Reasonably Accommodating Religious Beliefs

by Peter Smith

Widen the scope for religious freedom so employees don’t have to quit their jobs.

In each of the cases discussed in my previous articles (see here and here), the need for litigation could have been avoided completely if a proper accommodation of religious practices was accepted.

Both Ladele and McFarlane are Christians holding beliefs within the pale of orthodoxy. Neither sought to condemn homosexuality, but simply to find a way of focusing their respective work practices so they did not have to carry out activities which would transgress their moral principles.

Eweida and Chaplin considered it an essential tenet of their faith to place small crosses over their uniforms at work. If British Airways had accepted that Eweida still looked smart and corporate with this small variation, and the NHS had let Chaplin decide whether or not there was a safety risk in wearing a necklace (with a corresponding waiver of the employer’s duty towards her safety), then they both could have continued to manifest their beliefs accordingly.

Many religious people in good faith profoundly disagree with aspects of homosexuality. They do so not out of spite in most cases (and ought not to, if they do) but because they believe in a set of interlocking, meaningful and elaborate philosophical, rational and scriptural arguments as to the purposes and nature of gender, sex and sexual acts. This difference must be respected: it has inherent worth, it has democratic support, and it falls within the category of tolerated difference that the freedom of expression morally protects.

What the law of England and Wales needs is a beefed- up reasonable accommodation test for religious freedom, similar to the provisions made in law to protect against disability discrimination. There is an obligation on every employer to make reasonable adjustments to a workplace so that a less able-bodied employee can work as well as a fully able-bodied person. Reasonable adjustments include removing physical barriers and providing extra support and facilities for a disabled worker, but also changing the structure of employment by altering shift patterns or rotas or ‘the ways things are done’. If a disabled person can show that the employer fails to make reasonable adjustments, she can bring an employment tribunal claim and seek compensation for those failures. Disabled people are not told to find other employment where their disabilities would not pose a problem.

When faced with a genuine conscientious objection, an employer ought to be under an obligation to make reasonable accommodation for an employee’s religious views by rejigging their work schedule, moving them to other shifts, perhaps arranging a meeting to air different views (with the conclusions properly documented) and, with as little fuss as possible, reach a compromise. Service-users could even be told that certain registrars or counsellors would be more appropriate for their particular circumstances, in much the same way that family doctors in Britain have referral arrangements which protect objecting doctors from performing abortion services or providing contraception.

This would be a medium-sized extension to the current protections of religious freedom in employment contracts. The Devon Clays case sets out the current approach to religious belief and employment. Mr Copsey was employed by Devon Clays; a growth in demand for their product caused the introduction of Sunday working on a shift rota basis. Mr Copsey observed the Sabbath as a day of rest – an orthodox view of many Christians – and he tried to find a compromise. Other workers objected to working on Sundays, on secular (and understandable) grounds. An employment tribunal found it fair for Devon Clays to fire Mr Copsey because he refused to vary his employment contract to work on Sundays. The Court of Appeal disagreed: the real reason was the question of whether Copsey would work on Sundays, not the acceptance of new working terms and conditions, and so he could claim religious freedom rights under the Convention. In doing so, the Court considered a line of European Court of Human Rights’ cases that considered, in essence, that the employee is free to seek alternative employment because otherwise they voluntarily accept a curtailment of their religious freedoms, by staying in that job.

So the choice faced by the European Court now is clear: either follow the existing jurisprudence, or propose a detailed examination of whether the employers in the four cases made efforts to find a reasonable accommodation of manifestations of religious beliefs. The alternative is, as the leading government lawyer told the European Court, that a religious employee should simply quit their job and seek another position where they would not be forced into such a position.

Such an attitude to work and conscience is deplorable: it creates an absolutist state position on homosexuality that cannot ever be disagreed with, and it gives licence to employers to act as high priests in this regard. It also forces religious-minded people into jobs and institutions populated with like-minded people. Such silos or ghettos are extremely undesirable: they are more divisive and socially fragmented than the alternative, respecting divergent religious opinions and accommodating them as far as possible.

The freedoms attached to practising, manifesting and acting on religious beliefs are rights recognised internationally, by numerous conventions and by dozens of national constitutional documents (including the UK’s Human Rights Act, which incorporated the European Convention into British law and has the practically effect of being a constitutional document, superior to ‘normal’ Parliamentary statute). In stark contrast, the rights attached to sexual orientation are not internationally recognised. The Equality Act, which created a broad obligation to promote ‘equality’ between people on the ground of sexual orientation, creates no positive rights celebrating any form of sexual orientation, and it is compromised by the clash between religious equality and sexual orientation equality it has created.

There are few statutory protections in English law for times when employees do not want to carry out a controversial part of their work: for instance, medics can be excused participation in abortions, members of the Armed Forces have a conscientious objection procedure, and there are limited protections for shop and betting workers who don’t want to work on Sundays. But this simply is not enough. A robust principle is needed to apply to all jobs, so that employment tribunals and courts can create a new settlement respecting religious freedoms alongside other points of view and attitudes to life.

No surrender

The British satirical magazine, Private Eye, contains, in a recent issue (21 September 2012), the following spoof newspaper article. Entitled UK Lawyers Demand Removal of ‘Offensive Cross Symbol’, the text starts:

A team of British government lawyers argued yesterday before the European Court of Human Rights that the “displaying of a cross in public” was so offensive to non-Christians that the UK authorities should be allowed to ban such practices entirely. They cited as the most offensive example of this “religious bigotry” the use of the cross symbol in the so-called “Union Flag”.

The article continues to explain how the government’s advocates argue the red cross of St George, the red cross of St Patrick and the white-on-blue cross of St Andrew should be removed from the Union Flag, for being “offensive”, “divisive”, “insensitive” and “outmoded” symbols. This leaves the ‘correct’ national symbol – a white flag – which “could then be waved in any future dispute with the EU – or indeed anyone else”.

As so often with top-class satire, what makes this funny is how closely it reflects what could be. Unless moderate religious people in the UK campaign for a broad scope of religious freedom, the capacity to hold core doctrinal beliefs and manifest those beliefs in a practical and meaningful way will be severely eroded, until its content is nothing.


Peter Smith is a lawyer in London. He has previously worked for a Conservative Member of Parliament, and has written for and The Commentator.

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