Law and religion round-up – 7th March

Religious symbols and the CJEU

This week, the vexed issue of hijabs in the workplace surfaced yet again when Advocate General Rantos issued his Opinions in two challenges to bans on employees wearing the niqab when in contact with the public: WABE Case C-804/18 and MH Müller Handel Case C-341/19. He takes the view that the prohibition by a private undertaking on employees wearing visible signs of political, philosophical or religious beliefs in the workplace does not constitute direct discrimination on the grounds of religion or belief in respect of employees who follow certain clothing rules. However, he also takes the view that such a policy is not incompatible with employees wearing discreet religious symbols that are not noticeable at first glance.

According to AG Rantos, it is not for the Court to define “small-scale” because the context in which the sign is worn may be a relevant consideration, but he takes the view that a niqab is not a small-scale religious symbol. The national court must therefore examine the situation case by case. He notes that if the prohibition on wearing any visible sign of political, philosophical or religious beliefs in the workplace is permissible, the employer – within the context of the freedom to conduct a business – may also prohibit only the wearing of conspicuous, large-scale signs, but the prohibition must be implemented in a consistent and systematic manner, which is for the referring court to ascertain.

As to the German legislation, he considers that the national provisions do not conflict with the Equal Treatment Directive. They do not prohibit an employer from pursuing a policy of political, philosophical or religious neutrality but, rather, simply lay down an additional requirement for the implementation of such a policy – the existence of a sufficiently specific threat of an economic disadvantage for the employer or a relevant third party.

He concludes that a national court can apply national constitutional provisions to protect freedom of religion when examining an instruction based on an internal rule of a private undertaking that prohibits the wearing of signs of political, philosophical or religious beliefs in the workplace. However, those provisions must not undermine the principle of non-discrimination laid down in the Directive – which is for the referring court to ascertain.

For a highly critical analysis of the Opinion, see Martijn van den Brink, VerfassungsblogPreserving Prejudice in the Name of Profit.

For I’m not a Pirate King…

In Smith v British Columbia Human Rights Tribunal 2021 BCSC 331, the Supreme Court of British Columbia refused judicial review of the BC Human Rights Tribunal’s dismissal of a religious discrimination complaint filed by a member of the Church of the Flying Spaghetti Monster. The petitioner had challenged the Insurance Corporation of British Columbia’s refusal to issue him with a driving licence using a photo showing him wearing a pirate’s tricorn hat. The Tribunal had ruled that the protection of “religion” in the Provincial Human Rights Code, RSBC 1996 included protecting the expression of non-belief and the refusal to participate in religious practice but did not extend to accommodating a practice satirising religious practice in providing a service customarily available to the public.

In refusing to overturn the Tribunal’s decision, the Court said that “the Tribunal’s Decision was neither clearly irrational nor so flawed that no amount of curial deference can justify letting it stand.  Accordingly, it cannot be said to have been patently unreasonable” [30] [With thanks to Howard Friedman].

Easing of lockdown in England

The first step in the easing of lockdown in England commences tomorrow, 8 March. The staged easing of the lockdown is summarized in our post COVID-19: easing the lockdown in England & Scotland and more recently by the Church of England’s Four step government roadmap, based upon the Government’s Reopening Roadmap, published on 22 February 2021. Legislation relating to Step One, The Health Protection (Coronavirus) (Wearing of Face Coverings in a Relevant Place and Restrictions: All Tiers) (England) (Amendment) Regulations 2021, SI 2021/247 and Explanatory Memorandum , was published last week.

These Regulations amend the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020 (S.I. 2020/791) to make provision in relation to the wearing of face coverings in polling stations. These Regulations also amend the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 (S.I. 2020/1374) to permit outdoor recreation, gatherings related to electoral activities, to introduce a requirement to declare the reason for leaving or being outside the place where a person is living, when that person is travelling outside the United Kingdom, and to make other minor amendments.

And in Quires and Places where they sing (or not)…

On Thursday in the House of Lords, the Bishop of Leeds asked Lord Bethell, Parliamentary Under Secretary of State for Health and Social Care, if his Department could “offer a roadmap for when singing by choirs and congregations will once again be allowed, with sufficient time to prepare” before Holy Week and Easter. To which Lord Bethell replied

“I am entirely sympathetic to the question posed by the right reverend Prelate. I cannot think of anything nicer than spending Easter at Salisbury Cathedral listening to the beautiful singing of the choir there. We will be led, however, by the public health practicalities on that. It has been one of the most heartbreaking aspects of this pandemic that those who seek sanctuary through worship have not been able to join the rest of their community, but the practicalities of the spread of the virus are unavoidable, so we will be led by public health advice in this matter. I do not have a date for his roadmap, I fear, but his considerations are very much understood in the department.”

To emphasize this latter point, the Royal School of Church Music (RSCM) and the Cathedral Organists’ Association (COA) have posted a Draft Roadmap for the Resumption of Singingwhich states that they made representations via the Church of England’s Places of Worship taskforce, including a draft roadmap for the resumption of singing in a range of contexts. These points “have been raised and received proper consideration; the deliberations of this group are informing Government planning”.

Legal Opinions Concerning the Church of England

An updated version of the Legal Opinions Concerning the Church of England is now available on the Church of England website here. Although the text of all the Opinions was already on the website, the recent consolidation has made it fully searchable for keywords. However, six opinions from January 2019 onwards are still in PDF only and are still separately listed on the site. [Our updated post Re-launched CofE website: legal opinions & ors provides links to the PDF versions of these and other Opinions].

Religion and belief in charity law: forthcoming conference

Conference fee reduced to £20 for bookings made by 31 March.

For further details and a booking form please contact Mrs Anne Duddington, Administrator, Edmund Plowden Trust, 6 Hanbury Park Road, Worcester WR2 4PB: +44 (0)1905 423131 or admin@lawandjustice.org.uk.

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