, but whose son was subsequently refused ritual circumcision by the London Beth Din (Jewish court) because his father, the man whom the converted mother had married, was a cohen (a member of a Jewish tribe by descent) who was prohibited by Jewish law from marrying converts. The very basis upon which the Beth Din rejected her conversion was that she had contracted a forbidden marriage so soon after it, such that her conversion was not accepted as having manifested full commitment to the tenets of the orthodox faith. She (the mother) herself taught at JFS but her daughter's application to JFS was rejected on the basis that she (the daughter) was not a Jew.
23. Religious Freedom, Religious Discrimination and the Workplace (Hart, 2007), 23.
24. Such a belief would not be analogous to the belief which the EAT ruled in McClintock v Department of Constitutional Affairs [2008] IRLR 29 was not covered by the Regs (and would not be post-amendment): Ie, the belief that placement of children with same-sex couples had not been shown to be in the children's best interests. According to the EAT, to constitute a belief there must be a religious or philosophical viewpoint in which one actually believes, rather than merely an opinion based on some real or perceived logic or based on information or lack of information available.
25. Sexual Orientation and Religion or Belief Cases, available from the TUC Web site at http://www.tuc.org.uk/extras/SORBreport.pdf (accessed 11 November 2008).
26. Ibid 24, discussing Baggs v Fudge, Case No 140011/05, March 2005.
27. Finnon v Asda Stores Ltd, Case No 2402142/05, August 2005, unreported.
28. Ibid 9.
29. [2006] EWCA Civ 659, [2006] ICR 1367.
30. n 18 above.
31. Domestic law has always been inclined to deal with accommodation cases in this way - see Ahmed v ILEA [1978] QB 31 in which the Court of Appeal, by contrast with the commission (in Ahmed v UK), accepted that there had been an interference, though the Court ruled that it was justified.
32. Citing Iacobucci J in the decision of the Supreme Court of Canada in Syndicat Northcrest v Amselem (2004) 241 DLR (4th) 1, 27 (para 52).
33. Para 22, also citing Metropolitan Church of Bessarabia v Moldova (2002) 35 EHRR 306, 335 (para 117): 'in principle, the right to freedom of religion as understood in the convention rules out any appreciation by the state of the legitimacy of religious beliefs or of the manner in which these are expressed'.
34. Para 56, citing Reynolds v United States (1879) 98 US 145
35. Late Corp of the Church of Jesus Christ of Latter-Day Saints v United States, Romney v United States (1890) 136 US 1.
36. Ibid, citing Re O (a minor) (medical treatment) [1993] 1 FCR 925
37. Re R (a minor) (medical treatment) [1993] 2 FCR 544.
38. [2003] 1 All ER 385, para 258.
39. X v UK (1977) 11 DR 55, which he regarded as exceptional, concerned an Article 9 complaint by a prisoner as to a Governor's failure to register his asserted religious affiliation which was dismissed as manifestly ill-founded on the basis that the facilities for manifestation of his religion to which registration entitled a prisoner were' only conceivable if the religion to which the prisoner allegedly adheres is identifi able [whereas]... in the present case the applicant has not mentioned any facts making it possible to establish the existence of the Wicca religion'. The applicant in X did not complain of any interference with his right to manifest his religion, or any failure on the part of the prison authorities to facilitate that manifestation in any specific way.
40. Citing Richards J in R (on the application of Amicus - MSF section) v Secretary of State for Trade and Industry [2004] EWHC 860 (Admin), [2004] IRLR 430, para 36,
41. and decisions of the High Court of Australia, the Supreme Court of Canada and the US Supreme Court in the Church of the New Faith case (1983) 154 CLR 120 especially 129-30, 174
42. Syndicat Northcrest v Amselem (2004) 241 DLR (4th) and Employment Division, Department of Human Resources of Oregon v Smith (1990) 494 US 872, respectively.
43. [2006] UKHL 15, [2007] 1 AC 100.
44. Paras 21 (per Lord Bingham) and 50 (per Lord Hoffmann), Lord Nicholls and Baroness Hale concurring on the basis that any interference was justified on the facts.
45. n 13 above.
46. above, overturned by the EAT (UKEAT/0453/08/RN, 10 December, 2008).
47. n 22 above, 10.
48. Ibid.
49. Ibid 47.
50. R (European Roma Rights Centre) v Immigration Offi cer, Prague Airport [2005] 2 AC 1 (HL), [2004] QB 811 (CA), [2002] EWHC 1989 (Admin) (QBD).
51. [2006] 2 AC 307.
52. [1990] 2 AC 751.
53. See, eg, the remarks of Simon Brown LJ (with whom Mantell LJ agreed) in the Court of Appeal in the Roma Rights case, n 43 above, paras 66, 69,
54. and (now elevated to the House of Lords) in the Gillan decision, n 44 above, paras 88-91.
55. [1996] QB 517.
56. See also Short v Poole [1926] Ch 66 (discrimination against red-heads would be irrational and therefore unlawful, but dismissing a woman teacher because she was married was not).
57. See also, on a different issue, the House of Lords' decision in Malcolm v Lewisham [2008] 3 WLR 194 in which, confronted with a limited statutory justifi cation to disability-related discrimination in the context of premises, the House chose to gut the concept of disability-related discrimination of all meaning in a move which involved, inter alia, ignoring clear Parliamentary guidance as to the intended meaning, as well as the unambiguous words of the statute.
58. (1982) 4 EHRR 126.
59. (1997) 23 EHRR CD.
60. (1993) 74 DR 93, 108.
61. See also the majority view in Copsey v WWB Devon Clays Ltd [2005] EWCA Civ 932, [2005] ICR 1789
62. and the views of Lords Scott, Hoffmann and Bingham in R (Begum) v Headteacher and Governors of Denbigh High School, n 36 above.
63. (2007) 44 EHRR 5.
64. 53.
65. n 502 above, para 108.
66. Ibid, para 109.
67. Ibid, para 116.
68. n 52 above, para 109,
69. citing, Gorzelik v Poland (2004) 38 EHRR 4, para 67,
70. and Murphy v Ireland (2004) 38 EHRR 13, para 73.
71. Ibid, para 110.
72. Ibid para 114,
73. citing Refah Partisi v Turkey (2002) 35 EHRR 3, para 93.
74. For a critical discussion of Şahin, see, eg, Manisuli Ssenyonjo, 'The Islamic Veil and Freedom of Religion, the Rights to Education and Work: A Survey of Recent International and National Cases' (2007) 6 Chinese Journal of International Law 653.
75. n 52 above, O-II12.
76. (2005) 41 EHRR 5.
77. This has been recognised by the US Supreme Court, eg, in Wisconsin v Yoder [1972] 406 US 205, though only to the extent of recognising that interference with action as distinct from belief could require justifi cation from the state under the fi rst Amendment: See Gabriel Moens, 'The Action-Belief Dichotomy and Freedom of Religion' (1989-90) 12 Sydney Law Review 195, 207-10
78. and, for discussion of the case generally, William Galston, 'Two Concepts of Liberalism' (1995) 105 Ethics 59.
79. Neither the Koran nor the Sunnah (the two main sources of Islamic law) mention FGM and most Islamic scholars agree that it is not required of Muslim women but the UN estimate that over 130 million (mainly Muslim) women, including 98% of women in Somalia, have been subject to the practice which is seen to guarantee female sexual purity.
80. Another example of potentially irresolvable conflict is found in the Wisconsin v Yoder case, n 62 above, where Amish parents were eventually permitted to withdraw their children from schooling at 14 years (education generally being compulsory to age 16) because of the Amish that view being that state education beyond this age would (Moens, n 62 above, 207) 'threaten their way of life and violate their religious beliefs'.
81. Note that Article 4, which prohibits 'forced or compulsory labour' exempts military service from this prohibition.
82. Respectively (2001) 31 EHRR 15 and appl. no. 39437/98.
83. In Peters v the Netherlands, Heudens v Belgium and Valsamis v Greece (appl. no. 22793/93, Commission decision of 30 November 1994, not published; appl. no. 24630/94, Commission decision of 22 May 1995, not published and (1997) 24 EHRR 294, respectively), the European Commission rejected Article 9 challenges to mandatory military service itself. Note, however, that in Bayatyan v Armenia (appl. no. 23459/03), the Court ruled admissible a challenge to mandatory military service. The decision in Bayatyan was reached in December 2006 and the matter has yet to receive full consideration by the Court.
84. Matthew's last verses report Jesus 'command to' Go to all the nations and make disciples. Baptize them and teach them my commands'.
85. (1994) 17 EHRR 397.
86. Ibid, para 48. The latter is, according to the 1956 World Council of Churches' report, 'an essential mission and a responsibility of every Christian and every Church' ('Christian Witness, Proselytism and Religious Liberty in the Setting of the World Council of Churches', revised by the Central Committee in 1956 and 1960 and received by the WCC Third Assembly (New Delhi, 1961)).
87. Defined in accordance with the World Council of Churches' 1956 report, ibid.
88. See, eg, Charles Taylor, "Atomism" in Philosophy and the Human Sciences: Philosophical Papers 2 (Cambridge University Press, 1985),
89. Michael Sandel, Liberalism and the Limits of Justice (Cambridge University Press, 1981),
90. A Margalit and J Raz, "National Self-Determination", in Will Kymlicka (ed), The Rights of Minority Cultures (Oxford University Press, 1995), 79. These arguments are frequently made in relation to 'ethnic' communities but could equally well apply to 'communities' identified by reference to religious belief, as Margalit and Raz recognise at 85.
91. Liberalism, Community, and Culture (Oxford University Press, 1989), 178.
92. Ibid 165.
93. See, eg, Susan Okin, 'Equal Citizenship: Gender/Justice and Gender: An Unfinished Debate' (2004) 72 Fordham Law Review 1537,
94. Anne Phillips 'Defending Equality of Outcome' (2004) 12 The Journal of Political Philosophy 1.
95. See generally Madhavi Sunder, 'Cultural Dissent' (2001-2) 54 Stanford Law Review 495.
96. 'Minority Cultures and the Cosmopolitan Alternative' (1991-2) 25 University of Michigan Journal of Law Reform 751, 783-4.
97. Ibid 763.
98. Sonu Bedi, 'Debate: What is so Special about Religion? The Dilemma of the Religious Exemption' 2007) 15 The Journal of Political Philosophy 235, 237.
99. Ibid 234. Cf Lucy Vickers who argues (n 20 above, 40) that religious beliefs can be distinguished from others and their protection demanded on grounds of dignity because 'it is only those... which feed into an individual's ability to make sense of the world, and through which they develop a sense of the good, that require protection'. Vickers concludes, on the basis of this assertion, that 'religious freedom is an important aspect of the individual autonomy and self-respect due to all people as a result of their humanity. If we accept that all humans are equal, we need to give equal concern and respect to the world views they develop'.
100. Within Anglicanism, eg, as to women priests, within Catholicism as to correct punishment for heresy and the existence of 'limbo'.
101. 'Siding with the Underdogs', in Susan Moller Okin, Joshua Cohen, Matthew Howard and Martha Nussbaum (eds), Is Multiculturalism Bad for Women? (Princeton University Press, 1999), 47. This argument is discussed in more detail in my EUI working paper, 'Religion and (in equality in the European framework' forthcoming.
102. See also Bhikhu Parekh, Rethinking Multiculturalism: Cultural Diversity and Political Theory (Macmillan, 2000), 198
103. Brian Barry (on the Jewish yarmulke), Culture and Equality (Polity Press, 2001), 33.
104. Contrast the letter written to Jacques Chirac arguing that the turban was cultural and not religious, this in order to seek its exemption from the French ban on 'ostentatious' religious dress in schools ('French Sikhs threaten to leave country' Guardian 23 January 2004) with the forthcoming Article 9 challenge to that ban by Sikhs expelled in December 2004 from the Louise-Michel High School of Bobigny.
105. Similarly the kara (Sikh bangle) which was the issue of dispute in R (on the application of Watkins-Singh) v Governing Body of Aberdare Girls' High School [2008] EWHC 1865 (Admin), [2008] 3 FCR 203, [2008] All ER (D) 376 (Jul) (a case in which the RRA was successfully relied upon).
106. As Madhavi Sunder points out ("Piercing the Veil" (2003) 112 Yale Law Journal 1399, 1441, discussing the experience of the network Women Living Under Muslim Laws) 'religious claims are particularly hard to challenge, and therefore [WLUML] expends effort to deconstruct religious claims as, in part, contingent and political'.
107. See generally Sunder ibid and n 76 above.
108. [1983] 2 AC 548.
109. Lucius Outlaw, 'Towards a Critical Theory of Race' in David Goldberg (ed), Anatomy of Racism (University of Minnesota Press 1990) 58, 68.
110. See also Angela Harris, 'Equality Trouble: Sameness and Difference in Twentieth-Century Race Law' (2000) 88 California Law Review 1923. At 1923 Harris highlights the role of law in the USA in regulating the 'formation, recognition, and maintenance of racial groups, as well as... the relationships among these groups'.
111. Adrienne Wing, 'Brief Reflections Toward a Multiplicative Theory and Praxis of Being' (1990-1) 6 Berkley Women's Law Journal 181.
112. Though see the decision of the European Commission on Human Rights in Choudhury v United Kingdom, appl no. 17439/90.
113. For an analysis of the increased marginal risks associated with non-use of helmets by Sikhs in British Columbia, see Dhillon v British Columbia (Ministry of Transportation and Highways, Motor Vehicle Branch [1999] BCHRTD No. 25, British Columbia Human Rights Tribunal, 11 May 1999.
114. This could include those who sit as magistrates, local councillors, etc. Barry objects that employers should not 'be licensed to carry out intrusive investigations into their employees 'religious affiliations simply in order to be able to deny permission to "rogue" headscarf-wearers' (n 83 above, 59) and there is no dispute that the same general rule should apply to all where that rule can be made to be neutral as between religions. The issue is, however, more difficult when, as in relation to working hours, neutrality may not be possible (though it is equally possible that general flexibility around working time will accommodate many employers' as well as workers 'needs).
115. Culture and Inequality, n 83 above.
116. Ibid 43.
117. See, eg, Ronald Dworkin, 'What is Equality? Part 2: Equality of Resources' (1981) 10 Philosophy and Public Affairs 283,
118. Phillipe Van Parijs, 'Why Surfers should be Fed' (1999) 20 Philosophy and Public Affairs 101,
119. Richard Arneson, 'Equality and Equality of Opportunity for Welfare', in Louis Pojman and Robert Westmoreland (eds), Equality: Selected Readings (Oxford University Press, 1997), 231
120. G. A. Cohen, 'On the Currency of Egalitarian Justice' (1980) 99 Ethics 906.
121. For a critique of this literature, see Elizabeth Anderson, 'What is the Point of Equality?' (1999) 109 Ethics 287.
122. At 288, eg, she complains that the excessive focus on 'divisible, privately appropriated goods, such as income and resources, or privately enjoyed goods, such as welfare... neglects the much broader agendas of actual egalitarian political movements'.
123. n 80 above, 34.
124. Ibid 46.
125. Ibid 59.
126. In the case of Sikh construction workers because their number and geographical concentration would mean that the absence of an exemption to the hard hat rule would have a very high social cost (ibid 49-50) and in the case of school uniform which Barry sees as serving 'no interest that was worthy of protection' (at least in the case of Mandla v Dowell Lee [1983] 2 AC 548).
127. n 83 above, 13.
128. Ibid.
129. The Criminal Justice and Immigration Act 2008 abolishes the offence of blasphemy.
130. BBC News, 25 February 2004.
131. Who do we think we are? (Penguin, 2000), 246.
132. See also Judge Tulkens, dissenting, in Şahin, para 95.
133. Citing Gita Saghal and Nira Yuval-Davis, Refusing Holy Orders, Women and Fundamentalism in Britain (Women Living under Muslim Laws, 2000), 14.
134. For further discussion, see, eg, Nicholas Gibson, 'Faith in the Courts: Religious Dress and Human Rights' (2007) 66 Cambridge Law Journal 657
135. Anastasia Vakulenko, 'Islamic Dress in Human Rights Jurisprudence: A Critique of Current Trends' (2007) 7 Human Rights Law Review 717.