I. Introduction
This article explores the level of protection that religious employeesFootnote 1 receive in United Kingdom (UK)Footnote 2 anti-discrimination law, specifically indirect discrimination. In Part II, attention focusses on the UK courts' analysis of related indirect discrimination claims, in particular their assessments of disadvantage and proportionality. It is argued, respectively, that these assessments preclude both an individualised approach to religious discrimination and, ultimately, the pursuit of maximum protection. This is problematic because affirmation of individual human dignity (which links with ideas of equality and autonomy) has emerged as a distinct imperative across normative dialogue in law and religion scholarship.Footnote 3 Moreover, doctrinal scope remains for enhanced realisation of the individual human dignity principle: arguably, the courts could facilitate greater accommodation of religious employees, albeit proportionately balanced so as to not challenge an employer's legitimate aim.
Accordingly, Part II establishes a case for change. It frames the courts' adjudication of indirect religious discrimination claims (through consideration of the disadvantage and proportionality tests) as precipitating a ‘dilution’ of individual religious freedoms. This dilution exists against a backdrop of putative protection designed to reinforce such freedoms.Footnote 4 Part III suggests that these issues can be better addressed by an employer duty of reasonable accommodation. This is discussed as an alternative claim route for religious employees in UK anti-discrimination law. Reasonable accommodation is suited to such a task as it attempts to adjust workplace rules on an individual basis in order to mitigate the continuing operation of those rules. The influential and prominent Canadian model of reasonable accommodation is outlined before being systematically applied in Part IV to UK case law concerning indirect religious discrimination in the workplace. Part V suggests that this exercise highlights how the more considered proportionality assessment in Canadian reasonable accommodation would have required domestic judges to pursue a more rigorous mode of accommodation. This factor, along with awareness of individual disadvantage, could add value to the adjudication of religious employee claims in the UK. More generally, Part V also scrutinises the broader implications of introducing an employer duty of reasonable accommodation for religion to the UK. These implications raise challenging issues for a variety of affected stakeholders across the wider equality landscape. Part VI offers some concluding thoughts on how to view the case for reasonable accommodation of religious employees in the UK.
This investigation is particularly timely given publication in January 2013 of the European Court of Human Rights (ECtHR) judgment in Eweida and Others v UK (Eweida and Others).Footnote 5 Indeed, it is these conjoined applications which form the basis of the reasonable accommodation analysis in Parts IV and V. The research provides a unique opportunity both to enhance domestic understanding of reasonable accommodation in employment and to fundamentally re-evaluate the religious employee accommodation debate in the UK. Existing literature already establishes that human dignity presents a persuasive justification for legal protection of individual religious adherents.Footnote 6 Moreover, scholars regularly critique the courts' treatment of such adherents in UK indirect discrimination law,Footnote 7 these analyses addressing issues of proportionality and group protection versus individual protection in the employment sphere. Meanwhile, other commentators have highlighted the role of reasonable accommodation for religious employees in other jurisdictions and how the doctrine is conceptually situated in anti-discrimination law.Footnote 8
This article aims to fill a gap in the field by applying a model of reasonable accommodation in the UK employment context to reveal how a more pragmatic approach to accommodation may afford increased manoeuvrability in the proportionality balance. This novel exercise demonstrates how operation of reasonable accommodation could, perhaps controversially, change practices in the UK workplace. It also outlines the broader consequences which may obtain from adoption of the doctrine; particularly in connecting a human dignity standard with the focus on individual disadvantage and a likely increase in religious accommodation. The article defends the stridently individualised focus of reasonable accommodation. Legal disputes in employment necessarily operate at the individual level. Such a focus can be reconciled with not only collective religious liberty perspectives but also the roles of human dignity and equality as conceptual cornerstones of anti-discrimination law. Additionally, introduction of reasonable accommodation chimes with recent institutional and stakeholder enthusiasmFootnote 9 for a policy of sensible religious accommodation in the workplace.
II. Religion and Anti-discrimination Law in the UK
A. Protection
The UK'sFootnote 10Equality Act 2010 (EqA 2010) prohibits discriminationFootnote 11 against a range of specific “protected characteristics”. “Religion or belief” is included as a protected characteristic.Footnote 12 Whilst the EqA 2010's Explanatory Notes make it clear that the law will treat as a “religion” those faiths which have a “clear structure and belief system”Footnote 13 (applicable also to denominations within a religion), “belief” is defined widely to include any “philosophical belief”. This envisages a belief genuinely held that is not an opinion or viewpoint based on the present state of information available, that is to a weighty and substantial aspect of human life and behaviour, that attains a certain level of cogency, seriousness, cohesion and importance, that is worthy of respect in a democratic society, that is compatible with human dignity and that does not conflict with the fundamental right of others.Footnote 14 The Explanatory Notes confirm that non-religious beliefs (such as humanism and atheism) may count as philosophical beliefs.Footnote 15 To this extent, protection against religion or belief discrimination is symmetrical. “Philosophical belief” has also been found to include environmental beliefs,Footnote 16 a belief in public service broadcasting's capacity to promote cultural interchange and social cohesion,Footnote 17 a belief that foxhunting is wrongFootnote 18 and a belief in spiritualism, life after death and psychic powers.Footnote 19 It has been found not to include political beliefs,Footnote 20 conspiracy theoriesFootnote 21 or the belief in wearing a poppy to show respect to servicemen.Footnote 22
Discrimination on grounds of religion or belief can be either direct (s. 13) or indirect (s. 19). Direct discrimination occurs where A treats B less favourably than A treats or would treat others because of B's religion or belief. Such discrimination cannot be justified – there is no defence in the EqA 2010. Indirect discrimination takes place where A applies a provision, criterion or practice (PCP) to B which discriminates against B's religion or belief. A PCP is discriminatory where: i) it applies to persons with whom B does not share a religion or belief; ii) it puts, or would put, persons with whom B shares a religion or belief at a particular disadvantage when compared with others; iii) it puts, or would put, B at that disadvantage; and iv) A cannot show it to be a proportionate means of achieving a legitimate aim. A critical difference between direct and indirect discrimination is that the latter can be justified even if a disadvantage can be shown: the original legitimate aim behind the PCP must be proportionate in achieving its objective. The prohibition on religion or belief discrimination operates in, amongst other areas, employment (s. 39).
Direct and indirect discrimination are both claimed at the individual level. However, in relation to the indirect discrimination, the need for a comparator in establishing a disadvantage is observed as making “it easier to accommodate [religion or belief] claims based on collective practice than those based on individual conscience”.Footnote 23 Collective practice is also protected elsewhere. For example, recent decades have witnessed the creation of religious exceptionsFootnote 24 in UK anti-discrimination law. Exceptions exist to the prohibitions on both sex and sexual orientation discrimination where employment in a post is for the purposes of an organised religion.Footnote 25 An exception also exists to the prohibition on religious discrimination where employment in a post is for employers with an ethos based on religion or belief.Footnote 26 These exceptions clearly enhance religious liberty at the institutional level. Religions as collectives may benefit from them so as to run their internal affairs as they like. Esau claims this entails “giving to them a zone of liberty to at least hire their own members and enforce their own lifestyle norms that are otherwise discriminatory'”.Footnote 27 Consequently, Rivers affirms that the exceptions assist “in preserving the group's right to maintain its identify”.Footnote 28 As Sandberg notes, they address “the extent to which religious groups are expected to live up to secular standards”.Footnote 29 Such dispensation does not apply to individuals of conviction seeking a personal “exception”.
B. Justification for Protection
The range of religion or belief protection in UK anti-discrimination law is supported by numerous justifications.Footnote 30 Across law and religion scholarship, the concept of human dignity has emerged as a popular paradigm in normative discourse. Whilst recognition of human dignity is perhaps most closely associated with protecting human rights, including freedom of religion,Footnote 31 it is increasingly viewed as an appropriate reason for protecting religion or belief in anti-discrimination law. Vickers, for example, remarks that “[f]ull and meaningful enjoyment of autonomy, equality and dignity … requires protection for both freedom from religious discrimination and freedom of religion”.Footnote 32 Moon also notes the increasing dignity discourse present in anti-discrimination law.Footnote 33
The notion of human dignity is apt to promote legal protection of religion or belief at either the collective or individual levels. Khaitan, for example, submits that dignity “is seen sometimes as an individualistic ideal and at other times as a communitarian one”.Footnote 34 Likewise, Leigh also discusses dignity in the context of both individuals and groups.Footnote 35 However, many commentators have consistently affirmed dignity's role at the level of purely individual religion or belief. This relationship assumes, first, that religion or belief intrinsically forms part of both the essence and nature of being human (an ontological claim) and, secondly, that it is appropriate, if not necessary, to legitimise this on the basis of individual autonomy. The idea rests on the inherent value of human worth itself. Exploring these claims, Vickers argues – respectively – that religion or belief is “closely related to an individual's concept of identity and self-respect”Footnote 36 and that it is “protected because it is a key aspect of personality and autonomy, based on personal choices about conceptions of the good”.Footnote 37 Beyond this, discussion also exists as to how human dignity should shape the normative debate on the limits of legal protection of religion or belief. This is particularly the case in relation to “belief” which is defined more broadly than “religion” to include explicit reference to, amongst other factors, human dignity.Footnote 38 Evidently, reliance on dignity should not mean that all beliefs stemming from individual “conscience” are protectable. Vickers highlights that it is only those matters:
which feed into an individual's ability to make sense of the world, and through which they develop a sense of the good, that require protection. Thus a person's interest in being allowed to participate in, for example, country dancing because of its importance to them as a form of artistic expression will not require the same level of protection as a belief relating to the existence of a supreme being.Footnote 39
This idea is further echoed in the EqA 2010,Footnote 40 showing that even if dignity is a contested concept it is still influential in the legal domain as an indicator of protection limits.
Equality and autonomy also feature inherently in the framework of human dignity, this “situat[ing] [human dignity] as part of a broader moral and political philosophy”.Footnote 41 Moreover, “[e]ven if there is no agreement as to which is the foundational concept, they are deeply interlinked, and there is agreement that a commitment to providing protection for human rights can be based on the concepts of equality, dignity and autonomy”.Footnote 42 In relation to religion or belief, equality establishes that individual interests should be treated equally to other interests (formal equality), but also that sometimes religion or belief interests should be treated differently from other interests precisely because religion or belief is different (substantive equality).Footnote 43 Regarding the latter, the link between human dignity and equality particularly affords accommodation of personalised difference.Footnote 44 This links dignity yet again with recognition of individual conviction and identity. Of course, the justification of human dignity (along with autonomy and equality) does not automatically presume that religion or belief will transcend other interests. This can lead to problems, not least where two parties on either side of a clash may claim their dignity is impugned. In relation to religion, Vickers notes that human dignity “merely … demonstrate[s] that religious interests are valid interests that need consideration alongside other interests that flow equally from a concern for human dignity and equality”.Footnote 45 On this balance, McCrudden signals that, “many recent legislative interventions adopt ideas of proportionality when rights of interests conflict”.Footnote 46 Proportionality is revisited in detail below from Part III onwards.
C. Protection Diluted?
It could be contended that religion or belief thus enjoys appropriate, and indeed sufficient, legal recognition in employment at the UK anti-discrimination level. However, this belies a notable challenge. A rapidly expanding corpus of UK equality jurisprudence has seemingly diluted the protection of religion or belief interests at work where individual divergence from a norm is required. Within religion or belief, this dilution has mainly arisen in unsuccessful indirect discrimination claims. In turn, those claims have predominantly concerned religiousFootnote 47 interests across employment. Many of these are Employment Tribunal (ET) decisions although, for present purposes, the dilution of protection can be outlined by reference to decisions adjudicated in the Employment Appeal Tribunal (EAT) or above.Footnote 48
In employment, unsuccessful UK cases have generally featured three types of claim. The first involves a clash between an employee's religion and the extent to which that employee can fulfil their duties according to their beliefs about sexual orientation, such cases including McClintock,Footnote 49Ladele Footnote 50 and McFarlane.Footnote 51 The second type concerns the employee's wish to modify personal appearance in accordance with their religion or belief. These cases include Azmi,Footnote 52Harris,Footnote 53Eweida Footnote 54 and Chaplin.Footnote 55 The third type of claim relates to the conflict between an employee's obligation to attend religious observance ceremonies and their scheduled work duties. To date, Cherfi Footnote 56 is the only relevant appellate UK anti-discrimination judgment.
1. Common issues across employment
The employment judgments have restricted individual religious liberty in various ways. In Eweida the claimant failed in an indirect discrimination claim against her employer's refusal to allow her to wear a crucifix above her uniform. This was due to the fact that, prior to assessing disadvantage on the individual claimant, indirect discrimination requires that a provision “puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it”.Footnote 57 It was held that, as she was the only employee who had complained of the prohibition, there was no evidence that any other persons had been placed at a disadvantage.Footnote 58 As there was no identified group disadvantage there was no need to look at proportionality. The same conclusion as to lack of group disadvantage was found in Chaplin, citing the reasoning in Eweida.Footnote 59 These cases raise uncertainty over individual religious liberty under indirect discrimination, particularly where there may only be one affected employee in circumstances where indirect discrimination is the sole claim option.Footnote 60 It has been said that in such cases the courts, “underestimated the importance of individual religious convictions”.Footnote 61 Notwithstanding such comparator-based challenges, some have argued that it is possible – however strained – to interpret the use of the conditional “would apply; would put” as affording individual disadvantage where other (hypothetical) persons of the same view, were there to be any, would also be disadvantaged.Footnote 62 Unfortunately for those who are unable to establish group disadvantage, this argument has not found support from the domestic judiciary.Footnote 63 Of course, indirect discrimination exists to distribute equality of opportunity across communities; indeed, the courts' interpretation of disadvantage supports this.Footnote 64 However, Eweida and Chaplin highlight situations where an individual may seek to protect their religious interests in isolation. Whether this should be possible in the workplace, and if so how far, remains a live issue.Footnote 65
Even where group disadvantage is demonstrated, there remains the matter of justification via a proportionality analysis. Aside from Eweida and Chaplin, proportionality otherwise thwarted all the employment claims outlined above. An example of this is the “specific situation” rule which has developed in Article 9 ECHR (freedom of religion) jurisprudence. Accordingly, where a religious individual voluntarily submits to an arrangement (such a contract of employment) which places them in a specific situation (the employment itself), the possibility of that individual simply leaving the arrangement (for example, to take up an alternative job elsewhere) may be relevant to determining whether interference with religious freedom under Article 9(1) can be justified as proportionate under Article 9(2).Footnote 66 As such, “[t]his voluntary submission creates a ‘specific situation’ which limits the claimant's right”.Footnote 67 The specific situation rule is now viewed as influencing domestic judges' analyses of proportionality in workplace indirect discrimination claims: here, the balance often favours the employer. Sandberg duly concludes that, “[t]he jurisprudence in these two areas is no longer separated”.Footnote 68 Indeed, commentators have claimed this rule operated in, amongst other cases, Azmi Footnote 69 and both Ladele and McFarlane.Footnote 70 The decision in Azmi, aside from the specific situation rule, further acts as an example of the courts employer-friendly approach towards proportionality. For example, Vickers notes that whilst it was possible to identify alternative accommodations which may have favoured the claimant, the court took the view that, “the employer is under no obligation to offer the employee the least disadvantageous accommodation available”.Footnote 71 In side-lining the alternative solutions in favour of its own more restrictive proposal, the employer had not acted disproportionately. Whilst an employer's autonomy in regulating their workplace is surely important in any employee accommodation relationship, it may be asked whether the current balance provides as sufficiently constructive a forum for accommodation dialogue as might be possible?Footnote 72
In employment it is increasingly suggested that religion or belief comes below other characteristics in the protection “hierarchy”. The debate about whether it is legitimate to discern such a hierarchy as a result of the proportionality balance has been controversial. Frequently, religion or belief appears to have been subordinated to sexual orientation with some arguing that any hierarchy is a straightforward by-product of anti-discrimination law juridification. Rivers contends that, “courts have shown [a] … bifurcation between an essentialising view of sexuality and a choice-model of religion that has rendered irrelevant the concerns of those with tender consciences about complicity in behaviour they consider immoral”.Footnote 73 As the law views religion or belief as “chosen”Footnote 74 it may be wondered whether it can ever be placed above other protected characteristics in situations of clash?
The identification of a hierarchy of protection has become notorious in employment. It has been remarked that, “both the EAT in McFarlane and the Court of Appeal [(CA)] in Ladele failed ‘to conduct the balancing exercise’ between the two competing claims of religious discrimination and sexual orientation discrimination”.Footnote 75 This has led to Sandberg drawing the conclusion that where religion and sexual orientation clash in the workplace, “[t]here seems to be no [legal] recognition that equality policy protects discrimination on grounds of religion as well as on grounds of sexual orientation”.Footnote 76 In the sphere of employment this means that the option of last resort – the right to resign – is frequently the only realistic option. The apparent creation of such a hierarchy should be concerning from an equality perspective, as recognised by Malik who states that, “where there is a religion and sexuality conflict, it is important to take an approach that does not create a hierarchy between rights or equality grounds”.Footnote 77 Nevertheless, the creation of any hierarchy between religion or belief and sexual orientation is not problematic for all: there are those who suggest, for a variety of reasons, that conflict is inevitable.Footnote 78 However, the fact that the courts offer no detailed explanatory rationale for the existence of any such hierarchy is unsatisfactory. Whilst one interest may inevitably trump another in the proportionality balance, it will be arguedFootnote 79 that reasonable accommodation provides a more transparent framework than indirect discrimination in which to understand when and why such subordination occurs.
III. The role of reasonable accommodation
Trends clearly exist which may be interpreted as a dilution of protection for religious interests under UK indirect discrimination. These trends coalesce around proportionality; however, sometimes they also relate to determination of disadvantage. Whilst religious believers cannot expect carte blanche dispensation, the judgments pose on-going concerns about the level of protection such individuals receive in UK anti-discrimination law.
A possible solution to this dilution is the introduction of a doctrine of reasonable accommodation to the UK.Footnote 80 Indeed, reasonable accommodation joins with direct and indirect discrimination in forming a standard part of anti-discrimination law, either as a free-standing claim option or as part of the existing indirect discrimination framework. The doctrine itself has been described as a specific response, in the form of an individual exception, to an indirect discrimination.Footnote 81 Consolidating this idea, it has been reasoned that, “where the controversial measure seems the best way to achieve a certain legitimate objective, the adjustment of that measure by means of an exception may be the only way to eliminate the discriminatory character without compromising the measure's purpose”.Footnote 82 Interpreting the function of reasonable accommodation, Moon has commented that “the requirement of accommodation may rest on the view that there is something special or significant about religious beliefs that they are deeply rooted”.Footnote 83 Such a concept has the potential to better address individual religious interests in anti-discrimination law, in particular via a more sophisticated reconciling of competing positions.
The remainder of this article shall explore some of the issues surrounding adoption of a UK reasonable accommodation model for religion or belief in the workplace. The doctrine will be situated conceptually in existing anti-discrimination law, before a comparative model from Canada is outlined and applied to UK case law on indirect religious discrimination. For reasons of space, application of this model is limited to Ladele:Footnote 84 the intricate and challenging facts of this case best expose the proportionality analysis in the Canadian system.
Ladele also remains topical and relevant. The claimant, along with those in McFarlane, Eweida and Chaplin, recently applied to the ECtHR.Footnote 85 Eweida, Chaplin and McFarlane all invoked Article 9 separately and in conjunction with Article 14 ECHR (prohibition on discrimination);Footnote 86 Ladele only invoked Article 9 in conjunction with Article 14. Eweida successfully argued that the interference with her freedom of religion under Article 9(1) had been disproportionate under Article 9(2).Footnote 87 Interference with Chaplin, Ladele and McFarlane's freedom of religion was found to be proportionate under Article 9(2).Footnote 88 These four applications together represent the two most litigated areas of clash in employment, specifically religious conscience regarding sexual orientation and problems with employers' uniform policies.Footnote 89 They also relate to key issues identified in the jurisprudence.Footnote 90 Whilst the instant analysis centres on Ladele, the possibility of reasonable accommodation in McFarlane, Eweida and Chaplin is also briefly discussed at the end of this article.Footnote 91 Discussion duly concentrates on accommodation of individuals with a religious belief, although it is envisaged that any reasonable accommodation model would apply symmetrically across religion or belief.
Attention focusses on UK adoption of a reasonable accommodation duty in employment. Religious grievances in the workplace constitute the majority of relevant UK anti-discrimination claims. In any event, reasonable accommodation models are less established in other contexts: for example, the doctrine is very under-developed in Canadian goods and services provision.Footnote 92 The Canadian model has been selected as it constitutes one of the most identifiable and classic models of reasonable accommodation of religion. Scholarly research regularly references this example,Footnote 93 whilst it has also been cited with approval in the domestic courts.Footnote 94 According to Vickers, the Canadian experience is instructive, “as it may provide guidance on how to tackle the difficult questions of principle that are common to both the UK and Canada”.Footnote 95 The doctrine has played a similarly significant role in religious discrimination in the United States (USA). Indeed, “[t]he term ‘reasonable accommodation’ was born in the [USA] and was first used in connection with a duty to accommodate the religious beliefs of employees'”Footnote 96 However, in contrast to Canada, “the interpretation of the duty to accommodate [in the USA] has been somewhat restrictive, leaving employers with a most slender of duties to accommodate”.Footnote 97 This comment on the USA model's narrow approach to accommodation alludes to a contrast in the tests used by the Canadian and USA reasonable accommodation doctrines to determine the threshold of accommodation. These tests are explored in more detail below.Footnote 98 It is submitted that application of the USA system to UK case law would add little to attempts at finding flexibility for religious employee accommodation.
A. Reasonable Accommodation and UK Anti-Discrimination Law
Introduction of a UK employer reasonable accommodation duty (for religion or belief) connects with the conceptual framework of anti-discrimination law. Indeed, reasonable accommodation is a species of anti-discrimination law. There are sound bases for protecting discrimination against individuals, central amongst these being the concept of equality, already noted as a principle (intertwined with human dignity and autonomy) upon which legal protection of religion can be based. In critiquing formal equality, Connolly notes that “in cases involving religion, claimants will often be seeking different rather than equal treatment”.Footnote 99 Different treatment lies behind the operation of indirect discrimination; the same is true for reasonable accommodation. However, this is more subtle in relation to the latter. Whilst indirect discrimination uses differentiation in determining an outcome (as based on a comparator test), reasonable accommodation has no such comparator test. It focusses solely on any omission to provide a reasonable accommodation in the first place. Consequently, any resulting equality of opportunity is reached in contrasting ways: “reasonable accommodation discrimination typically emerges in response to the failure to make an adaptation to ensure equal opportunities and commonly does not follow from differentiation on a forbidden or seemingly neutral ground”.Footnote 100
Differentiation shifts the debate towards substantive equality. This conveys the idea that, “equality does not need to include the ‘same’ treatment, but may instead involve different groups being able to pursue their version of the good life”.Footnote 101 This underscores indirect discrimination which “is more concerned with the effects of any behaviour, rather than the nature of the behaviour itself”.Footnote 102 Indeed, such effects “must be concerned with both individuals and groups”.Footnote 103 Reasonable accommodation clearly concerns itself with individual detrimental impact. However, it sidelines the group to which the individual belongs, meaning that it does not seek to ensure equality of opportunity for all – only the individual seeking accommodation. This affirms the view that it is “generally framed in terms of an individual right”.Footnote 104 Accordingly, “it allows for an individualised approach to providing protection”,Footnote 105 which might better target the protection gaps already identified in Eweida and Chaplin (subject to assessment of proportionality). Alidadi observes that it is “[a] more direct and positive way of addressing [indirect discrimination]”.Footnote 106 Reasonable accommodation has also been seen as a way of enhancing individual human dignity. Moon argues that reasonable accommodation “underpins dignity, and in so doing it implies a need to be ready to adapt to the diverse situations of people from different backgrounds”.Footnote 107
Consequently, it is possible to arrive at a coherent conceptual understanding of reasonable accommodation. It provides individualised protection benefits which find a basis in (substantive) equality. Moreover, its relationship with human dignity provides an important normative link with legal protection of religion or belief.Footnote 108 A key difference with reasonable accommodation is that “disadvantage is not necessarily experienced by all or most members of a particular group, but is … experienced on the individual level, depending on both individual and environmental factors”.Footnote 109 Of course, the emphasis is ultimately on proportionality to undertake the work in determining whether an individual should be accommodated.
B. Models of Reasonable Accommodation
The concept of making reasonable accommodation is not entirely foreign to UK anti-discrimination law. From its inception in 1995, legislation dealing with disability Footnote 110 discrimination has contained a duty to provide “reasonable adjustments”.Footnote 111 This is the only protected characteristic to which reasonable adjustments is applied at the UK level, save for limited examples concerning pregnancy and maternity.Footnote 112 Following on from the Disability Discrimination Act 1995 (DDA), the most relevant claim routes now constitute discrimination “arising from disability” and the duty to make reasonable adjustments, both found in the EqA 2010.Footnote 113 Reasonable adjustments might offer a useful comparison with reasonable accommodation of religion. However, aspects of disability discrimination mark it out as different from other protected characteristics. The reasonable adjustments duty is asymmetrical:Footnote 114 favourable treatment afforded to a disabled employee cannot be used as the basis for a claim by a disgruntled able-bodied employee. In contrast, religious discrimination is symmetrical: it protects both religion and belief and a lack of religion and belief. This recognises that disability is different from other protected characteristics. Whilst the reasonable adjustments model could be applied to religion, the focus here is on comparison with models of religious reasonable accommodation.
1. Canada
In Canada, reasonable accommodation operates across anti-discrimination lawFootnote 115 (as opposed to human rights lawFootnote 116). Within anti-discrimination, Schneiderman notes that it is “an idea familiar … in the context of employment”.Footnote 117 Beaman similarly affirms this: “[r]easonable accommodation arose in … employment law as a way to articulate the necessary standard to be used by employers in dealing with requests for exemption from particular work requirements”.Footnote 118
Prima facie discrimination on a protected ground, including religion, must exist. There should be an identified religious belief, it must be sincere and it must be the basis for the claim.Footnote 119 There is no distinction between direct and indirect discrimination in Canada: a single unified test now exists. A common law duty of employer reasonable accommodation is built into this test. The employer must show: (i) it adopted the (discriminatory) standard for a purpose rationally connected to the performance of the job; (ii) it adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and, (iii) the standard is reasonably necessary to the accomplishment of that purpose. To show this, it must be demonstrated that it is impossible to accommodate the individual employees sharing the characteristic of the claimant without imposing undue hardship on the employer.Footnote 120 The approach in step (iii) reflects group or individual disadvantage.Footnote 121
Once discrimination is found, reasonable accommodation asks whether employee accommodation would impose “undue hardship” on the employer. This test emerged at common law in Ontario Human Rights Commission (O'Malley) v Simpson Sears (O'Malley).Footnote 122 Before undue hardship can be explored it is necessary to determine the factors an employer may cite in relation to which an accommodation might cause such hardship. In Central Alberta Dairy Pool v Alberta (Human Rights Commission) (Alberta)Footnote 123 the court set out “a non-exhaustive list of criteria to be considered”,Footnote 124 noting that it was “not … necessary to provide a comprehensive definition of what constitutes undue hardship”.Footnote 125 This listFootnote 126 focusses on reasons for resisting an accommodation request (either in full or part) and comprises: financial cost,Footnote 127 disruption of a collective agreement,Footnote 128 morale problems for other employees,Footnote 129 inter-changeability of workforce and facilities,Footnote 130 the size of the employerFootnote 131 and safety.Footnote 132 Of course, in some cases the facts will inevitably raise separate matters which fall outside the Alberta list.Footnote 133 This was confirmed in Chambly (Commission Scolaire Regionale) v Bergevin Footnote 134 where it was said that “[t]hese factors are not engraved in stone. They should be applied with common sense and flexibility in the context of the factual situation presented in each case”.Footnote 135 Consequently, the list in Alberta “must be adapted to the contexts in which accommodation requests are made”,Footnote 136 suggesting that whilst the reasonable accommodation case law is of indicative use, the context of a given discrimination dispute will be critical in determining the totality of factors that must be considered outside the Alberta criteria.
Once factors are identified, the meaning of undue hardship can be considered to ascertain whether an accommodation is possible.Footnote 137 In British Columbia (Public Service Employee Relations Comm) v BCGEU (the Meiorin case),Footnote 138 “the [c]ourt held that … an employer had to show that the accommodation of the individual in question was impossible without imposing undue hardship on the employer”.Footnote 139 The undue hardship test thus imposes a very high threshold (“impossibility”) on employers before it will found that they did not have to accommodate. Accordingly, “employers … must demonstrate that they have made every effort to accommodate an employee and that it would be impossible to modify or eliminate a particular requirement without incurring undue hardship”.Footnote 140
The high threshold for undue hardship requires that, aside from interrogating the employer's responses to an accommodation claim, sharp focus is also placed on how such responses relate to the employee's circumstances in the workplace – in particular, the nature of their job, the extent of responsibilities aligned to that job, the possible terms of any accommodation and how these might impact upon the employer's environment. To this extent, “the decision on what accommodation is reasonable and what hardship is undue … requires a balancing of interests and is based on a proportionality test”.Footnote 141 This balancing sets up an intriguing, if not precarious, equilibrium between the employee's arguments for accommodation and the employer's legitimate reasons in resisting accommodation. The significance of this for comparative purposes is that the high threshold of impossibility permits, if not requires, a highly attuned analysis, necessitating a detailed and forensic assessment of all the issues in attempting to achieve maximum possible accommodation. This necessitates a complete interrogation of all accommodation options comprising those which either fully or partially meet the employee's request(s).
The Canadian threshold for undue hardship necessitates a much more stringent standard of proportionality review than the approach under US reasonable accommodation. The US model similarly contains an undue hardship standard (together with a set of undue hardship factors which the employer may citeFootnote 142), although this standard has been set extremely low. The threshold of undue hardship above which employers are not obliged to provide accommodation has been positioned at the level of a de minimis – more than minimalFootnote 143 – obligation. This is a fairly nominal burden. Sonné has interpreted it as meaning that undue hardship will be established where accommodation, “would cost the employer something beyond inconvenience”.Footnote 144 Cromwell has gone further and suggested that de minimis may mean merely “trifling”,Footnote 145 indicating perhaps a lower threshold. Gregory argues that “the courts [do not need to] grant even the most minor accommodation to religious observers to enable them to follow their religious beliefs and practices”.Footnote 146 This perhaps reflects a lower standard of overall employee protection in the context of US labour law. Evidently, factors affecting both employer and employee may be of much less prominence in the US than in Canada, apart from in the most flagrant cases of reasonable accommodation failure.
It should be noted that the development of reasonable accommodation in Canada has taken place in a country well renowned for its commitment to multiculturalism, tolerance and diversity. Moreover, whilst Alberta has set out clear criteria for reasonable accommodation cases, the subsequent case law in interpreting those criteria has not always been thoroughly clear. Indeed, it has been said “that the outcome of cases depends to a large extent on the ideological approach of the court rather than the technical wording”;Footnote 147 further, “the highly contextual and casuistic nature of the inquiry pursued by courts adjudicating upon disputes concerning the application of the doctrine has inevitably left some questions unanswered”.Footnote 148
Notwithstanding this, Moon comments that the Canadian process of reasoning “certainly provides a useful methodology for testing the extent to which an occupational or service requirement is appropriate and necessary … it appears to produce demonstrably acceptable, workable progressive solutions”.Footnote 149 Indeed, “despite constitutional and legislative differences, it remains instructive to consider Canadian case law as it may provide guidance on how to tackle the difficult questions of principle that are common to both the UK and Canada. Such questions include … how far employers should be required to accommodate religious practice”.Footnote 150 With respect to the continuing development of reasonable accommodation in employment, it appears that “the doctrine is a never-ending work in progress”.Footnote 151
IV. Applying the Canadian Model to Ladele Footnote 152
Ladele worked for the London Borough of Islington and became a registrar of births, marriages and deaths in 2002. Subsequently, the Civil Partnership Act 2004 (CPA) came into force in December 2005: this afforded legal recognition to same-sex couples who became civil partners. The CPA not only provided for the designation of civil partnership registrars (s. 29(1)) but also required that each registration authority ensure that there was a sufficient number of civil partnership registrars for its area to carry out the various functions needed regarding the posts (s. 29(2)). No authorities were required to designate all existing registrars.
In summer 2004, Ladele explained to Islington that she would find it difficult to conduct civil partnerships due to her Christian belief that union should only be between a man and a woman. However, Islington decided that civil partnership duties would be shared out amongst existing registrars and so they elected to designate all registrars as civil partnership registrars. Not all authorities chose to designate all existing registrars. Two other registrars had also raised objections to carrying out civil partnership ceremony duties; one left Islington's service and the other was offered alternative employment on the same pay. This offer was accepted.
Islington's designation policy is relevant to how far Ladele could have avoided her accommodation request – especially given that she could not possibly have known when she commenced her job that she would be required to conduct civil partnership ceremonies in future years. Far from redefining an existing concept relating to her job (for instance, introducing same-sex marriage), the CPA introduced a new concept to her job: that of the “civil partnership”. This was legally distinct to the concept of marriage.Footnote 153 Arguably, involvement in civil partnership ceremonies could never, even on an inclusive understanding of “marriage”, have formed part of her original job description. If this is correct, it is likely the specific situation rule here did not apply to Ladele: she had not voluntarily agreed to a contract of employment that included civil partnership.Footnote 154
On raising objections, Ladele was offered a temporary accommodation by Islington. This would only have required her to conduct civil partnership ceremonies confined to the simple signing process, as opposed to the full ceremonies themselves. Ultimately, she refused the temporary compromise (because it would not have excused her from all civil partnership duties) and renewed her request for full accommodation. During this time she was able to make informal rota swaps with other colleagues to avoid officiating at such ceremonies. Islington ignored this practice. Subsequently, two of Ladele's colleagues who were gay complained to Islington claiming that they found her behaviour offensive and in breach of Islington's “Dignity for All” policy: this provided, inter alia, that there should be equality and freedom from discrimination on grounds of, amongst others, sexual orientation for all staff and that all staff were to be treated with dignity and respect. Its services were also to be provided to the public on such terms.
Ladele was the subject of a disciplinary process during summer 2007 during which it was conceded by Islington that there was no obligation to impose civil partnership duties on her and that they were also not part of her job description. This process did not involve any further investigations as to other potential accommodation offers which Islington could have made. Ladele later commenced legal proceedings against Islington. In both the EAT and CA it was found that, inter alia, she had not suffered either directFootnote 155 or indirectFootnote 156 discrimination. This went against the findings of the ET. In relation to indirect discrimination, both the EAT and CA found that disadvantage had been suffered although this was justified.Footnote 157 Ladele was refused leave to appeal to the Supreme Court and subsequently applied to the ECtHR.
A. Accommodation: Pre- or Post-Designation?
Accommodation under the Canadian and US models will be discussed from the post-designation perspective in Ladele. However, any need for accommodation could have been avoided by not designating her or, once designated, possibly “un-designating”Footnote 158 her.
Designation implemented a substantial change to Ladele's responsibilities which, as Islington conceded, was not part of her original job description.Footnote 159 Further, Islington was under no legal obligation to designate her as a civil partnership registrar: they had a choice.Footnote 160 Indeed, the Registrar General “had left it to each local superintendent registrar to make the appropriate arrangements”.Footnote 161 It is regrettable that it “was not fully explored … whether it [had been] proportionate to designate [Ladele] as a civil partnership registrar in the first place”.Footnote 162 Of course, such “un-designation” may have been objected to by Ladele's gay colleagues,Footnote 163 although this would need to be considered alongside the circumstances of her designation, the fact that designation was not compulsory and that un-designation may well have been a useful pragmatic solution. Such pragmatism was lauded by Elias J. in the EAT who commented that, “we would be sorry if pragmatic ways of seeking to accommodate beliefs were impermissible … it may be that choosing not to designate those with strong religious objections would be a lawful way of reconciling conflicts in this highly sensitive area”.Footnote 164
Whilst Islington's Dignity for All policy committed it to equality on grounds of sexual orientation,Footnote 165 non-designation/un-designation would not have been inconsistent with such a policy. Ladele would not be in a position where she would have to refuse to perform civil partnership ceremonies.Footnote 166 In any event, the fact that another employee had not been designated (and reassigned elsewhere) suggests that non-designation (and by extension, un-designation) would not have contravened the policy.
B. Post-Designation: Canada and Reasonable Accommodation
In applying the relevant Alberta criteria it will be seen that, whilst Islington may have pointed to problematic issues, each of these could be met with counter-arguments which signified that post-designation accommodation was not “impossible”.
1. ‘Problems of morale for other employees’
Two gay colleagues objected to Ladele's stance on civil partnershipsFootnote 167 and argued that any attempt to accommodate it would be demeaning and in breach of the Dignity for All policy. Central Okanagan School District Number 23 v Renaud Footnote 168 has indicated that the burden of proving any problem of workforce morale on the employer is high,Footnote 169 with the test being substantial interference with the rights of other employees.Footnote 170 It is debatable whether accommodation would have affected the two gay colleagues' rights whilst at work (let alone substantially interfered with them); further, it seems unlikely that two would be a sufficient enough number of disgruntled workers to establish undue hardship on Islington in meeting Ladele's full request (the rights and morale of the two gay employees had not been a barrier to partial accommodation offers). In situations such as this (and given that the issue was one of dignity rather than equality rights at work), Vickers has suggested that gay colleagues could pursue harassment claims, assuming that they could establish that accommodation, having regard to all the circumstances, could be reasonably considered as having the purpose or effect of violating dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.Footnote 171
2. ‘Inter-changeability of the workforce/size of the employer’
The CA noted that, “it is pretty clear that, by accommodating the wishes of the only registrar who wanted to avoid all civil partnership functions, Islington would not have significantly, if at all, impaired the quality of their registry services, whether in the field of civil partnerships or otherwise”.Footnote 172 Accommodation would have undoubtedly entailed some sort of equitable and efficient balancing of duties amongst particular employees who, once canvassed,Footnote 173 might have been willing to undertake Ladele's civil partnership ceremony duties. This would have depended on unknown factors such as demand for civil partnerships and how many other registrars were available to perform the related functions. Assuming other registrars were willing to swap (previous practice suggested they were), this would have reduced any undue hardship on Islington, particularly if civil partnerships were isolated in their occurrence. Both Ladele and Islington could also have had a more positive dialogue to determine precisely what accommodations would have been reasonable after her designation as a civil partnership registrar. The practical ease with which Islington might have accommodated Ladele is evident again from their accommodation of the other registrar who was moved to another role. However, this might not have provided a workable solution for Ladele given that she wanted to stay in her existing role rather than be transferred elsewhere.
3. Other undue hardship criteria: internal policies and external public relations
There were additional considerations which constituted legitimate matters on which both Islington and the courts rejected the idea of accommodation. In particular, Islington had implemented its own internal Dignity for All policy. This committed it not only to the promotion of equality between its employees but also towards members of the public who were users of its services.Footnote 174 Ladele's refusal to perform civil partnerships, “involved discriminating against gay people in the course of [her] job; she was being asked to perform that task because of Islington's Dignity for All policy, whose laudable aim was to avoid, or at least minimise, discrimination both among Islington's employees, and as between Islington (and its employees) and those in the community they served”.Footnote 175
Accommodation of Ladele would have undermined Islington's non-discriminatory objectives. As a result, it was not disproportionate to require all designated civil partnership registrars to perform full civil partnership dutiesFootnote 176 (presumably the partial offer of accommodation made did not violate the policy as that offer was temporary). To have decided otherwise would have risked Islington not only alienating the two gay employees (and any other affected colleagues), but also transmitting negative signals to the public about its attitude towards sexual orientation equality. However, Meiorin provides that employers have to accommodate unless it is impossible to do so. Accommodating Ladele, whilst inconsistent with the Dignity for All policy, would not have presented an intractable practical problem. The limited nature of the exception could have been emphasised given that it only affected one individual on a religious basis – religion or belief also constituting a protected characteristic in the equality balance.
Of course, the Meiorin conception of “impossible” may be defined more widely to mean impossible at the level of policy and public relations. Islington had “not disputed that an effective service could be provided even if the [appellant] did not carry out the civil partnership duties. [Rather] … part of the commitment to the promotion of equal opportunities and fighting discrimination [was] that employees should not be permitted to refuse to provide services to the community for discriminatory reasons”.Footnote 177 Overall, Islington preferred to subordinate religious equality to the sexual orientation equality imperative. Sandberg has attacked this subordination, claiming that in Ladele, “the obligations on the employer not to discriminate on grounds of sexual orientation trumped the rights of the employee not to be discriminated against on grounds of religion or belief. There seems to be no recognition that equality policy protects discrimination on grounds of religion as well as on grounds of sexual orientation”.Footnote 178 Nevertheless, the sexual orientation equality values were “entirely rationally connected”Footnote 179 with the legitimate aim of requiring all staff to perform their jobs in a non-discriminatory fashion.
4. Other undue hardship criteria: legal obligations on the employer
The Dignity for All policy's guarantee of sexual orientation equality (as towards users of its services) was also legally entrenched by the Equality Act (Sexual Orientation) Regulations 2007 (SO Regs 2007).Footnote 180 The CA confirmed that those regulations took “precedence over any right which a person would otherwise have by virtue of his or her religious belief or faith, to practice discrimination on the ground of sexual orientation”.Footnote 181 A majority of the ECtHR found that this balance was proportionate and within the UK's margin of appreciation.Footnote 182
However, proportionality can be addressed by contrasting Islington's mode of self-imposing the Dignity for All policy with its right to self-impose such a policy. Whilst self-imposition was Islington's right,Footnote 183 the policy might be open to challenge under the impossibility test where it disproportionately impacted specific employees, there being no built-in accommodation mechanisms. Inevitably, this is open to the objection that pragmatic exceptions would have undermined the aims of the policy. However, given that rejecting accommodation also did not guarantee dignity and respect for Ladele (the policy stated, inter alia, that “there should be equality and freedom from discrimination … for all staff”Footnote 184), it may be asked whether the balance struck between policy and pragmatism achieved maximum fairness. Certainly, practical arguments can be made in favour of redressing the balance.
A pragmatic approach to accommodation has been advocated in the Canadian context of legalised same-sex marriage – specifically, whether marriage commissioners who object for religious reasons to same-sex marriages should be accommodated from having to perform such marriage ceremonies. Lafferty has argued that an employee's “position and visibility in relation to the task of solemnization, including the process for same-sex couples to attain civil marriage (which may involve obtaining a license, having a ceremony, and documenting registration) are factors to consider”.Footnote 185 This seems particularly relevant in Ladele. Accommodation might have depended on the parameters of her responsibilities, such as how far she was involved in the initial administrative tasks of arranging civil partnerships and whether this involved her as a first point of contact for members of the public. If there was a risk she might have turned away members of the public then accommodation would have been impossible (so as to cause undue hardship on Islington), unless she had swapped with a colleague which, on the facts, seemed practicable. Critically, this type of swap would not have jeopardised provision of the service in question (as requested by the service user);Footnote 186 consequently, it would also have not contravened the Dignity for All policy or the SO Regs 2007.
The obvious need to avoid rejection of services (and so not compromise sexual orientation equality policy) has been affirmed in the Canadian same-sex marriage debate: “[s]ame-sex couples appearing at a government office requesting marriage services should expect that they will not experience rejection by being refused service by a state representative whose job it is to serve the public”.Footnote 187 Furthermore: “[u]ndue hardship would [only] exist if there were no public officials available to … provid[e] a marriage license, ceremony or registration to a same-sex couple other than officials who refused to do so on religious grounds or if there were so few public officials available that re-assignment would impose an unreasonable burden on those who had no religious objections”.Footnote 188 The acceptability of reasonable accommodation co-existing alongside another legitimate policy aim (so that the latter remains unaffected by the former) has been affirmed elsewhere in Canada: accommodation “does not require that a regulation or statute be abrogated, rather that its discriminatory effects be mitigated”.Footnote 189 Assuming Ladele could have been accommodated “behind the scenes”, it remains unclear how prospective same-sex civil partners would begin to frame a sexual orientation discrimination claim where their attempts to obtain civil partnership services had not been rejected (assuming there were enough civil partnership registrars available to offer the service). Indeed, in the Canadian debate it has been said that “the mere fact that an official officiates only at opposite-sex marriages cannot be qualified as ‘individual discrimination’; is at most a kind of abstract, general discrimination, where there is arguably no concrete harm done”.Footnote 190
These pragmatic arguments were recently addressed in Re: Marriage Commissioners Appointed Under the Marriage Act (Re: Marriage Commissioners).Footnote 191 Here, the Saskatchewan Court of Appeal considered a reference question from the Canadian Government as to whether proposed legislation allowing public officials to refuse to conduct same-sex marriages would infringe access to public services without discrimination. It was held that there should be no such religious accommodation,Footnote 192 the court citing unlawful discrimination on grounds of sexual orientation.Footnote 193 Any refusal by a marriage commissioner to a gay couple of the services they required would be “very significant and genuinely offensive”.Footnote 194
However, it was declared that in different circumstances practicality could supervene over policy. For instance, where marriage commissioners were not the first port of call for couples seeking to marry,Footnote 195 any accommodation could be arranged with commissioners discreetly and behind the scenes.Footnote 196 Consequently, a commissioner's refusal “to be involved in a same-sex ceremony would not be apparent to the couple proposing to wed and there would be no risk of the couple approaching a commissioner and being refused services because of their sexual orientation”.Footnote 197 It is not known how involved Ladele was at the initial civil partnership enquiry stage. In any event, the swapping of duties with colleagues could apply discreetly even where Ladele's employers asked her to be the first contact point for prospective civil partners, assuming this could be done without communicating Ladele's refusal to the service users. This would link with the proportionality reasoning in Re: Marriage Commissioners, provided that the service remained available. Recourse to pragmatism in such circumstances would be consistent with the view of the minority in Eweida and Others Footnote 198 who argued that, “if one were to undertake the proportionality exercise … with reference to whatever legitimate aim [Islington] had in view, it follows that the means used were totally disproportionate”.Footnote 199
Ultimately, the UK courts argued that it did not matter that “the civil partnership requirements could have been provided perfectly satisfactorily without obliging the [appellant] to perform these duties”.Footnote 200 The fact that Islington would have been tolerating discriminatory conduct by an employee would be enough to prevent accommodation.Footnote 201 This was reiterated elsewhere.Footnote 202 Overall, such a position seems inflexible, particularly where accommodation would not have abrogated legal provisions proscribing sexual orientation discrimination (or the internal Dignity for All policy). It is submitted that where a pragmatic solution can be found this will be permitted under the Canadian model if it is able to coexist with a legitimate aim. The suggested accommodation outcome in Ladele pursues maximum accommodation but remains cognisant of the competing legitimate equality imperative and the need not to compromise service users' dignity. Of course, the issue of whether such service users may have sufficient evidential grounds to suspect that behind-the-scenes accommodation has taken place may become relevant, although procedures should be followed to minimise such risks. In any case, it may be argued that such knowledge, suspicion or offence would be too remote (assuming the service was offered with no problems) so as to affect the proportionality balance. Ladele's accommodation should also be viewed as sidestepping the “core job” rule which requires that excusal from tasks on conscientious grounds should not be permitted “[w]here carrying out the task in question is a significant aspect of the job”.Footnote 203 This would not amount to impossibility under Canadian reasonable accommodation.
V. REASONABLE ACCOMMODATION OF RELIGIOUS EMPLOYEES IN THE UK: CHOICES AND CHALLENGES
A. Reasonable Accommodation and Proportionality
The Canadian reasonable accommodation test is demonstrably more capable of discovering pragmatic leeway for religious employees in the workplace than the current approach in UK indirect discrimination. The Canadian model's schematic outline of prescribed factors in Alberta demands a more complete consideration of matters (along with any other relevant issues) which may reveal how a full or partial accommodation could actually be provided without troubling the employer's legitimate aim. This exploration is further facilitated by an undue hardship proportionality standard (“impossibility”, as stipulated in Meiorin) which obliges extensive examination of the facts to verify maximum possible accommodation. Whilst this approach benefits the religious claimant it is not at the expense of undermining or diluting the defendant's legitimate aim: it is clear that this must remain unaffected. The elevated standard is not to give undue recognition to religious interests; rather, it is to force courts to engage with all the relevant issues in a case so as to resolve whether, and if so how far, an accommodation should have been made. Some argue that proportionality analyses weaken guarantees of religious liberty. For commentators such as Rivers, it is preferable to enhance certainty of religious liberty through group immunity.Footnote 204 The existence of statutory religious exceptionsFootnote 205 reflects the possibility of such immunity. However, arguably the appeal of proportionality is precisely its lack of rigid certainty. Vickers argues that, ironically, the call for more immunity “instead of relying on [a] fact-sensitive proportionality test, would result in less protection for religion and belief”.Footnote 206 This is because statutory immunity would be necessarily limited. Rather, emphasis on a detailed proportionality test should provide “clear procedural safeguards to ensure that restrictions on religions [liberty] … are only imposed after proper consideration of the varied interests at stake”.Footnote 207
Domestic application of Canadian reasonable accommodation in employment would address many commentators' concerns with judicial reasoning at the justification stage of UK indirect discrimination claims. Sandberg accepts this point when he states that if reasonable accommodation were to put an extra gloss on the legal provisions which was “necessary to ensure that the focus is upon justification … then the concept [of reasonable accommodation] would be helpful'”Footnote 208 Moreover, it would “allow for nuanced fact-specific conclusions which do not constrain subsequent cases”.Footnote 209 Further, it would address Stychin's contention that “balancing and accommodation demands some form of contextual analysis, which engages with the competing interests on the particular facts”.Footnote 210 The exercise conducted with Ladele directly targets a particular lament of Stychin's, namely that in debates on reasonable accommodation of religion, “there is rarely any consideration of how this balancing would actually be undertaken in hard cases”.Footnote 211
Whilst reasonable accommodation in employment might signify “the triumph of pragmatism over principle”Footnote 212 it provides an alternative and context-dependent way in which to deal with competing claims. Accordingly, McGoldrick concludes that, “[s]ensitive and intelligent employment practices may resolve many practical problems but some may require weighing of claims that have at least an appearance of equal weight … [C]onflicts … can sometimes be resolved by common sense, good practice and a sense of proportionality”.Footnote 213 The promotion of pragmatism was certainly a possible option in Ladele where religious conscience clashed with public policy. On this basis, Trigg lauds the fact that reasonable accommodation allows individuals to resist pressure in matters of conscience:
[d]emocratic agreement of public policy need not imply the enforcement of public norms, and a particular view of morality, on individuals. Doing so may be neater from a bureaucratic point of view, but it rides roughshod over the respect for individuals that should lie at the root of any democracy. It involves coercion, and introduces a new form of discrimination in policies designed to remove other forms.Footnote 214
Nevertheless, difficulties remain. Accommodation of Ladele may indicate that other types of beliefs motivated by religion (for example, racist beliefsFootnote 215) would also have be accommodated at work, lest policy prohibiting other forms of discrimination be elevated above policy prohibiting sexual orientation discrimination. This hypothetical point was not directly addressed in Re: Marriage Commissioners, perhaps because religious thinking (particularly in mainstream faiths) is less evolved in matters of sexual orientation than those of race. Indeed, it was noted in Re: Marriage Commissioners that same-sex unions tend to “occup[y] centre stage”Footnote 216 in religious conscience debates. As a result, clashes between religion and race seem rarer. However, under the Canadian reasonable accommodation model it is theoretically possible that religious conscience on matters of race could still be accommodated in the workplace, provided any competing legitimate aim relating to race equality was not compromised. It is accepted that this is undoubtedly controversial (as indeed it already is in relation to sexual orientation), yet it appears an inescapable option under the Canadian impossibility test. A possible solution might be that, should clashes between protected characteristics arise in employment, accommodation be influenced by exceptions policy for religious groups which only tolerates discrimination on grounds of sex, religion or belief and sexual orientation.Footnote 217 Such policy may be transferred to cases of religious conscience in the workplace to reveal the limits on how far individuals can “stray from the norms of the society of which they members and still demand ‘reasonable accommodation’”.Footnote 218 Of course, behind the scenes accommodation of racist religious beliefs would still need to be acceptable to other employees whose cooperation in accommodation would be essential. Undeniably, cases of religious conscience in relation to any protected characteristic pose insuperable proportionality challenges: by their very nature they are impossible to resolve to everyone's satisfaction – reasonable accommodation is merely one attempt at resolution.
B. Reasonable Accommodation and Individuals
Whatever the type of clash between religious employee and employer, a focus on individualised religious liberty is ultimately vulnerable to the charge that, far from augmenting religious interests, it actually diminishes them. This is because a concentration on individuals is less likely to foster respect for religion at a more global and collective level so as to percolate down to the individual. Rivers thus advocates a more collective dimension to religious rights as rooted in constitutional principle.Footnote 219 He believes this is more apt to achieve religious liberty in the long term because “it requires institutional anchoring in the recognition of a quintessentially religious domain … which is important enough to be immune from state interference. It requires religions and the state to be thought of, in some sense, as coequal in law”.Footnote 220 This better entrenches religion's position in UK society; it also permits individual rights to flow from it. As with any individualised legal construct, reasonable accommodation is part of the problem and not the solution to ensuring stronger religious liberty.
However, reasonable accommodation and broader respect for religion are not mutually exclusive: they can coexist. In any case, Vickers contests the idea that group rights should be the default basis for religious interests, arguing that the more modern approach is to conceive of them at the individual level. She has reasoned that “collective rights are an important aspect of individual rights, but they derive their value from individual interests … collective rights gain their validity and value from the individuals who make up the collective”.Footnote 221 Even if this is not accepted, before modes of religious liberty protection are rejected, there should be further debate “over whether religious interests should be understood as individual or collective rights”.Footnote 222 Certainly, reasonable accommodation has a proven ability to raise the profile of religion across various participatory elements of society, such as the workplace.
The inherently individualistic spirit of reasonable accommodation also coheres with the promotion of human dignity as an accepted normative basis for legal protection of religion or belief. This is embodied in the notion that “[i]f we accept that all humans are equal, we need to give equal concern and respect to the different world views that they develop”.Footnote 223 It also chimes emphatically with the Equality and Human Rights Commission's (EHRC) submission that “recognition of the principles of dignity and autonomy requires an approach to the definition of manifestation that focusses primarily on the conviction of the adherent”.Footnote 224 Additionally, within the human dignity framework, equality as a sub-strand of that framework clearly highlights the role reasonable accommodation can play in anti-discrimination law. It provides a form of individual substantive equality focussing on individual corrective justice. This, along with the dignity imperative, supports a duty of accommodation for religious employees at work (whatever the type of clash) up to the point of undue hardship. Of course, reasonable accommodation's individualised focus is at odds with indirect discrimination's focus on group disadvantage and distributive justice,Footnote 225 leading some to attack reasonable accommodation's assimilationist impact. Schneiderman has claimed reasonable accommodation is a “formalistic standard of review, assimilationist in its objectives, and largely oblivious to the presence of domination”.Footnote 226 The doctrine “leaves unchallenged and unaffected the underlying discriminatory policy which resulted in the initial exclusion”.Footnote 227 Indeed, Beaman rebukes reasonable accommodation for tolerating structural inequalityFootnote 228 and condemns those who use the language of accommodation for invoking a colonial attitude that “‘we’ will tolerate ‘you’”.Footnote 229 Certainly, assimilation supports Rivers' argument that the individual arena is ill-suited to securing religious interests in the long term: the focus should be on broader protection and acknowledgement.
These arguments reveal weaknesses in the protection claims of reasonable accommodation. However, reasonable accommodation is not a panacea for addressing protection deficits experienced by religion or belief in the work environment. This is not to deter ambition of religious liberty; rather it is to acknowledge that reasonable accommodation is plainly ill-equipped to challenge deep-rooted societal problems concerning religion.Footnote 230 Indeed, a positive advantage of reasonable accommodation is its concentration on individual matters, associated respect for dignity and ability to secure religious liberty in the workplace through a more forensic proportionality focus. That focus allows reasonable accommodation to search for maximum equitable co-existence between employer and employee, particularly where there is a clash of protected characteristics. This approach is clearly instructive.
Of course, the individualised approach to reasonable accommodation, particularly when using the employee-friendly Canadian doctrine, is likely to place greater burdens on employers. This is an inevitable result of investigating ways in which maximum accommodation could be achieved for religious employees in employment. It is possible that employers will be faced with increased requests for religious accommodation if only individual (as opposed to group) disadvantage is required. Nonetheless, as Vickers highlights,Footnote 231 personal beliefs and associated manifestations are protected elsewhere (such as Article 9(1)) signifying that individual disadvantage is not ignored by the law. Of course, the acceptance of individual disadvantage in Canadian reasonable accommodation does not appear to have posed severe problems for employers in Canada. In the majority of UK cases it is submitted that an individual faith conviction will probably be discernible on the facts so as to surmount the existing domestic anti-discrimination test for religious belief.Footnote 232 The same domestic test in relation to other beliefs (including philosophical beliefs) would be applied to reasonable accommodation requests on the basis of individual non-theistic convictions.
C. Canadian Reasonable Accommodation and UK Jurisprudence
The exercise in Part IV shows that Canadian reasonable accommodation may have enabled accommodation to have been reached in Ladele. Whilst, admittedly, support for pragmatism will always be provocative where two protected characteristics clash, reasonable accommodation in Ladele demonstrates that – sometimes – it is not necessary for religion to be placed below sexual orientation in any “hierarchy”. The two can co-exist. This expects that “respect for diversity inevitably involves a process of accommodation, as opposed to one side dominating the other”.Footnote 233 Further, although the employer in Ladele was a public entity, application of reasonable accommodation in the public employment sphere could be permitted. Vickers makes the argument that is it “not clear-cut” why public-sector organisations should automatically find it less difficult to justify non-accommodation of religion. Whilst they may exist to perform a more “secular” role than private institutions it could equally be argued that the public sector should “reflect its community and so accommodate both sexual orientation and religion and belief”.Footnote 234 Rivers has gone further and asserted that arguments against accommodation of religion by public bodies, on the basis that such bodies are publicly funded, are misconceived: “the notion that ‘ethics flow with money’ [is] ‘irrational, wrong and illiberal’”.Footnote 235
Accommodation is less likely in McFarlane, a case concerning a Christian relationship counsellor who refused to counsel same-sex couples on sexual matters. Whilst there were legal and internal policy reasons counting against accommodation in McFarlane (similar to those in Ladele), there was also evidence that employee reallocation would not be practicableFootnote 236 (unlike in Ladele). This would have made behind the scenes accommodation particularly difficult, irrespective of whether McFarlane was the first point of contact for service users or not. Without the option to reallocate McFarlane elsewhere, there would have been a real danger of compromising provision of the counselling service to same-sex couples which would have abrogated legal and internal policy prohibiting sexual orientation discrimination in the provision of services. This key difference between two ostensibly similar cases highlights that in reasonable accommodation analyses a close assessment of the facts is vital. A single variable can alter the outcome. Interestingly, unlike in Ladele (where the accommodation request stemmed from unanticipated later changes to the terms of Ladele's employment), McFarlane must have been aware of the specific parameters of his role when he commenced his post.Footnote 237 Accordingly, he was aware of the circumstances which motivated his request for accommodation from the very start of his job. Notwithstanding this, it is possible that under Canadian reasonable accommodation an employee's knowledge of their role from the outset would not necessarily be enough to prevent accommodation regarding aspects of that role, assuming service provision remained in tact along with any corresponding and legitimate internal or external policies.Footnote 238
In Eweida, it is submitted that accommodation would be permitted under the Canadian scheme: British Airways' predominant reason for denying accommodation was their uniform policy that sought to create a company brandFootnote 239 and, accordingly, prohibit employees from wearing any item(s) above their uniforms. British Airways' volte face in later allowing all faith symbols to be worn above uniforms demonstrates that its legitimate business needs could co-exist harmoniously with accommodation. Accordingly, such accommodation was not impossible at the level of internal policy. For this reason, accommodation was also found to be proportionate by the ECtHR under Article 9(2) in Eweida and Others.Footnote 240 It is unlikely accommodation would be available in Chaplin where a Christian nurse was refused permission to wear a cross over her work uniform. Chaplin's employers did suggest alternative modes of accommodationFootnote 241 but these were rejected by Chaplin in favour of less realistic alternatives.Footnote 242 Whilst the refusal followed a change in uniform and jewellery policy (under previous policies Chaplin has been able to wear her cross visibly on top of her uniformFootnote 243), her bosses were ultimately able to point to numerous health and safety concernsFootnote 244 with her preferred accommodation solutions (not to mention the need to have a corporate and professional imageFootnote 245), the totality of which could have attained the impossibility threshold. In Eweida and Others, the ECtHR was also persuaded that the health and safety imperative precluded accommodation in the Article 9(2) proportionality balance.Footnote 246
VI. Conclusion
Reasonable accommodation's approaches to individual disadvantage and proportionality are distinctive in addressing clashes between religious employees and their employers. The Canadian model is highly instructive in its approach to proportionality via the impossibility test. Given that assessments of both group disadvantage and proportionality have presented problems in UK indirect discrimination cases, any UK adoption of the Canadian reasonable accommodation test should be part of a free-standing claim route. Discrimination would exist where an employer failed to comply with a duty to reasonably accommodate an employee with a religion or belief. To this extent, some commentators have argued for a sui generis classification of reasonable accommodation. Rather than forming part of indirect discrimination, it should form a wholly independent claim. Waddington and Hendriks support this: “the right to an effective accommodation does not entirely fit within the prevailing distinction between direct and indirect discrimination”.Footnote 247 This is supported by Schiek et al.Footnote 248 Indeed, given the alternative burdens of proof inherent in both claim routes it appears wiser to create a separate duty for reasonable accommodation so as to keep the duty distinct. In reasonable accommodation, the burden is on the defendant to establish that an accommodation would create undue hardship; in indirect discrimination the initial burden is on the claimant. Vickers alludes to this distinction as a reason for maintaining reasonable accommodation as a distinct duty;Footnote 249 similarly, so do Waddington and Hendriks.Footnote 250 Debate about UK adoption of a reasonable accommodation model for religion or belief in employment does not presuppose that employer reasonable accommodation duties should also follow for the EqA 2010's other protected characteristics. Any arguments about extending reasonable accommodation beyond the religion or belief perspective form a separate enquiry.
As accommodation in Ladele would have had to take place alongside full service provision, this might assuage concerns from trade unions and Lesbian, Gay, Bisexual and Transgender stakeholders that reasonable accommodation could “act as a vehicle for religious people to discriminate and thereby threaten the rights of LGB and T people”.Footnote 251 Other stakeholders have been particularly keen on the merits of reasonable accommodation. For example, a recent Parliamentary report entitled “Clearing the Ground”,Footnote 252 prepared by the “Christians in Parliament”, argued inter alia for research to be undertaken regarding reasonable accommodation for religion to “ensure that the rights of Christians and those of other faiths to manifest their belief were not unduly restricted”.Footnote 253 However, it also acknowledged that care would need to be taken in not excessively regulating “reasonableness”.Footnote 254 An evolving knowledge exchange process has encouraged stakeholders elsewhere to welcome the advantages of reasonable accommodation, particularly in light of the more prescriptive approach it affords regarding proportionality. Such stakeholders have noted reasonable accommodation's ability to lead to more religiously plural workplace environments.Footnote 255 Clearly, reasonable accommodation is capable of being a model of good employer practice.Footnote 256
There also exists institutional enthusiasm for a model of reasonable accommodation for religion. In the UK, the EHRC (in response to consultation feedbackFootnote 257) has reiterated its commitment to potentially developing a concept of reasonable accommodation in cases concerning religion in order to “help inform [its] early thinking in this area”.Footnote 258 It also announced that it “intends to continue the dialogue with a range of interested stakeholders to explore this idea further”.Footnote 259 Furthermore, the Council of Europe's Commissioner for Human Rights has commented that, “[a]s part of the further development of this new generation of [national equality] legislation, consideration needs to be given to extending the provisions on reasonable accommodation to the other grounds covered by the legislation … Reasonable accommodation could be further developed”.Footnote 260 The Commissioner also confirms that “[a]ll organisations should be required to make reasonable accommodation for the practical implications of diversity across all grounds covered by the [national] legislation”.Footnote 261
Recent UK jurisprudence concerning religious discrimination in the workplace has shown that the courts often marginalise religion in the face of other legitimate aims. Rivers argues that this dilution amounts to a “recreationalisation” of religion: “[t]he effect is to turn religion into another hobby … the law need make no space for the idea that there might actually be a God, who might really be calling people into relationship with himself, who might make real demands on his worshippers. Religion thus acquires all the moral weight of stamp-collecting or train-spotting”.Footnote 262 Adoption of a Canadian reasonable accommodation duty for employers in UK anti-discrimination law would help facilitate better judicial engagement with individual interests as balanced with competing factors. This is likely to result in amelioration of individual disadvantage. Reasonable accommodation emphatically presents an alternative perspective in the legal acknowledgement of employee religious interests so that individuals of faith feel less alienated by the law.
