Commission proposes ‘reasonable accommodation’ for religion or belief

11 July 2011

Judges have interpreted the law too narrowly in religion or belief discrimination claims, the Commission has said in its application to intervene in four cases at the European Court of Human Rights all involving religious discrimination in the workplace.

If given leave to intervene [1] , the Commission will argue that the way existing human rights and equality law has been interpreted by judges is insufficient to protect freedom of religion or belief.

It will say that the courts have set the bar too high for someone to prove that they have been discriminated against because of their religion or belief; and that it is possible to accommodate expression of religion alongside the rights of people who are not religious and the needs of businesses [2].

The Commission is concerned that rulings already made by UK and European courts have created a body of confusing and contradictory case law. For example, some Christians wanting to display religious symbols in the workplace have lost their legal claim so are not allowed to wear a cross, while others have been allowed to after reaching a compromise with their employer.

As a result, it is difficult for employers or service providers to know what they should be doing to protect people from religion or belief based discrimination. They may be being overly cautious in some cases and so are unnecessarily restricting people’s rights. It is also difficult for employees who have no choice but to abide by their employers decision.

The Commission thinks there is a need for clearer legal principles to help the courts consider what is and what is not justifiable in religion or belief cases, which will help to resolve differences without resorting to legal action. The Commission will propose the idea of ‘reasonable accommodations’ that will help employers and others manage how they allow people to manifest their religion or belief.

For example, if a Jew asks not to have to work on a Saturday for religious reasons, his employer could accommodate this with minimum disruption simply by changing the rota. This would potentially be reasonable and would provide a good outcome for both employee and employer.

John Wadham, Group Director, Legal, at the Commission, said:

"Our intervention in these cases would encourage judges to interpret the law more broadly and more clearly to the benefit of people who are religious and those who are not.

"The idea of making reasonable adjustments to accommodate a person’s needs has served disability discrimination law well for decades.  It seems reasonable that a similar concept could be adopted to allow someone to manifest their religious beliefs."

The intervention follows a report for the Commission which found that many people do not understand their rights around religion or belief.  The Commission is concerned that this could be preventing people from using their rights.

Ends

For more press information contact the Commission’s media office on 020 3117 0255, out of hours 07767 272 818.

For general enquiries please contact the Commission’s national helpline: England 0845 604 6610, Scotland 0845 604 5510 or Wales 0845 604 8810.

Notes to editors

[1] Interventions

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)

The UK Parliament has recognised the value of the Commission’s expertise, imposing on it an obligation to intervene in certain legal proceedings by virtue of section 30 of the Equality Act. When intervening, the Commission acts as an independent party providing expert advice to the court. The Commission takes a strategic approach when deciding to intervene.  It will generally intervene in cases where it can use its expertise to clarify or challenge an important area of the law.  The cases generally involve serious matters of public policy or general public concern.  The outcome of these cases often has a wide impact as they set precedents to be followed by the lower courts.

[2] Legal framework for religion or belief protection

The law protects people who do not have a religious belief, such as atheists or humanists, as well as people who have a religious belief. People are protected from discrimination based on their religion or belief in many settings, such as when shopping, eating out or playing sport as well as at work. Religion or belief is specifically protected by the Equality Act 2010. People were protected from religious discrimination in the workplace from 2003 and in the provision of goods and services from 2006. The Human Rights Act 1999 gives people an absolute right to 'freedom of thought, conscience and religion' but notes there can be justifiable limitations to people’s right to manifest their religion or belief.

The Equality and Human Rights Commission

The Commission is a statutory body established under the Equality Act 2006, which took over the responsibilities of Commission for Racial Equality, Disability Rights Commission and Equal Opportunities Commission.  It is the independent advocate for equality and human rights in Britain.  It aims to reduce inequality, eliminate discrimination, strengthen good relations between people, and promote and protect human rights.  The Commission enforces equality legislation on age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation, and encourages compliance with the Human Rights Act.  It also gives advice and guidance to businesses, the voluntary and public sectors, and to individuals.