The reasonable accommodation of religion in the workplace has been a growing issue. There are two basic types of cases.
1. Cases which involve issues not directly related to the job performed by the employee.
i. Nadia Eweida, a British Airways worker, was told she couldn’t wear a cross as a sign of her Christian faith. She was subsequently allowed to wear it and the European Court of Human Rights gave BA a slap on the wrists, judging that her right to manifest her religious belief under Article 9 of the European convention was being infringed without good reason.
ii. Shirley Chaplin, a hospital nurse, made a similar claim but unlike Eweida she lost her case as her employer pleaded reasonable grounds (health and safety) for forbidding jewellery.
iii. Victoria Wasteney was disciplined by her employer due to her efforts to convert a Muslim colleague. She lost her appeal for reasons I’ll mention below.
2. Cases which are directly related to the job performed by the employee.
i. Lillian Ladele, a civil servant who worked as a registrar of births, deaths and marriages was disciplined for refusing to do work in connection with registering civil partnerships of gay couples.
ii. Gary McFarlane was a counsellor working for Relate who lost his job for refusing to do counselling sessions for gay couples.
iii. Stephen Copsey was dismissed for the refusal to work on Sunday.
There is, I think, a decent case for a reasonable accommodation with respect to the first set of cases, but not the second, which call not for reasonable accommodation but for special treatment.
One of the strengths of our society is its pluralist nature. Who wants a society where everyone thinks, acts, and dresses the same? Or worse, where people are afraid to speak about issues of controversy lest they offend someone? Does anyone seriously think wearing a cross is a hindrance to performing one’s duty as an employee? If we didn’t have the right to express and practice beliefs the idea of freedom of religion would be a vacuous one. Unless there is good reason – as in case 1(ii) above – to forbid certain items of clothing or jewellery – then I suggest we err on the side of freedom and individualism, and defend individuals – in law – against infringements on their freedom when there is no good reason.
With respect to employee-employee conversion attempts I think that a hands-off approach should be the default policy. Two adults should be able to engage in whatever discussion they like – as long as it doesn’t get in the way of their work – without worrying if they are breaking some silly censorious rule. Of course, if behaviour becomes inappropriate or unwanted by one or other of the parties, then an employer should be able to interfere. In case 1(iii) above, Ms Wasteney was in a superior position to the Muslim in the organisation, and engaged in unwanted behaviour such as laying her hands on her Muslim colleague to pray for her. So, Wasteney was not being denied freedom to manifest her religion in accordance with the European Convention on Human Rights, but rather she was being denied – quite rightly – the right to engage in unwanted, non-consensual conduct. The freedom to manifest one’s religion does not afford a right to encroach the rights of others in such ways, and Article 9(2) of the European Convention is explicit on this point.
Which brings me to the second set of cases. When a person takes a job the organisation in question has certain rights over them. Most jobs are governed by a contract of employment, and failure to fulfil the terms of that contract quite rightly brings consequences. Take case 2(ii) above. Upon taking the job Gary McFarlane signed an equal opportunities commitment and only afterwards wanted to be excused from counselling same-sex couples. There could have been no “reasonable accommodation” if the employer was to fulfil its purpose, and Mr McFarlane should not have taken this job any more than a vegan should take a job in a butcher’s shop. The same goes for any other case in this category. The beliefs we hold might well bring consequences for us, but that is our problem and not the problem of everyone else to accommodate it. Of course, it might be a nice thing for an employer to make adjustments to suit the whims of a religious believer. For example, it might well suit the employer to deploy a Muslim employee to a place they won’t have to sell alcohol. Alternatively it might suit non-Christian employees to work on a Sunday so the Christian doesn’t have to. But this does not mean the believers in question have a right to have their foibles accommodated and protected by the full force of the law. It might well be the case that the non-Christian values his Sundays off just as much, and why should he have to sacrifice them?
Furthermore, if we decide that there should always be a reasonable accommodation for religious beliefs, what’s to stop an employee from pleading this in all manner of cases? Suppose I decide that it’s my firm religious belief that God forbids working before lunchtime. Should my employer be obliged to jump through all manner of hoops to accommodate me? In fact, on what grounds should religious beliefs be treated in this special way rather than ethical or political beliefs? Suppose I decide that obesity is a lifestyle I don’t want to support, can I rightly refuse to sell sweets and products high in fat to obese people? If religious beliefs concerning the sale of alcohol are to be accommodated, why aren’t these other beliefs? That way lies chaos. Surely if a person who works in a butchers shop decides to become a vegan he has only one choice: to leave his job. Part of what it means to be a mature and rational adult is the acceptance that one’s beliefs and lifestyle choices have consequences which must be accepted. Demanding the right to have everyone accommodate you betrays a staggeringly arrogant sense of entitlement.
Individuals are free to think and believe as they like, but in seeking to manifest those thoughts and beliefs in actions in the workplace they cannot rightly expect special treatment. No-one has a right to have one’s beliefs validated, particularly when the rights of others, the interests of the business, and fairness with respect to ones co-workers are also at stake; none of which are trumped by claimed religious rights. If all are to be treated equally then no one should expect preferential treatment or exemptions from certain jobs as of right: neither Christian, nor Jew, nor gay, nor straight. All are – and must be – equal under the law.
Stephen J. Graham