A few years ago, Darren Newman kicked off one of his employment law seminars by asking the participants which laws they would like to see abolished. There were plenty of suggestions but, after writing them up on a flip chart, Darren then explained either the likely unintended consequences of repeal, the political obstacles in the way or the fact that the laws were governed by EU directives. It was extremely unlikely, he concluded, that any of us would see our pet-hates removed from UK employment law, so we’d better just get on with it and deal with them.
It will come as no surprise to regular readers of this blog that my suggestion for the legal Room 101 was religious discrimination law. I knew before I said it that it derived from an EU directive so there was no chance of it being repealed but I wanted to have a moan about it anyway. Right from the time it was first mooted, I was against extending discrimination law to religion and I still think it was one of the European Commission’s, and the last government’s, less bright ideas. And I know there are a lot of contenders for that one!
The problem with religion is that it is indefinable. At least with race and gender, what is covered is pretty clear. What counts as religion and belief, though, is largely in the eye of the believer. There is no objective test for what counts as a bona fide religion or belief, therefore the potential for argument and litigation appears infinite.
A few weeks ago, on Radio 4, an academic interviewed on this subject (I can’t remember who) quipped that the only difference between a religion and a cult is time and numbers. We can all agree that the major branches of Christianity (2,000 years old, 2.2 billion adherents) and of Islam (1,500 years old, 1.6 billion adherents) are established religions. The more recent Sikhism (600 years old, 30 million adherents) and Mormonism (190 years old, 14 million adherents) qualify too. But what about Scientology (60 years old, 200,000 adherents)? What about the new Pagan religions that have appeared over the past century? How may adherents does a ‘bona fide’ religion have to have? A thousand? A hundred? A dozen? How long does it have to have been going before it is considered to be a ‘proper’ religion? A century? A decade? A couple of months?
When Directive 2000/78/EC first appeared, I predicted a rash of territory-marking claims as a few holier-than-thou religious zealots made demands of their employers and co-workers. And so it proved. Muslims, Christians and Pagans fighting for control of workplace prayer rooms, ‘offensive’ toy pigs being removed from workers’ desks, people refusing to do certain parts of their jobs and demanding that their colleagues cover for them every weekend.
Thankfully, my worst fears turned out to be unfounded. There was a lot of media noise but, once tested, many of these demands were found to have no legal basis. While the British courts have adopted a broad interpretation of what counts as a protected belief system, they have adopted a narrow interpretation of the rights this confers on people in the workplace. So prayer rooms are not for one religion only, people can’t pick and choose which clients they deal with, or what aspects of their jobs they do, workers can’t flout health and safety or uniform rules in the name of religion and, if they work shifts, they can’t demand their holy day off every week. Most of the wilder religious claims have been rejected.
At least, they have so far.
However, if, next week, Eweida, Chaplin, Ladele and McFarlane win their cases at the European Court of Human Rights, they will, in effect, establish positive religious rights. An extension of workplace religious rights will increase the scope for workers to make demands of their employers and colleagues in the name of religion. The Archbishop of York and Lord Carey have complained that courts are being asked to rule on what counts as a requirement of faith. But if these cases go the way the esteemed clerics want them to, we will see a lot more of that. Expect to see legal challenges not only from Christians but from tattoo wearers, body piercers and, of course, Muslims demanding the right to wear the niqab.
The extension of religious rights into the workplace has already caused headaches for employers, though the courts’ interpretation of the law has, so far, thrown out the most excessive demands. The last thing we need, though, is any extension of those rights, either by an ECHR ruling or by the government bringing in new laws. As Darren said, “The potential for argument and costly litigation is enormous.”
Religion and belief are messy subjects and, had it been left to me, we would have kept them out of employment law altogether. On the whole, though, the way the law has been applied has meant that much of the chaos I feared didn’t happen and most of those who made unreasonable demands found little joy in the courts. It would be great if it could stay that way. Let’s hope that, on Tuesday, the ECHR agrees.