Cameron promises law to protect niqab wearers in the workplace

Only last Autumn, the Coalition told us that employment law was a drag on the country’s economy. That was a long time ago, though, and now the government is hinting that it might bring in new regulations. Last week it raised the possibility of new employment rights for forces reservists and today, David Cameron promised new laws to protect religious people. Red-tape, it seems, is yesterday’s battle.

David Davis’s asked him essentially the same question he asked Kenneth Clarke last week about Nadia Eweida and Shirley Chaplin’s cross-ban case. (See previous post.)  But, while Clarke responded by saying that this is a complex matter and we will have to see, Cameron immediately promised to change the law:

I fully support the right of people to wear religious symbols at work; I think it is absolutely a vital religious freedom.

What we will do is, if it turns out that the law has the intention, as has come out in this case, then we will change the law and make clear that people can wear religious emblems at work.

Which makes me wonder whether he really understands all this. If he thinks the law should change, why is the government contesting the case at the ECHR?

Furthermore, there is no ban on religious symbols in either case. Both employers banned jewellery; BA because it was against its uniform policy and the NHS trust on health and safety grounds.

As far as I am aware, no employer anywhere in Britain has specifically banned the display of religious symbols. These cases arise when employees demand the right to ignore existing employer policies on the basis of their religion.

Changing the law, then, would blow a hole in the employers’ policies. Many of you may decide that employers don’t have the right to set a dress code or to tell workers they can’t personalise their vans. Perhaps we should bring in a law saying people can wear what they like at work, though I can’t see that going down too well on the Tory back-benches. But that’s not what the religious campaigners want. They want special rights just for themselves. No problem with a jewellery ban provided I can wave my new-found rights at you and refuse to comply.

Potentially more serious is the health and safety question. Should employees really be allowed to challenge health and safety rulings just because they happen to believe something strongly? Dangling jewellery is either dangerous or it isn’t. It’s no less dangerous just because it’s got a cross on it.

If Eweida and Chaplin are successful, or if they are not but David Cameron changes the law anyway, religious rights will come into conflict with health and safety rules. Which will take precedence?

This, warn employment lawyers, is a recipe for chaos.

Here’s Darren Newman:

Specifically changing the law to allow religious symbols to be worn seems an unnecessary step. There is no rule banning religious symbols at work and the issue has only arisen in a tiny number of cases. It is generally a bad idea to change the law to accommodate unusual cases that just happen to have received a lot of publicity. Any new law would cause more problems than it solved and lead to considerable uncertainty. Would all religious symbols be allowed? What about religious slogans? The potential for argument and costly litigation is enormous.

And John Read:

If the Government changes the law to give employees an express right to wear religious symbols at work, it could not be limited to just visible crucifixes, and case law has shown that a very wide range of beliefs are capable of being protected under the Equality Act. If religious symbols were positively allowed, then arguments that employees should be given an express right to manifest their beliefs at the workplace in other ways would certainly follow, even if, like Eweida, these manifestations were not required by the religion or belief in question. This could create chaos for employers.

What many Tory MPs and right-wing columnists can’t seem to grasp is that if the law protects the wearing of crosses it protects the wearing of other religious symbols too, like niqabs, for example. But you can be sure that, when Muslims start demanding similar rights, the same people who support Chaplin and Eweida will be bleating on about Islamification and dhimmitude.

As I’ve said before, a law protecting religious symbols would be a significant extension of religious rights in the workplace. It would apply to any number of belief systems and probably some that we don’t even know about yet. Potentially, it could protect not only crosses and niqabs but also piercings and tattoos. It will be ironic, and very funny, if employers start complaining about being sued under David Cameron’s law by the painted and pierced. How ‘business friendly’ will he be then?

Update: Darren Newman has posted on this too, clarifying the facts and drawing this conclusion:

I’m not a human rights lawyer and for all I know, Eweida will win her case before the ECHR – although as I understand it that will involve something of a departure from their approach in previous cases. If she does win, I doubt the Government will be happy with the consequences.

Of course it now appears that if she loses, the Government will be honour bound to change the law. When they see what that involves and consider some of the implications, they won’t like that option either.

And neither will the businesses that have to deal with those consequences.

Update 2: A piece in, of all places, the Daily Mail from Anglican priest George Pitcher, with the blunt title, David Cameron’s cynical bid to lift the non-existent ban on wearing Christian crosses.

These people [Nadia Eweida and Shirley Chaplin] are encouraged, in their innocence, by over-enthusiastic Christian lawyers and busy-body bishops, who all too readily claim that they are the victims of ‘persecution’, which diminishes and insults real victims of religious persecution, from Pakistan to the Sudan.

That they’re exploited by Christianity’s professional whingers is bad enough. But when our Prime Minister seeks to make cheap and distractive political capital out of a non-existent problem, while the economy dies and there are instances of real human suffering both at home and abroad that he could do something about, then that is a cynical act of spin that is beneath contempt.

Now there’s some Christian outrage for you!

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16 Responses to Cameron promises law to protect niqab wearers in the workplace

  1. So, I can take my Jedi light sabre to work and wave it about? Excellent, dude.

  2. B.O. Locks says:

    If it does become necessary to enact legislation to protect the rights of employees to manifest their faith then many of the objections put forward can be overcome. For example, the a Schedule can be appended to the Act that lists the religions caught by the Act. This could be drafted to exclude “faux” religions and belief systems such as Jedi-ism which takes its authority from an Hollywood fantasy film. So the world’s major religions would be listed and cults, such as Scientology, would be excluded. Piercings and tattoos could also be specifically excluded.

    The new law could be qualified so that genuine and significant H & S considerations would dominate an employee’s right to manifest their faith. A similar qualification could be made to apply where there is a genuine business case. I don’t believe any of this is beyond the wit of Parliamentary draughtsman.

    A claim to a right to wear a Niqab will often fail on H & S grounds or on business efficacy grounds (as in a teacher where lip reading contributes to effective contribution).

    Sensible and sensitive well-drafted law, should it be required, will anticipate the fears outlined in the blogger’s post.Accordingly, I doubt that there is much to fear from allowing followers of genuine faith to manifest in the workplace.

  3. Annabel says:

    Who is going to decide who genuinely believes in a ‘faux religion’ who is faking belief in a real religion, what a real religion is? That wouldn’t be the Bishops who can’t abide the idea of a female bishop, or the Catholic priests who had unpleasant habits with young boys, or would it be the Islamic clerics who get to decide this issue.

    Wouldnt it be simpler if we stopped trying to amend the law to allow Christians to insist on special treatment under health and safety requirements. Can anyone tell me when it was that Chrisitan faith requires the wearing of a cross that can be seen by others? Can find no biblical reference to such a requirement. Not be able to do exactly what you want is not the same as being discriminated against!!

    Oh and by the way witches will need to work naked and take brooms to work in case they feel the need for a ritual coming on.

    • B.O. Locks says:

      @Annabel

      It does not matter whether someone is a true believer or not. That is not the issue and no one is advocating inquisitions into someone’s beliefs. The issue is whether those with faith should have a right to manifest that faith.

      The list of world faiths would not be decided by the Bishops. I dare say many Theology professors from our excellent universities could arrive at a consensus. At a guess, their list would include Christianity, Islam, Judaism, Hinduism, Buddhism at a minimum. The list could be added to via Statutory Instrument.

      I am not sure the unpleasant habits you refer to are tenents of Catholicism. Non-believers would not be compelled to wear religious insignia.

      As a bloke, I would be very happy to have naked female work colleagues, but alas, I doubt that Wicca (aka witchcraft) would be chosen for the list of world religions.

  4. @BOLocks,
    So, Jedi-ism takes its authority from a Hollywood fantasy film, as opposed to a book of fairy tales. And your point is what, exactly?

  5. B.O. Locks says:

    My point is that Jedi-ism was never intended to be a religion for others to follow.

    Do people really believe in its teachings? What are those teachings? Are these beliefs widely held such that it constitutes a world religion? Have its teachings been considered worthy of serious study by accredited academic institutions?

    So to answer your question, there is not not much difference between a Hollywood Fantasy film such as Star Wars and a book of fairy tales, say, by Hans Christian Andersen. I argue that neither supports a serious claim for religious status.

  6. John Read says:

    @ B. O. Locks

    Unfortunately, your proposal wouldn’t work. The protection afforded against discrimination on the ground of religion or belief derives from the EU’s Equal Treatment Framework Directive, which does not protect particular religions or beliefs – it merely refers to “religion or belief”, as does the European Convention on Human Rights.

    In other words, the intended protection is not merely for a specified list of religions or beliefs, for example the world’s major religions. A result of this is that, at least in the UK, tribunals and courts have had a pretty tough time deciding what religions and beliefs should be protected under discrimination law, because the Government unsurprisingly declined to address this in the Equality Act and the previous legislation. Courts and tribunals use a set of case law-established criteria (largely reproduced in the explanatory notes to the Equality Act), and guidance from the EHRC in deciding whether or not a particular religion or belief is covered.

    One of these criteria is whether or not the religion or belief is worthy of respect in a democratic society; another is that it has attained a certain level of cogency, seriousness, cohesion and important. This shows how hard it is to decide what should and should not be protected. Even using these established criteria, there is massive scope for argument.

    So it is not so simple as to just “list the religions caught by the Act”. You refer to “faux” religions and belief systems, but what does this mean? You cite Jedi-ism as a “faux” religion, on the basis that it “takes its authority from a Hollywood fantasy film”, and would also exclude Scientology. Given that is it impossible to know whether or not a religion is ‘correct’ in its beliefs (e.g. that there is a God, and Jesus was his son, and so on), then I’ll assume you aren’t referring to that.

    By “faux”, you seem to mean “not a ‘real’ religion”, but this takes us no further in deciding what should and should not count. Further, your argument would seem to discount all non-religious beliefs, even though these are expressly covered (including a lack of religion or belief) in principle. If Scientology is to be excluded, even though most people would accept that it is a religion, then it’s hard to see how a strongly-held belief in the catastrophic consequences of climate change – something that has been held in the UK to be capable of protection – could qualify under your rules. It is clearly impossible to make a list of all possible beliefs.

    This whole point ties back to Rick’s previous post on this topic. Because the protection against discrimination on the ground of religion or belief is not the preserve of the world’s major religions, an express right for employees to manifest their religion or belief in the workplace (for example, by wearing a religious symbol) cannot be limited to a handful of groups – no matter how vocal they may be.

  7. Pingback: Cameron promises law to protect niqab wearers in the workplace - Rick - Member Blogs - HR Blogs - HR Space from Personnel Today and Xpert HR

  8. B.O. Locks says:

    @ John Reid

    Thanks very much for your informative post. very interesting. Just some points though.

    1. I think claiming to believe in Jedi-ism would fail the tests you outline and which I have reproduced here:

    “One of these criteria is whether or not the religion or belief is worthy of respect in a democratic society; another is that it has attained a certain level of cogency, seriousness, cohesion and important. This shows how hard it is to decide what should and should not be protected. Even using these established criteria, there is massive scope for argument.”

    I honestly believe any judge, or even a lesser trained employment tribunal, would have no difficulty in dismissing Jedi-ism’ using these criteria very quickly. I would hope that a solicitor acting for a plaintiff would advise the client of the futility of such a claim.

    2. Scientology, if my memory serves me well, has already been denied a religious designation by the Charities Commission. This suggests that Scientology and Jedi-ism both fail to meet the same criteria, as set out above.

    3. The validity or legitimacy of non-religious beliefs, such as the environmental case you cite, could easily be ascertained by reference to the Charities Commission. If a cause has gained recognition for charitable purposes then it is probably safe to proceed on the basis that it is a bona fide religion or belief. In these circumstances its manifestations should be allowed.

    4.. I think the real problem here is that employers may fear that an employee’s manifestation of belief will damage the employer’s image This is a legitimate concern but not insurmountable. I suggest there are 2 aspects to this fear:

    a) The message.
    Employers may fear the message conveyed by the emblem will harm the organisation’s image.
    As I have suggested, if a belief is acceptable for registration with the Charities Commission then there is little reason for an employer to fear harm to their image. I am sure that many people will agree that observing engagement of an organisation’s staff with good causes will often enhance that organisation’s image, rather than diminish it. This is certainly my perception.

    b) The medium
    Employers may fear the message is conveyed via tattoos or piercings or by vulgar “in-your- face” slogans. This is simple to solve. Use the dress code to ban these forms but make it clear that a message, provided it meets the recognised criteria, is acceptable.

    Summary
    A manifestation of religious faith, when the religion meets the criteria already cited, is, or should be, a right of an individual employee. This right should not be interfered with by an employer unless with proportionate and necessary reason (eg H & S, business efficacy, form)

    The legitimacy or otherwise of non-religious belief can be determined by reference to the Charities Commission. Where such a belief is registered it can be deemed to be in the public interest to grant an employee a right to manifest that belief / cause provided the manifestation is unlikely to harm the employer’s image.

    I believe the outright ban that Rick and others on this site advocate is disproportionate and is using a sledgehammer to crack a nut. Their approach is unnecessary and disproportionate in a democratic society.

  9. John Read says:

    Thanks for the reply. I’ll just add a couple of quick points as I don’t have much time. I think that Jedi-ism probably would fail the current test used to determine whether or not a belief is protected under discrimination law, but Scientology might well pass. I also didn’t list all the criteria used by the tribunals and courts to determine this point. I can’t comment on the criteria that the Charities Commission uses.

    With respect to your last point, I don’t think that Rick is advocating an “outright ban”, unless I’m missing something. Actually, I don’t think I’ve seen anyone advocate that, and it wouldn’t ever happen anyway. I wouldn’t want to speak for Rick or anyone else, but for my part, it is important to allow employers to make sensible business decisions regarding their worforce with a degree of certainty. That certainty would be eroded if the law were changed to provide employees an express right to manifest their religion or belief in the workplace: the arguments that take place now about whether or not a religion or belief is even protected in the first place show just how large the can of worms is. In my opinion, your proposals introduce a level of complexity, and grey areas, that employment law certainly doesn’t need.

  10. @BOLocks, I hate explaining jokes, but you leave me no choice …

    The point at issue is not about religion per se. What we are faced with is a conflict between positive and negative liberties. The law already supports religion in terms of negative liberty, such as freedom from discrimination. It also includes dispensations for specific religions in respect of required observance, such as the right of Sikh men to carry a concealed dagger, the kirpan. That’s a positive liberty (freedom to) that is considered acceptable because it does not conflict with the liberties of others.

    In the two cases being tested with the ECHR, the right sought is a positive liberty: the right to display religious symbols at work. Article 9 of the convention defines the positive liberty to: “manifest his religion or belief, in worship, teaching, practice and observance”. The same article qualifies this right as subject to: “protection of the rights and freedoms of others”. The media coverage of these cases has pitted individual Christians against politically correct corporations, but in fact the central dynamic is between the individual and her co-workers and customers.

    The meat of the issue then is whether prominent display steps over the line from manifestation (which is not defined in the convention) to advocating or promoting, and therefore constitutes a conflict of rights, i.e. a co-worker or customer’s right not to be bothered. Unfortunately, some people are so militant in respect of their own religion (or beliefs) that they consider the display of symbols of other religions to be not merely bothersome but blasphemous, and consequently a form of harassment . Thus many evangelical Christians are offended by inverted crosses and other Satanist imagery.

    As the issue is one of “feelings”, i.e. in the eye of the beholder, there is no way to precisely define what would constitute acceptable manifestation (let alone what is a legitimate religion or belief) without offending someone. The applicants are demanding a right, but their case does not acknowledge the rights of others. They are effectively demanding a privilege, i.e. that Christian imagery should be protected by a specific positive liberty not extended to other religions or beliefs. If the ECHR find in the applicants’ favour, they will do so by establishing a general right applicable to all religions and beliefs.

    This right would extend way beyond religious manifestation. You could expect trades unionists to demand the right to wear union badges at work, and football supporters to wear club scarves. This might appear harmless, but imagine if someone behind the counter at a Liverpool Job Centre decided to wear a Man Utd bobble hat, or a bank clerk on the Shankill Road took to wearing a photo badge of the Pope.

  11. B.O. Locks says:

    Hello A to E

    Yes, but none of what you say justifies the ban imposed on Eweida. A ban on the simple right to wear a crucifix where:

    1. It does no damage to the employer’s image or reputation
    2. There are no H & S issues
    3…There are no impediments to business efficacy

    is, in my view, irrational, unnecessary and disproportionate. We live in a democratic society and authority without justification is authoritarianism. This appears to be the case with BA and Eweida.

    I have lived and worked in a multi-racial / cultural country. The main religion was Islam, the secondary religions were Christianity, Hinduism, Buddhism, Confucism and probably some others too. Each of the religions were tolerant and respectful of the others.

    If BA employees are offended by the sight of a crucifix I suggest it is they who should consider their continued employment. BA is a global carrier that flies to all “corners” of the globe. Are BA’s employees and management offended by their customers, many of whom will be foreign and who may be wearing insignia that manifest different faiths? We are supposed to be a tolerant society. In this globalised world, it does not bode well for UK PLC’s economic future if BA,. the nation’s flagship carrier, baulks at the sight of religious insignia. Christians exist in all parts of the globe and stopping UK natives from wearing crucifixes will not insulate BA’s employees from exposure to them.

    As for your points about football scarves and trade union insignia being worn in the workplace, I have dealt with these objections in my previous post. I suggested there that a simple reference to the Charities Commission to check for a belief’s registration, would eliminate an employer’s fears about reputational damage from operating a permissive regime. Basically, any belief system or cause registered with the Charities Commission must operate in the public interest / benefit. Manifestations of registered causes should be allowed. Manifestations of causes or belief systems that are not so registered could be legitimately banned by an employer on the grounds of reputational risk to the employer. This way, environmental causes / beliefs, where they have shown to be genuine, would be permitted to manifest. Frivolous causes, like Jedi-ism, and doubtful causes, like Scientology, (whose public benefit has not been accepted by the Charities Commission) could be legitimately banned from manifesting in the workplace. I would hope that employment tribunals, Courts and employing organisations might adopt such an approach when arriving at their decisions.

  12. @BOLocks,

    BA have not banned Eweida’s wearing of a crucifix. Eweida has contravened BA’s dress code. They’re not the same thing. The right Eweida seeks would (if granted by the ECHR) be a general right, so it would extend to a Jedi Knight as well. Defining what is or is not a religion is irrelevant (not to mention totally impractical) as the convention article that is being tested covers beliefs as well.

    A belief is by definition self-certifying. If I believe the Duke of Edinburgh is an alien lizard in disguise, then that is what I believe. I don’t need somebody else’s permission. The notion that belief systems should be “registered with the Charity Commission” beggars (ahem) belief. By the way, I think you’ll find that many existing charities do not “operate in the public interest” as they are thinly-disguised tax avoidance vehicles or the playthings of the rich.

    Religions are occasionally tolerant and respectful of each other, but they are also occasionally intolerant and prone to sectarian violence. Quite a few wars have been fought as a result.

    • B.O. Locks says:

      Hi A to E (and anyone else who may be interested).

      I have extracted the following from the Human Rights handbook on dress codes and Strasbourg jurisprudence.

      “Dress codes
      Prohibitions on the wearing of religious symbols have given rise to complaints addressed to the Strasbourg Court under Article 9. These cases can require careful assessment. It appears from the jurisprudence that it is normally accepted that such a prohibition
      involves an interference with the right of individuals to manifest their religion, and assessment has turned upon the reasons advanced for the ban. In this area, however, the Strasbourg Court is likely to recognise a certain “margin of appreciation” on the part
      of state authorities, particularly where the justification advanced by the State is the need to prevent certain fundamentalist religious movements from exerting pressure on others belonging to another religion or who do not practise their religion.

      ” Thus in Dahlab v. Turkey, the refusal to allow a teacher of a class of small children
      to wear the Islamic headscarf was deemed justified in view of the “powerful external symbol which her wearing a headscarf represented: not only could the wearing of this item be seen as having some kind of proselytising effect since it appeared to be imposed
      on women by a religious precept that was hard to reconcile with the principle of gender equality, but also this could not easily be reconciled with the message of tolerance, respect for others and equality and non-discrimination that all teachers in a democratic
      society should convey to their pupils.”

      I agree that Eweida’s case may have some high hurdles to jump at Strasbourg, given the Court’s historic restrictive interpretation of Article 9. If her case loses, then the PM’s promise to legislate on the matter will have my full support.

      It is imperative, in my view, that the over-powerful (and frequently incompetent, viz G4S) human resources lobby has its wings clipped.

  13. B.O. Locks says:

    A to E

    I think the point is that BA’s dress code may be unlawful if it bars people from manifesting their faith.

    I think the law is more sophisticated than you give it credit for. It is perfectly feasible to draft a law that enabled people of genuine faith (and not frivolous or anti-social beliefs) to manifest their faith.

    Anyway, we will have to wait to see what is decided in Strasbourg in September. I suspect its decision will be nuanced. I doubt if the Court will create a general right as this is not the way it works. It decides on a case by case basis and will look at the circumstances of Eweida and will provide a judgement on that specific case.

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