Hart Publishing has just produced a second edition of Professor Vickers’ Religious Freedom, Religious Discrimination and the Workplace: the first was in 2008, since when there have been major developments in employment and equality – not least the Equality Act 2010 – both in domestic and European law.
Lucy Vickers is Professor of Law at Oxford Brookes University, where she specialises in the protection of human rights in the workplace. The purpose of the new edition of her book is to consider the extent to which religious interests are protected at work, with particular reference to the protection against religious discrimination provided by the Equality Act 2010. The contents range over the question of defining “religion and belief”; protecting religion at work; the European dimension and the interaction between the CJEU and the Framework Directive and the ECtHR and Article 9; the UK dimension to protection against religion and belief discrimination, and the Equality Act 2010; and a US/Canadian perspective.
Because I am currently writing a paper on the question myself, I was particularly interested in her discussion of the possibility of ‘reasonable accommodation’ for religious manifestation in employment, as in the US and some provinces of Canada: an issue recently raised by the Parliamentary Assembly of the Council of Europe. The analogy that she adopts is the current right under UK employment law to request flexible working: a request that the employer is obliged to consider but is not bound to grant. She feels that, broadly speaking,
“the creation of a separate and explicit duty of reasonable accommodation would not materially change the level of protection available for religion or belief in the workplace.”
However, she suggests that such a duty would clarify individual rights by abolishing the requirement to find comparators; instead, each application would be assessed separately on its own merits, without the need for generalised group disadvantage. It would also be “more intuitive and straightforward for employees to use”. Possibly – though not inevitably – it might also prove more acceptable to workers because the process would be less confrontational than having to bring a claim for indirect discrimination.
She goes on to note that there is also a potential downside to the proposal. Employment tribunals would struggle to achieve consistency; and, in any case, the wider issue of whether or not the manifestation of religion and belief in employment should be given any particular protection is itself a matter of controversy:
“The creation of a separate framework for religious interests in the workplace could be seen as granting special status to such claims, thereby privileging religion over other interests; and views will certainly differ as to whether this is a good outcome.”
She points out, however, that the degree of privilege that such a move would confer is also dependent on the threshold for refusal by the employer on grounds of hardship – which in the US happens to be very low. On balance, she concludes that the current law on indirect discrimination is probably sufficient.
Whichever side one comes down on – and I confess to being agnostic on the issue – it is a debate that is not likely to go away. The Ashers Baking case, for example, was almost as much about the Article 9 rights of the McArthurs as about the right of Gareth Lee not to be discriminated against in the provision of services; and if the Attorney General for Northern Ireland obtains permission to challenge the Court of Appeal judgment on constitutional grounds, it will be interesting to see what the Supreme Court makes of it all.
But to conclude: if you have any professional or academic interest whatsoever in the interactions between employment law and religious manifestation, Professor Vickers’ book is a must-read.
The publisher is currently offering the book at a 20% discount price of £32: click here to order online and use discount code CV7 at the checkout.