Freedom of Religion and its Expression at Work

7 Sep

There was an interesting hearing at the European Court of Human Rights earlier this week on the question noted above – how far (if at all) can people insist on expressing their faith at work ? These may involve symbolic expressions (a cross or a crucifix would be Christian examples – other religions have turbans, headscarves etc) or they may affect when (eg not Fridays, not Saturdays, or not Sundays) people are willing or work, or whether they can conscientiously object to performing certain tasks (eg abortions). The applicants in this case (4 joined cases) are all Christians, but as the examples noted above show, the issue is far more general: readers will recall the Denbigh High School case on whether a young woman named Ms Begum could insist on wearing a jilbab to school irrespective of whether it was part of the school uniform.

The issue has received comment from various directions, and the webcast of the parties’ arguments is doubtless worth a viewing – tho’ you’ll need Microsoft Silverlight. Rosalind English on the UK Human Rights Blog nails her colours to the mast with a question that has little immediate relevance to the questions the ECHR needs to decide (although some interest perhaps in UK domestic politics), and the laissez-faire view that an employer can make what rules they like about employee religiosity has both a certain obviousness about it and the support of the National Secular Society (NSS) – but the (qualified) opposition of the Equality and Human Rights Commission. Ms English summarises both as ably as ever, before concluding with the NSS that religion is a matter of personal choice and can therefore be restricted freely.

Whatever one makes of this, this does seem to be the current law: both are questions of personal choice, but the employer’s always trumps the employee’s. In practice, of course, some form of discrimination may often be argued, since in practice many religions are concentrated amongst particular ethnic groups in particular places – and the ECHR seems to have noticed the more recent anti-discrimination rules in their preliminary hearing, reported on BAILII here.

The ECHR has been concerned in the past about the impact of the implicit distinction made in the Convention it polices between public life and private life – a celebrated example of this would be their Privacy cases where whatever the legal doctrine the reality is that the privately-owned newspapers are being told not exercise their freedom of expression in particular ways, out of respect for the privacy of others. There you have a clash between two important rights: in these cases, is the employer’s right to make whatever rules they like for their workforce lesser/equal/greater than their employees’ freedom of religion and (more to the point, as Ms English rightly points out, although some religious people would argue that that is an unreal distinction, as eg in the headscarf cases) to manifest their religion ?

The Court has a number of ways out of this available, of course. One would be to say that religious expression is irrelevant at work, and that just as what you do within your own home is no-one else’s business, so is what your employer makes/prevents you from doing entirely their business. If you don’t like it then you can get another job – and if all employers available object to your religion then you can get another one – since it is all personal choice, etc. Another might be to say that limits on employee expressions of religiosity must be reasonable in order to gain the protection of the Convention – and then delegate adjudicating upon that back to the national courts. That will tempt the Court if they are uneasy about the laissez-faire (for employers) approach, but would be very unpopular with the national Judges, who would then have to work out what was reasonable case-by-case – and expensive for employers and employees.

Watch this space …

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