religious exceptions and role of reasonable accommodation

311 Pages·2013·1.91 MB·English

LOCATING RELIGIOUS LIBERTY IN THE UNITED
KINGDOM: RELIGIOUS EXCEPTIONS AND ROLE OF
REASONABLE ACCOMMODATION

Thesis submitted in accordance with the requirements of
the University of Liverpool for the degree of Doctor in Philosophy

by

Matthew Jonathan Roland Gibson

September 2012
i

ABSTRACT

This thesis is concerned with the special protection afforded religion in United
Kingdom (UK) anti-discrimination law. Initial discussions centre on the historical
and normative bases for religious liberty in the UK. These debates assess the
evolution of domestic legal protection of religion and critique prevailing principles
(in particular, the idea of human dignity) underpinning the variety of that protection.
Attention is then focused on religious exceptions in UK anti-discrimination law and
the practical extent to which they assist religious interests. It is clear that such special
measures are aimed at religion as a collective; they do not enhance protection at the
individual level. This deficit becomes more acute when considering the limiting
effects of recent UK jurisprudence, specifically claims involving religion and
discrimination across employment and the provision of goods and services. A
particularly problematic trend exhibited in the case law is the courts’ approach to
determining justification and proportionality in indirect discrimination.

Accordingly, an argument is made for additional special protection. A duty of
reasonable accommodation is proposed as a separate claim route in UK anti-
discrimination law for religious individuals wishing to be excused from a rule. This
is advocated in the field employment, it being noted that the field of goods and
services poses challenges for the introduction of such a duty. Comparative analyses
with Canada and the United States (US) expose two different models of reasonable
accommodation. These are applied to high-profile UK cases featuring religion and
indirect discrimination in employment, revealing how reasonable accommodation
might have assessed those claims differently. It is submitted that the Canadian model
provides a more sophisticated proportionality analysis than its US counterpart. This
approach affords a more factually nuanced analysis in balancing the religious claim
with a competing legitimate aim. It is contended that such a duty also coheres with
both the theory of human dignity and the notion of equality as it features in the
conceptual framework of anti-discrimination law.
ii

CONTENTS

ABSTRACT i
CONTENTS ii
TABLE OF CASES ix
TABLE OF STATUTES xvii
TABLE OF INTERNATIONAL INSTRUMENTS xxviii
ACKNOWLEDGEMENTS xxix
INTRODUCTION xxx

PART I CHARTING RELIGIOUS LIBERTY IN THE UNITED
KINGDOM

Chapter 1: A History of Religion in the United Kingdom 1
1. INTRODUCTION 1
2. THE DEVELOPMENT OF ESTABLISHMENT 1
2.1 The rise of Anglicanism 1
2.2 Presbyterianism 3
2.3 Consequence of early establishment 4
3. THE MODERN ESTABLISHED CHURCHES 4
3.1 Disestablishment in Ireland and Wales 4
3.2 Establishment in England 4
3.3 Establishment in Scotland 6
4. THE EFFECTS OF ESTABLISHMENT: RELIGIOUS 7
PERSECUTION
4.1 Inter- and intra-faith challenges 7
5. TOWARDS GREATER RELIGIOUS LIBERTY 8
5.1 Religious emancipation 8
6. FUTURE CHALLENGES 10
6.1 The church-state relationship 10
6.2 The limits of self-governance 11
6.3 The role of the courts in religious liberty claims 12
7. CONCLUSION 15

Chapter 2: Normative Perspectives on Law and Religion 17
1. INTRODUCTION 17
2. HUMAN DIGNITY 17
3. TOLERATION 20
4. NEUTRALITY 22
5. CONCLUSION 25
5.1 Plurality of justifications 25
5.2 Application of justifications across law and religion 27
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Chapter 3: Legal Protection of Religion and the Use of Religious 29
Exceptions
1. INTRODUCTION 29
2. THE MAIN PILLARS OF DOMESTIC RELIGION LAW 30
2.1 Criminal law 30
2.2 Human rights law 30
2.3 Anti-discrimination law 32
2.3.1 Initial efforts to prohibit religious discrimination 32
2.3.2 Religious discrimination and the Equality Act 35
2010
2.4 Cumulative effect of religion law 38
3. THE PHENOMENON OF RELIGIOUS EXCEPTIONS 39
3.1 A focus on religious exceptions? 41
3.2 Issues of terminology 45
4. CONCLUSION 48

PART II A CASE-STUDY ON RELIGIOUS EXCEPTIONS IN
UNITED KINGDOM ANTI-DISCRIMINATION LAW

Chapter 4: Religious Exceptions in Employment 50
1. INTRODUCTION 50
2. GENUINE OCCUPATIONAL REQUIREMENTS 51
2.1 Sex discrimination 51
2.2 Sexual orientation discrimination 51
2.3 Religion or belief discrimination 53
3. EXCEPTIONS FOR ORGANISED RELIGION 55
3.1 Sex discrimination 55
3.1.1 Sex Discrimination Act 1975 56
3.1.2 Employment Equality (Sex Discrimination) 58
Regulations 2005
3.1.3 Equality Act 2010 60
3.2 Sexual orientation discrimination 61
4. EXCEPTIONS FOR EMPLOYERS WITH AN ETHOS BASED 64
ON RELIGION OR BELIEF
4.1 Religion or belief discrimination 64
5. EXCEPTIONS FOR FAITH SCHOOLS 66
5.1 Religion or belief discrimination 66
6. CONCLUSION 68

Chapter 5: Religious Exceptions in the Provision of Goods and Services 70
1. INTRODUCTION 70
2. SEX DISCRIMINATION 70
3. SEXUAL ORIENTATION DISCRIMINATION 72
4. RELIGION OR BELIEF DISCRIMINATION 75
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5. CONCLUSION 77

PART III BEYOND RELIGIOUS EXCEPTIONS: INTRODUCING
COMPARATIVE MODELS OF ‘REASONABLE
ACCOMMODATION’

Chapter 6: Reasonable Accommodation and the United Kingdom 79
1. INTRODUCTION 79
2. OUTSIDE THE RELIGIOUS EXCEPTIONS 80
2.1 Domestic anti-discrimination law and the protection of 82
religion
2.1.1 Issues common to employment 84
2.1.2 Issues common to employment and provision of 86
goods and services
3. REASONABLE ACCOMMODATION 88
3.1 A new religious exception system in anti-discrimination 89
law
3.2 Models of reasonable accommodation 90
3.2.1 Reasonable adjustments and disability in the 91
United Kingdom
3.3 Locating reasonable accommodation in anti-discrimination 95
law
4. CONCLUSION 98

Chapter 7: Reasonable Accommodation of Religion in Canada 100
1. INTRODUCTION 100
2. LAW AND RELIGION IN CANADA 101
2.1 Religious discrimination mechanisms in Canada 101
3. ASSESSING DISCRIMINATION IN CANADA 103
4. THE REASONABLE ACCOMMODATION DUTY 103
4.1 The duty in employment 106
4.1.1 Financial cost to the employer 109
4.1.2 Disruption of a collective agreement 110
4.1.3 Problems of morale for other employees 110
4.1.4 The inter-changeability of workforce and 111
facilities
4.1.5 The size of the employer 114
4.1.6 Where safety is in issue, both the magnitude of 115
the risk and the identity of those who bear it
4.2 The duty in goods and service provision 115
4.3 A duty in other areas? 120
5. CONCLUSION 122
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Chapter 8: Reasonable Accommodation of Religion in the United States 125
1. INTRODUCTION 125
1.1 Law and religion in the United States 125
1.2 Religious discrimination mechanisms in the United States 127
2. ASSESSING DISCRIMINATION IN THE UNITED STATES 130
3. THE REASONABLE ACCOMMODATION DUTY 130
3.1 The duty in employment 132
3.1.1 Outside the scope of undue hardship: spiritual 136
hardship
3.1.2 Inside the scope of undue hardship: economic 137
hardship
3.1.3 Inside the scope of undue hardship: automatic 138
non-economic hardship
3.1.4 Inside the scope of undue hardship: factors 140
refuting non-economic hardship
3.1.5 Inside the scope of undue hardship: factors 144
suggesting non-economic hardship
4. ‘ACCOMMODATION’ IN FREE EXERCISE OF RELIGION 149
CLAIMS
5. CONCLUSION 153

PART IV APPLYING THE REASONABLE ACCOMMODATION
MODELS: REVISITING RELIGIOUS DISCRIMINATION IN THE
UNITED KINGDOM

Chapter 9: Religion and Sexual Orientation 156
1. INTRODUCTION 156
2. McCLINTOCK v. DEPARTMENT FOR CONSTITUTIONAL 156
AFFAIRS
3. McCLINTOCK: APPLYING THE CANADIAN MODEL 158
3.1 Financial cost to the employer / size of the employer 158
3.2 Problems of morale for other employees 159
3.3 Inter-changeability of the workforce / size of employer 160
3.4 Other undue hardship factors 162
3.4.1 Internal policies and external public relations 162
4. McCLINTOCK: APPLYING THE UNITED STATES MODEL 163
4.1 Economic hardship 163
4.2 Automatic non-economic hardship 164
4.3 Factors refuting or suggesting non-economic hardship? 165
5. LADELE v. LONDON BOROUGH OF ISLINGTON 166
6. LADELE: APPLYING THE CANADIAN MODEL 169
6.1 Financial cost to the employer / size of the employer 172
6.2 Problems of morale for other employees 172
6.3 Inter-changeability of the workforce / size of the employer 173
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6.4 Other undue hardship factors 175
6.4.1 Internal policies and external public relations 175
6.4.2 Legal obligations on the employer 178
7. LADELE: APPLYING THE UNITED STATES MODEL 184
7.1 Economic hardship 185
7.2 Automatic non-economic hardship 185
7.3 Factors refuting or suggesting non-economic hardship? 186
8. McFARLANE v. RELATE AVON LTD. 187
9. McFARLANE: APPLYING THE CANADIAN MODEL 189
9.1 Financial cost to the employer / size of the employer 189
9.2 Problems of morale for other employees 189
9.3 Inter-changeability of the workforce / size of the employer 190
9.4 Other undue hardship factors 191
9.4.1 Internal policies and external public relations 191
10. McFARLANE: APPLYING THE UNITED STATES MODEL 193
10.1 Economic hardship 193
10.2 Automatic non-economic hardship 193
10.3 Factors refuting or suggesting non-economic hardship? 194

Chapter 10: Religion and Employer Dress Codes 196
1. AZMI v. KIRKLEES METROPOLITAN COUNCIL 196
2. AZMI: APPLYING THE CANADIAN MODEL 198
2.1 Financial cost to the employer / size of the employer 198
2.2 Problems of morale for other employees 198
2.3 Inter-changeability of the workforce / size of the employer 199
2.4 Other undue hardship factors 200
2.4.1 The veil and communication 200
3. AZMI: APPLYING THE UNITED STATES MODEL 202
3.1 Economic hardship 202
3.2 Automatic non-economic hardship 202
3.3 Factors refuting or suggesting non-economic hardship? 203
4. HARRIS v. NKL AUTOMOTIVE LTD 204
5. HARRIS: APPLYING THE CANADIAN MODEL 205
5.1 Financial cost to the employer / size of the employer 205
5.2 Problems of morale for other employees 206
5.3 Inter-changeability of the workforce / size of the employer 206
5.4 Other undue hardship factors 207
5.4.1 Employer’s image and employee’s dress 207
6. HARRIS: APPLYING THE UNITED STATES MODEL 209
6.1 Economic hardship 209
6.2 Automatic non-economic hardship 209
6.3 Factors refuting or suggesting non-economic hardship? 209
7. EWEIDA v. BRITISH AIRWAYS PLC 210
8. EWEIDA: APPLYING THE CANADIAN MODEL 212
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8.1 Financial cost to the employer / size of the employer 212
8.2 Problems of morale for other employees 212
8.3 Inter-changeability of the workforce / size of the employer 213
8.4 Other undue hardship factors 214
8.4.1 Employer’s image and employee’s dress 215
9. EWEIDA: APPLYING THE UNITED STATES MODEL 216
9.1 Economic hardship 216
9.2 Automatic non-economic hardship 216
9.3 Factors refuting or suggesting non-economic hardship? 217
10. CHAPLIN v. ROYAL DEVON AND EXETER HOSPITAL NHS 218
FOUNDATION TRUST
11. CHAPLIN: APPLYING THE CANADIAN MODEL 220
11.1 Financial cost to the employer 220
11.2 Problems of morale for other employees 221
11.3 Inter-changeability of the workforce / size of the 221
employer
11.4 Workplace health and safety 222
11.5 Other undue hardship factors 224
11.5.1 Employer’s image and employee’s dress 224
12 CHAPLIN: APPLYING THE UNITED STATES MODEL 225
12.1 Economic hardship 225
12.2 Automatic non-economic hardship 225
12.3 Factors refuting or suggesting non-economic hardship? 226

Chapter 11: Religion and Work Schedules 228
1. CHERFI v. G4S SECURITY SERVICES 228
2. CHERFI: APPLYING THE CANADIAN MODEL 230
2.1 Financial cost to the employer / size of the employer 230
2.2 Problems of morale for other employees 232
2.3 Inter-changeability of the workforce / size of the employer 232
3. CHERFI: APPLYING THE UNITED STATES MODEL 233
3.1 Economic hardship 233
3.2 Automatic non-economic hardship 234
3.3 Factors refuting or suggesting non-economic hardship 234
4. COPSEY v. WWB DEVON CLAYS LTD. 235
5. COPSEY: APPLYING THE CANADIAN MODEL 237
5.1 Financial cost to the employer / size of the employer 237
5.2 Disruption of a collective agreement 240
5.3 Problems of morale for other employees 240
5.4 Inter-changeability of the workforce / size of the employer 241
6. COPSEY: APPLYING THE UNITED STATES MODEL 241
6.1 Economic hardship 241
6.2 Factors refuting or suggesting non-economic hardship? 242
viii

PART V POSITIONING PROTECTION: RELIGIOUS EXCEPTIONS
AND REASONABLE ACCOMMODATION IN THE UNITED
KINGDOM

Chapter 12: Conclusion 243
1. RELIGION AND RELIGIOUS EXCEPTIONS 243
2. RELIGIOUS INDIVIDUALS AND REASONABLE 244
ACCOMMODATION : THE LEGAL FRAMEWORK
3. THE CASE FOR REASONABLE ACCOMMODATION 247
3.1 Theoretical imperatives 247
3.2 Conceptual imperatives 248
3.3 Practical imperatives 250
3.3.1 The benefits of proportionality 250
3.3.2 The problem with certainty 252
3.3.3 The impact of Canadian reasonable 254
accommodation in the cases in Part IV
3.4 Institutional and stakeholder imperatives 257
4. FINAL REMARKS 261

Bibliography 262
ix

TABLE OF CASES
England and Wales
Adewole v. Barking, Havering and Redbridge University Hospitals NHS Trust
[2011] ET (unreported).
Archibald v. Fife Council [2004] UKHL 32.
Azmi v. Kirklees Metropolitan Council [2007] IRLR 484.
British Gas Services Ltd v. McCaull [2001] IRLR 60, EAT.
British Telecommunications Plc v. Ticehurst [1992] ICR 383.
Catholic Care v. Charity Commission for England and Wales [2011] UKFTT B1
(General Regulatory Chamber).
Chaplin v. Royal Devon and Exeter Hospital NHS Foundation Trust [2010] ET
1702886/2009.
Cherfi v. G4S Security Services [2011] EqLR 825.
Christ of Latter Day Saints v. Price [2004] EWHC Admin 325.
Clark v. TGD Ltd t/a Novacold [1999] ICR 951.
Copsey v. WWB Devon Clays Ltd. [2005] EWCA Civ 932.
Cosgrove v. Caesar & Howie [2001] IRLR 653.
English v. Thomas Sanderson Blinds Ltd [2008] EWCA Civ 1421.
Eweida v. British Airways PLC [2009] IRLR 78; [2010] EWCA Civ 80.
Fareham College Corporation v. Walters [2009] IRLR 991.
Farrell v. South Yorkshire Police Authority [2011] EqLR 934.
Hall and Preddy v. Bull and Bull [2011] EW Misc 2 (CC); [2012] EWCA Civ 83.
Harris v. NKL Automative Ltd. [2007] UKEAT 0134_07_0310.
Hubble v. Brooks Case no. 2200027/05 (4887/106).