Table of Contents
Acknowledgements vii
Table of Cases xv
Table of Legislation xxv
1 Religious Discrimination and Religious Freedom at Work 1
I Introduction 1
II Religion in the UK 3
III Experience of Discrimination 5
IV Tackling Religious Discrimination 8
Conflicts Arising from the Exercise of Religious Freedom at Work 8
Resolving the Conflict in the Workplace 10
2 Seeking a Definition of Religion and Belief 12
I What is 'Religion'? 12
Content-based Definitions 15
Defining Religion by Analogy 17
The Purposive Approach to Definition 18
Defining Religion: The Approach of the UK Courts 20
II Defining Belief 22
Defining Belief: The Approach of the UK Courts 24
III Conclusion 31
3 Protecting Religion at Work 32
I Introduction 32
Particular Protection for Religion? 33
Terminology: Rights or Interests? 35
II Why Protect Religious Interests? 37
Religious Reasons 40
Conflict Resolution and Social Inclusion 41
'Aesthetics' 43
Social Cohesion 43
Autonomy and Dignity 45
The Content of Religious Interests 49
Religious Interests and Group Rights 50
Freedom of Religion and Freedom from Religious Discrimination 52
Conclusion 52
III Protecting Religious Interests in the Work Context 53
Should Religious Interests be Protected at Work? 53
The 'Right to Resign' 54
The Case for Protection in the Workplace 55
Economic Benefits of Work 56
Non-Financial Benefits of Employment 56
Protecting Religion for Equality Reasons 59
Contracting Out 62
Stepping Out of the Employment Relationship 62
And Yet… The Residual Protection of the 'Right to Resign' 63
Conclusion 64
IV The Proportionality Equation: Religion and the Workplace 65
Competing Rights 67
The Equality Rights of Others 67
The Negative Aspect of Freedom of Religion and the Protection of Religious Interests 68
Rights to Private Life, Freedom of Speech and Freedom of Association 68
Economic Efficiency 69
Employer Autonomy and Reputation 70
An Interest in Being in Work 72
The Right to be Free from Offence 74
Contextual Issues 79
The Public/Private Divide 79
Public Sector Employers 80
Private Sector Employers 82
Work as a Public or Private Space 83
Religious Manifestation or Religious Motivation 85
Organic or Functional View of the Religious Workplace 87
The Meaning of Equality 88
Socio-Political Context 91
The Role of the State 92
V Conclusion 93
4 Freedom of Religion at Work: The European Dimension 97
I Freedom of Religion and the European Convention on Human Rights 97
Protection under the Human Rights Act 1998 97
Protection of Freedom of Religion Under the European Convention on Human Rights 101
The Application of the Convention to the Workplace 101
Treaty Basis of the Convention 104
Contracting Out of Protection 104
Freedom of Religion Under Article 9 105
Manifestation of Religion 107
Article 9(2) 110
Application of Article 9(2) in the Workplace 121
Protection Against Religious Discrimination Under Article 14 131
Article 14 in the Employment Context 132
Conclusion: Protection under the Convention 134
II The EU Framework: EU Directive 2000/78 135
Directive 2000/78 136
Definition of 'Religion' 138
Determining an Individual's Religion or Belief 139
Potentially Indirectly Discriminatory Requirements 140
Genuine Occupational Requirements and Religious Ethos Employers 144
Discrimination on Other Grounds 148
Conclusion: The EU Directive 149
III The Interaction of the Two Courts 150
Reconciling Equality and Human Rights: Reciprocal Interpretation? 152
The Specific Situation Rule 154
The Value of Communal Interests 155
The Margin of Appreciation 155
Conclusion: The Role of Proportionality 157
5 Protection Against Religion and Belief Discrimination in the UK 159
I Protection Under the Equality Act 2010 160
Definition of Religion and Belief 160
Coverage of the Equality Act 2010 161
Direct Discrimination 164
Indirect Discrimination 165
Justification 169
Proving Justification 172
The Distinction Between Direct and Indirect Discrimination 173
Exceptions to the Non-Discrimination Duties 174
Religious Requirements that Discriminate on Other Grounds 177
Special Exceptions for those Employed for the Purposes of an Organised Religion 179
Exceptions to Non-Discrimination in Northern Ireland 183
Determining Whether a Person Meets a Religious Requirement 183
Ascertaining an Organisation's Religious Ethos 185
Victimisation 186
Harassment 186
Positive Action 191
Applying the Equality Act 2010 to the Workplace 192
Hours of Work 192
Sunday Working and Shop Workers 194
Dress Codes and Religious Symbols 195
Lifestyle Requirements 204
Refusal of Work Tasks 207
Sharing Religious Views at Work 209
The Public Sector Equality Duty 212
II Religious Schools 214
III Protection of Religious Interests That are Not Protected by the Equality Act 2010 222
IV Conclusion 225
6 Accommodating Religion and Belief in the Workplace: North American Perspectives 228
I United States of America 229
Meaning of Religion 229
Direct and Indirect Discrimination 231
Bona Fide Occupational Requirements and the Ministerial Exception 233
Duty to Accommodate 237
Harassment 244
Conclusion 247
II Canada 248
Determining a Person's Religion 249
Bona Fide Occupational Requirements and the Duty to Accommodate 250
The Duty to Accommodate and Undue Hardship 251
Religion: A Bona Fide Occupational Requirement? 255
Religious Employers 256
Religious Requirements that Discriminate on Other Grounds 257
Conclusion 260
III Conclusion 261
7 Conclusion: Religious Freedom at Work 263
I Protecting Religious Work 264
II A Duty of Reasonable Accommodation? 265
III Remaining Difficulties 274
False Consistency? 275
False Objectivity? 277
IV Conclusion 281
Index 283
