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A Christian Marginalisation Narrative? Religious Symbols in the Workplace

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About The Author

Keir Baker (Consulting Editor)

Keir is a Trainee Solicitor currently in the fourth and final seat of his training contract at a major US law firm. A law graduate from Selwyn College, Cambridge University, his main areas of academic interest are Employment and Discrimination law. Outside the law, Keir is an accomplished goalkeeper in both football and hockey, as well as a keen actor and pianist. He is a long-suffering supporter of Middlesbrough FC.

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The Bible tells us regularly that our faith will go against the grain, that we’ll suffer for being a Christian. Being Christian is not meant to be easy.

Tim Farron MP

A report published in 2012 by the Equality and Human Right Commission (EHRC) shed light on a belief in some circles that a ‘Christian marginalisation narrative’ can be detected in recent case law, particularly in decisions concerning equality and discrimination legislation. Drawing upon a report released by the Christian Institute entitled ‘Marginalising Christians: Instances of Christians Being Side-lined in Modern Britain’ and citing a range of commentators from across the mainstream media and other areas of society, the EHRC – though ultimately concluding that such a narrative does not exist – highlighted ‘the intensity of concern among Christians’ that their religion was being increasingly penalised in the courts.

There is no doubt that Britain – following documented trends across Europe as a whole is becoming increasingly secular. As The Observer reported in 2017, people who identify themselves as non-religious now make up 48.6% of the population. Furthermore, it could be argued that a general aversion to religion is noticeable in several areas: Tim Farron MP might contend that it is the electorate, and not just New Labour, who “don’t do God” in politics, while prominent broadcaster Jeremy Vine claimed in 2009 that if he were to be open about his Anglicanism on air, it would be ‘destructive’.

However, there is little concrete evidence to suggest that a narrative exists in the legal world by which religion – particularly Christianity – is being marginalised (whether actively or inadvertently) by the courts. As this article argues, this claim appears to stem from a severe misunderstanding about the consequences of, and reasoning in, a number of recent high-profile decisions in this area of the law.

The Root of the Marginalisation Claims

The right to freedom of religion or belief – enshrined in Article 9 of the European Convention of Human Rights (ECHR) – and the law prohibiting discrimination on grounds of religion or belief have provoked a considerable amount of litigation, some of which has been highly contentious.

Indeed, in recent years, several cases – including yesterday's decision in Pemberton v Inwood [2018] and the decision of Mba v London Borough of Merton [2013], which was examined by Georgia Mitchell for Keep Calm Talk Law – have tackled disputes that concerned a person’s attempt to exercise their right to freedom of religion in a way that clashes with the rights of others. 

As Lady Hale has observed in a recent speech, among the most notable in this respect are a group of cases that involve disputes over the attempted manifestation of religion or belief by individuals in their workplace. Indeed, a number of the decisions in this area have been interpreted in a way that supports the idea of a marginalisation narrative. It is upon such cases that this article will focus.

Recent Case Law on Manifestation: Christianity

In Chaplin v Royal Devon and Exeter NHS Foundation Trust [2010] ET 1702886/2009, a nurse – Shirley Chaplin (C) - was asked by a hospital to remove a crucifix on a chain, as required by its new policy introduced for patient safety reasons. Meanwhile, in Eweida v British Airways [2010], a member of an airline’s check-in staff - Nadia Eweida (E) –was asked to conceal a similar (albeit smaller) crucifix in order to comply with a uniform policy that had been introduced as part of the airline’s new corporate image. In both cases, their claims were dismissed by the UK courts.

C and E – alongside two other claimants – combined to take their cases to the European Court of Human Rights (ECtHR). They argued that their rights under Article 9 of the ECHR were not sufficiently protected by UK law. The ECtHR agreed that there had been interference with the rights of both C and E; however, it found that the cases were different and could be distinguished.

The ECtHR in Eweida et al. v UK [2013] found in favour of E, holding that the airline had failed to balance E’s rights with its desire to inculcate a specific corporate image. Though it accepted that creating a corporate image was a legitimate aim, the ECtHR noted that the discreet nature of E’s cross could not detract from her professional appearance and there was no evidence that wearing it – or any other items of religious clothing – negatively impacted the airline’s image.

Crucially, however, it must be noted that E’s case had several unique elements. Alongside the discreetness of E’s cross, the ECtHR also based its decision on the fact that the airline had previously allowed employees of other faiths to wear turbans, bangles and hijabs to the extent that they could comply with the airline’s uniform policy.

It was therefore perhaps more significant that the ECtHR in Eweida et al. v UK [2013] dismissed C’s case, on the grounds that the hospital’s new policy was vital to protecting the health and safety of patients. The ECtHR considered this aim to be more important than that of corporate branding – indeed, it considered the policy to be proportionate and ‘necessary in a democratic society’. It was also observed that the hospital had permitted C to wear the crucifix in other forms that would pose less of a health and safety risk, but C had refused to do so.

A final important element of both cases, for the purpose of this article, was that both the domestic courts and the ECtHR in Eweida et al. v UK [2013] heard evidence from Christian leaders to the effect that the religion’s doctrine did not require adherents to wear a crucifix; instead, this was an item which both C and E chose to wear as their own personal choice. This meant that it was harder for both claimants to argue that their employers’ policies discriminated against Christians.

Recent Case Law on Manifestation: Other Religions

In Azmi v Kirklees Metropolitan Borough Council [2007], the Employment Appeals Tribunal (EAT) dismissed the claims of a classroom assistant at a school – Aishah Azmi – who was denied permission to wear a niqab (a veil that covered all her face except her eyes). The EAT held that the school’s decision was justified, on the grounds that classroom evaluations had discovered that she was more effective in teaching the children when she did not wear her veil.

In Achbita v G4S Secure Solutions NV [2015], the Belgian Court of Cassation requested a preliminary ruling from the European Court of Justice (ECJ) on the case of Samira Achbita (A). A worked as a receptionist for a Belgian security company. She had demanded permission to wear a hijab at work, contrary to her employer’s neutrality policy that prevented employees from wearing any visible religious, political or philosophical symbols at work. She was eventually dismissed.

The question before the ECJ was whether the security company’s rule was directly or indirectly discrimination. Direct discrimination occurs when one person is treated less favourably than another is, has been, or would be, treated in a comparable situation on the grounds of their religion or belief.

Indirect discrimination, meanwhile, occurs where a provision, criterion or practice that appears neutral would nonetheless put persons of one religion at a particular disadvantage compared with persons of the other religion, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.

Before the ECJ made its ruling on A’s case, AG Kokott provided an advisory Opinion. She held that the security company’s policy would not be directly discriminatory against A, so long as the policy was a general rule prohibiting any visible political, philosophical and religious symbols. In AG Kokott’s view, this would be acceptable because it would mean that the security company’s neutrality requirement would affect A just in the same way it affected:

[A] confirmed atheist who expresses his anti-religious stance in a clearly visible manner by the way he dresses.

AG Kokott also opined that – as far as indirect discrimination was concerned – the policy could be justified if it was a necessary and proportionate way of enforcing the employer’s legitimate policy of religious and ideological neutrality. She left the question of whether this was the case as something for the Belgian Court of Cassation to decide, suggesting it should have regard to the nature of the A’s activity, the context in which she performs it, and the national identity of the Member State concerned.

Crucially AG Kokott’s Opinion was rooted in the assertion that religion is a matter of choice. This is an assertion that, as this author has previously noted for Keep Calm Talk Law, is deeply controversial, because it overlooks societal pressures and what religion – and the manifestation thereof – may mean to people who follow it. Nonetheless, AG Kokott argued that while a person’s sex or skin colour could not be ‘left at the door’, a religious employee:

[M]ay be expected to moderate the exercise of his religion in the workplace, be this in relation to religious practices, religiously motivated behaviour or… clothing.

The ECJ in Achbita v G4S Secure Solutions NV [2017] agreed with AG Kokott’s reasoning, holding that because the security company’s rule applied to all visible signs of political, philosophical or religious beliefs without distinction – thereby treating all employees in the same way by asking them to dress neutrally – it did not constitute direct discrimination.

The ECJ also agreed with AG Kokott's view that a rule which indirectly discriminated against a particular religion or belief could be justified by a legitimate aim if it was appropriate, necessary and proportionate. It also deferred the decision as to whether this was the case on the facts of A’s case to the Belgian Court of Cassation.

In Bougnaoui v Micropole SA [2015], the French Court of Cassation requested a preliminary ruling from the ECJ on the case of Asma Bougnaoui (B), who was a design engineer with a French IT company. She had worn a hijab at work at all times during her employment until, following a client complaint, she was told by her employer to remove it. She was dismissed after refusing to do so.

Before the ECJ made its ruling, AG Sharpston provided an advisory Opinion. On the issue of direct discrimination, she disagreed strongly with AG Kokott’s Opinion. She concluded that a rule which prohibits employees from wearing religious signs or apparel when in contact with customers is directly discriminatory because religion is not a matter of choice, but fundamental to identity and could not restricted lightly. Indeed, AG Sharpston was adamant that customer needs and demands should not be used to justify restrictions that might be hiding prejudices held by clients, or the employer themselves.

However, AG Sharpston did agree with AG Kokott in respect of indirect discrimination: both AGs concluded that, where indirect discrimination on grounds of religion or belief is alleged, the interests of the employer’s business will constitute a legitimate aim which, if done via a rule that is proportionate and necessary, may excuse indirect discrimination.

The ECJ in Bougnaoui v Micropole SA [2017] partially approved and partially rejected AG Sharpston’s analysis. Firstly, in disagreement, it concluded that – if the IT company’s reason for asking B to remove her hijab was in line with a policy of neutrality – the same result it had reached in Achbita v G4S Secure Solutions NV [2017] applied: there would thus be no direct discrimination.

However, in agreement, the ECJ also held that – if B’s dismissal was a reaction to a customer’s request to no longer to have the employer’s services provided by a worker, - indirect discrimination would have occurred unless the restriction on B’s rights were proportionate, had a legitimate aim, and based on the nature of the job and the context in which it is carried out. It affirmed AG Sharpston’s Opinion that it was only in very limited circumstances that this could occur in relation to religion.

Applying the Case Law: Flaws in the Marginalisation Claim

Using a standard definition of the term, the marginalisation of a group of persons requires the detrimental treatment that group is allegedly suffering to be examined relative to another group of persons. For example, the marginalisation of black Americans in the 1920s occurred relative to white Americans and the marginalisation of the Jews by the Nazis occurred relative to non-Jews. Examining whether a Christian marginalisation narrative exists in UK case law therefore requires the identifying of a comparator group of persons receiving beneficial treatment from the recent case law.

Thus, whether Christians have been marginalised in UK case law should be examined relative to other majority religions. This would see religions like Islam, Hinduism or Sikhism receiving preferential treatment from the UK courts over Christianity.

The Law’s Neutrality

It is clear from the case law that the manifestation of a religious belief is a qualified right which may be limited or qualified by other rights. This is starkly portrayed by the decisions in Eweida et al. v UK [2013], Achbita v G4S Secure Solutions NV [2017], Azmi v Kirklees Metropolitan Borough Council [2007] and Chaplin v Royal Devon and Exeter NHS Foundation Trust [2010] ET 1702886/2009: policies or rules that are a proportionate means of reaching the legitimate aim – whether that aim be an employer’s neutrality policy, the effective education of children, or the protection of  the health and safety of patients – are acceptable. Clearly, all religions fall under the ambit of these decisions, such that any claim as to the marginalisation of Christianity can be refuted.

Christianity Disproportionately Benefiting?

When the wider repercussions of these decisions are examined alongside the divergent nature of different majority religions, it is arguable that such decisions actually impact more significantly upon other religions. Indeed, allowing an employer to uphold a policy of neutrality disproportionately favours Christianity: it is a religion for which expression largely takes place behind closed doors – those who follow C and E’s wearing of a crucifix are relatively uncommon.

Indeed, as the Court of Appeal in Eweida v British Airways [2010] heard from religious leaders, crosses are not mandatory: the need to express one’s belief through the wearing of one can be considered to be part of what Elias J described in the EAT’s decision in Ewieda v British Airways [2008] as ‘additional beliefs which are not widely shared by other Christians.’

Conversely, for religions such as Islam and Sikhism, the expression of belief is generally more extroverted, in that there are more likely to be stringent – or indeed, mandatory – and more widespread requirements for clothing or appearance, such as the wearing of a hijab or a beard. Contrary to what AG Kokott said in her Opinion, it is impossible for a beard-wearing Sikh to ‘moderate the exercise of their religion at their workplace’ – in pure practical terms, a beard, just like she suggested of sex and colour, cannot be left at the door. Thus, this important statement from AG Sharpston's Opinion arguably applies more strongly to Islam and Sikhism than Christianity:

It would be entirely wrong to suppose that, whereas one’s sex and skin colour accompany one everywhere, somehow one’s religion does not.

The Significance of Non-Legal Factors

The external and non-legal origins of the claimed Christian marginalisation narrative should not be overlooked. For one thing, it is easy to understand that – given Christianity has been the dominant religion across the West for centuries – for some Christians, drives towards equality may actually feel like persecution.

Furthermore, it is important not to overlook that specific cases are often allocated undue significance in the media and their nuances – legal or otherwise – are ignored. Indeed, those cases that achieve media coverage will most likely be complex legal judgments that are being quoted from selectively.

Therefore, making sweeping claims about the relative positions of law and religion based on specific cases is unhelpful; the extent to which an individual and isolated case will have social and legal significance, or illustrate prevalent or entrenched problems in society, is doubtful. They cannot be considered a reliable indicator of the place of religion or belief (or particular religions or beliefs) in society. As Alice Donald has argued:

Cases are highly context-specific and do not necessarily represent common experience. There are invariably contingent reasons why certain cases reach court and others do not. Moreover, the outcome of cases may appear contradictory due to reliance on the principle of proportionality in balancing competing factors in each case.

Conclusion

It is clear that courts at every level – from the Employment Tribunal to the ECtHR and ECJ - consider that the right to hold religious views in the workplace may be restricted by employers to prevent it from conflict with the rights of others, so long as those restrictions are reasonable and employees of all religions are made to follow them.

However, this area of the law is undoubtedly complex. The concept of proportionality and the sometimes hazy distinction between direct and indirect discrimination can mean that – as the impact of decisions are transposed from the judgments of courts to media reports – the true position of the law is lost. For example, it is almost inevitable that some sections of the public will fail to separate the decisions of the UK courts in E’s case that dismissed E’s claim and the ECtHR’s decision in favour of E. It is therefore easy to see how subjective interpretations of the case law, combined with concern over changing demographics, might give rise to the perception of a Christian marginalisation narrative.

Nevertheless, it is clear that an objective analysis of the case law necessitates the conclusion that a principle has been set out that applies to each and every case regardless of a claimant’s religion. Thanks to the use of consistent criteria, in the context of manifestation of belief in the workplace, it is undeniable that all religions are being treated in the same way by the courts.

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Tagged: Discrimination, Employment Law, European Union, Human Rights, Justice, Religion

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