Last month saw the application to intervene by the Equality & Human Rights Commission in a number of legal cases involving Christian employees who had claimed religious discrimination.

The Commission claims, in their application, that Judges have interpreted the law too narrowly in religion or belief discrimination claims and that the way in which equality law has been interpreted by judges is insufficient to protect freedom of religion or belief.  All 4 cases however, are far from being the same.

Two of the cases not only involve religious freedoms, but the protection from sexual orientation discrimination. The widely publicised cases include Lillian Ladele, the registrar who refused to conduct civil partnership ceremonies for same-sex couples, and Gary McFarlane, the Relate counsellor who refused to give sex therapy to gay couples. The reason that both Ladele and McFarlane were dismissed was ultimately their failure to provide the same public service to gay people as to heterosexual people, but both claimed discrimination because of their religion.

The question therefore, is whether those of a particular religion, should be able to ‘opt out’ of a particular aspect of their job, because of religion or belief?

The Commission is proposing the principles of “reasonable adjustments” (akin to those for disabled people) in order to allow someone to manifest their religious beliefs. The challenge for employers, as is the case for disability, is what is reasonable? Do we run the risk of people hiding behind religion/belief and a required reasonable adjustment to legitimise discriminatory behavior?

Whilst providing reasonable adjustments has undoubtedly assisted disabled people into work and helped disabled people to remain in employment, there remain countless employment tribunal cases where employers have failed to provide reasonable adjustments, or have not provided an appropriate adjustment.

How far should these adjustments go? And indeed what should an employer consider is reasonable? Would it be reasonable for a Muslim doctor to refuse to treat an alcoholic patient, or a devoutly Christian social worker to refuse to assist a single mother or a Catholic pharmacist refuse to provide contraceptive medication to a patient?

In addition, the Commission’s viewpoint seems to be at odds with its Chair’s recent comments on the subject:

“I think for a lot of Christian activists, they want to have a fight and they choose sexual orientation as the ground to fight it on. I think that whole argument isn't about the rights of Christians. It's about politics. It's about a group of people who really want to have weight and influence and they've chosen that particular ground.” ^[1]

I understand that some religious communities, particularly in the Christian Church, may feel that their faith is under siege (particularly given the number of recent failed discrimination claims). I sympathise with those who feel that they have been discriminated against for not being allowed to express their religion or its symbols in the workplace. In fact, I would agree that the Commission has a legitimate right to seek clarification or to redress imbalance in these cases.

However, in relation to the Ladele and MacFarlane cases, I feel uneasy (as many do in the diversity and inclusion arena) about a change in the law that would allow those with a particular religious belief to circumvent established cases, precedents and discrimination legislation.

Employers already recognise the difficulties in managing the sometimes conflicting rights of employees, but by creating possible exemptions for some groups, the Commission’s intervention runs the risk of sending mixed signals to employers and employees alike.

- Stuart McKenna

Stuart McKenna is the Diversity Manager at the Co-operative Group. The views expressed herein are those of Stuart McKenna, and do not represent the views of the Co-operative Group.

Please note the opinions of our guest bloggers are solely their own. 

Notes:

^[1] Trevor Phillips wades into debate on religion in modern society. The Telegraph. 19 June 2011.

The Commission has sought permission to intervene in the following cases to be heard in the European Court of Human Rights:

• Nadia Eweida & Shirley Chaplin against the United Kingdom (Application numbers 48420/10 and 59842/10)
• Lillian Ladele and Gary McFarlane against the United Kingdom(Application numbers 51671/10 and 36516/10)