On Wednesday I wrote about the Nadia Eweida case at Comment is Free.
My line’s a compromise one, I think: my starting point is a secularist one, but I’m not insisting on the workspace being absolutely non-religious. I doubt that’s achievable under the 2003 regulations. Some (misguidedly I think) are tempted to see a secularist approach as itself a sort of fundamentalism, and I think those who believe real freedom depends on maintaining a predominantly secular public space would be wise not to fall into that trap. So I’m prepared to give a little to meet genuine religious concerns, and I think a reasonably principled compromise may be possible, along the lines of the Aberdare school case, in situations where
- someone doesn’t just believe they have to wear an item for religious reasons, but can show there actually is such a requirement;
- the item either cannot be covered up or if it can, is covered up so far as possible, and
- displaying the item is not in any conflict with dignity, equality and human rights.
This, I can accept. It’d mean you could wear a kara or a turban, for instance, and maybe the hijab (is it really required? I’m not sure, though as I understand it, that’s a more mainstream Muslim view than the belief that a jilbab or full veil is needed). The claim that you should be able to wear a full veil would not pass my test – it’d fall down probably on limb 1 of the test, and certainly on limb 3.
What I obviously don’t want is significant encroachment of religious rights over the rest of us, which is what I think Liberty’s approach entails. I think their support for Nadia Eweida puts religious privilege over equality – and indeed freedom from her religion for the rest of us.
I think that the problem is determining whether something falls into limb 1 or not. Some Muslim scholars (a minority) would say that a full veil is obligatory while some Sikhs do not wear a kara. There needs to be a balancing act which takes into account the number of people affected as well as the degree of compulsion felt by the person in question.
To some extent, all of these issues are in play in Eweida. The old test of indirect discrimination only provided a remedy if a policy made it more difficult for a particular group to comply with. This would not have assisted her as she clearly has no problem complying with a policy not to wear a cross. However, the current test talks about putting people at a disadvantage, which is more useful for her. On the other hand, the reason why she lost below is that she could not show that any other Christians working for British Airways were disadvantaged. There had been no disadvantage to a group, only to an individual, which is not sufficient to establish indirect discrimination.
.-= James Medhurst´s last blog ..Continuing acts =-.
Yes, James. I envisage my test (which I think goes further than Silber J’s in the Aberdare case, but is based on it) as not recognising an individual feeling of obligation to wear, or any minority “recognised opinion” that something is a requirement, but only recognising clear, widely accepted religious requirements. I know there are many Sikhs who don’t comply, but that doesn’t change the fact that (as I understand it) it is a clear, universally accepted religious obligation to wear the turban, say. That’s the kind of thing my test would allow in. I’m not sure what the effect would be on the hijab. One of the difficulties is the lack of any central authority in Islamic matters. But if it’s widely accepted by a very clear majority of Muslims worldwide that wearing a headscarf is obligatory (whether or not a majority do it), then it’d pass my test.
I’m happy with the move to disadvantage rather than relying on the idea you “couldn’t” comply: I think discrimination law should take account of barriers which are unfair even though you can comply, as well as ones you actually can’t comply with. But of course only a difference of treatment on a prohibited ground, or in relation to a protected characteristic, should count. As you say, that’s where Eweida fell down, as she can’t show the rules disadvantaged Christians – the problem wasn’t related to religion.
That’s why i think my proposed approach works – group disadvantage is already built into the law, so a test based on the objective requirments of a group should work better than a test based on the applicant’s own beliefs about what’s required.