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Promoting equality or fostering resentment? The public sector equality duty and religion and belief

Published online by Cambridge University Press:  02 January 2018

Lucy Vickers
Lucy Vickers*
Affiliation:
Oxford Brookes University
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Abstract

The paper assesses the extension of the public sector equality duty to cover religion and belief. The duty on public authorities is to have due regard to the need to eliminate discrimination, harassment and victimisation on grounds of religion and belief; and advance equality of opportunity and foster good relations between people of different religions (and none). The paper considers a number of concerns about how this duty may be applied in the context of religion and belief, and, in particular, that it could give rise to resentment between communities rather than fostering good relations. It is suggested that the potential difficulties of such a duty, when applied to religion and belief, may be lessened if it is based overtly on a concept of equality which aims to address disadvantage, rather than on a concept based on dignity or recognition.

Type
Research Article
Information
Legal Studies , Volume 31 , Issue 1 , March 2011 , pp. 135 - 158
Copyright
Copyright © Society of Legal Scholars 2011

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References

1. See, eg, Lester, A and Uccellari, P ‘Extending the equality duty to religion, conscience and belief: proceed with caution’ 2008 EHRLR 567 Google Scholar.

2. Public sector duties had already been introduced in Northern Ireland and Wales, and the Greater London Authority Act 1999 also placed equality duties on the Greater London Authority.

3. The Stephen Lawrence Inquiry, Report of an Inquiry by Sir William Macpherson Cm 4262-I, 1999.

4. ibid, ch 6:34.

5. Northern Ireland Act 1998, s 75 placed a range of equality duties on public bodies. The Government of Wales Act 1998, and the Greater London Authority Act 1999 also placed equality duties on the Welsh Assembly and the Greater London Authority, respectively.

6. P Chaney and T Rees ‘The Northern Ireland section 75 equality duty: an international perspective’ in E McLaughlin and N Faris The Section 75 Equality Duty – An Operational Review Annex A, available at http://www.nio.gov.uk/sect_75_equality_duty_an_operational_review_volume_2.pdf.

7. Disability Discrimination Act 2005.

8. Equality Act 2006, amending the Sex Discrimination Act 1975.

9. Of course, this can be viewed as part of the ‘tick box’ approach to equality identified below.

10. See, eg, R (Janet Harris) v Haringey London Borough Council and Others [2010] EWCA Civ 70.

11. R ((1) Kaur (2) Shah) v Ealing London Borough Council and Equality & Human Rights Commission (Intervenor) [2008] EWHC 2062 (Admin).

12. See the website available at http://www.fawcettsociety.org.uk/index.asp?PageID=1177.

13. See, eg, Fairness and Freedom: The Final Report of the Equalities Review (February 2007), available at http://archive.cabinetoffice.gov.uk/equalitiesreview/upload/assets/www.theequalitiesreview.org.uk/equality_review.pdf. See also O'Cinneide, C ‘Fumbling towards coherence: the slow evolution of equality and anti-discrimination law in Britain’ 2006 NILQ 57 Google Scholar.

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15. See Lester and Uccellari, above n 1. See also Sedley LJ in Eweida v British Airways [2010] EWCA Civ 80, [2010] ICR 890 at [40].

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17. See, eg, T Macklem, ‘Faith as a secular value’ (2000) 45 McGill LJ 1. See also J Rawls A Theory of Justice (Oxford: Oxford University Press, revised edn, 1999).

18. See R (E) v The Governing Body of JFS and the Admissions Appeal Panel of JFS and Others [2009] UKSC 15, [2010] 2 WLR 153.

19. G Pitt ‘Religion or belief: aiming at the right target’ in H Meenan (ed) Equality Law in an Enlarged EU (Cambridge: Cambridge University Press, 2007) p 226.

20. Evans, C ‘Introduction’ in Cane, P, Evans, C and Robinson, Z (eds) Law and Religion in Theoretical and Historical Context (Cambridge: Cambridge University Press, 2008)Google Scholar. See also C McCrudden Religion, Human Rights, Equality, and the Public Sphere paper to Ecclessastical Law Society (13 March 2010).

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22. Of course, these religious groups may argue that they support equality, but that their understanding of what equality requires differs from the way in which that term is generally understood.

23. For details of Glen Hoddle's dismissal for comments on disability and bad karma, see The Guardian 30 January 1999 and 3 February 1999, and The Observer 31 January 1999.

24. For examples of other practices inimical to women's rights, see Raday, F ‘Culture, religion and gender’ (2002) 4 International Journal of Constitutional Law 664 Google Scholar.

25. UKEAT/0219/09, [2010] ICR 360.

26. Although it has since been confirmed that the Regulations do not protect beliefs based on Marxism/Trotskyism and the Socialist Party: Kelly and Others v Unison ET/2203854-57/08 (unreported) 28 January 2010.

27. Above n 25, at [28].

28. Of course, whether a view is respectable or not is highly subjective: conservative Christians and equality practitioners will have very different perspectives on what is a ‘respectable’ view on gender and sexual orientation equality.

29. Ladele v Islington Borough Council UKEAT/0453/08, [2009] ICR 387 and [2009] EWCA Civ 1357, [2010] 1 WLR 955 and McFarlane v Relate Avon Ltd [2010] EWCA Civ 880, [2010] IRLR 87.

30. Malik, above n 21.

31. ibid, p 7.

32. Equality Act 2010, s 10.

33. Compare the position in the USA where protection is limited to religion, leading to a definition of religion that is wide enough to encompass many of the beliefs that would be protected under the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. See L Vickers Religious Freedom, Religious Discrimination and the Workplace (Oxford: Hart Publishing, 2008) ch 6.

34. Campbell and Cosans v UK (1982) 4 EHRR 293 at para 33.

35. Vickers, L ‘Religious discrimination in the workplace: an emerging hierarchy?’ (2010) 12 Ecc LJ 280 Google Scholar.

36. See ibid.

37. The other protected characteristic to which this applies is ethnic origin (see Mandla v Lee [1983] IRLR 209), although in many cases those groups which have attempted (unsuccessfully) to be protected using this ground of ethnic origin (eg Rastafarians, Muslims) are likely in future to use the ground of religion and belief.

38. Campbell and Cosans, above n 34.

39. McColgan, above n 21.

40. Marginalising Christians: Instances of Christians being Sidelined in Modern Britain (Newcastle upon Tyne: Christian Institute, 2009).

41. McFarlane, above n 29.

42. See the website available at http://www.secularism.org.uk/equality-and-human-rights.html.

43. Lester and Uccellari, above n 1, at 570.

44. The name used by Birmingham City Council for its winter celebrations in 1997 and 1998. See the website available at http://news.bbc.co.uk/1/hi/uk/210672.stm.

45. Especially in the light of the suggestion by the Christian Institute that attempts to make institutional greetings cards sent out at Christmas more religiously neutral (by use of terms such as ‘happy holidays’) may cause offence to Christians: Jones, M Religious Liberty in the Workplace. A Guide for Christian Employees (Newcastle Upon Tyne: Christian Institute, 2008)Google Scholar.

46. See, eg, Women and the Church, available at http://womenandthechurch.org/.

47. See the website available at http://www.womenpriests.org/.

48. However this does not extend to protection for indirect discrimination (see Eweida, above n 15, and the comment on the EAT decision L Vickers (2009) 11 Ecc LJ 197.

49. See Cumper, P ‘The public manifestation of religion or belief: challenges for a multi-faith society in the twenty-first century’ in O'Dair, A and Lewis, R (eds) Current Legal Issues vol 4 (Oxford: Oxford University Press, 2000) p 325 Google Scholar.

50. It is notable that some of the judges in R (Williamson) v Secretary of State for Education and Employment [2002] EWCA Civ 1926, [2003] QB 1300 (Buxton LJ in the CA and Elias J in the first instance hearing) were prepared to determine what was and what was not required of Christianity, rather than considering the religious views of the particular claimants before them. It is unlikely that an English court or tribunal would assume expert knowledge of any other religion. See Vickers, above n 33, ch 5.

51. Pitt, above n 19.

52. Eg, myths abound about local authorities attempts to ban Christmas festivities in the name of political correctness. For some examples, see Burkeman, O ‘Are they really trying to ban Christmas?’ The Guardian 12 December 2005)Google Scholar.

53. Lester and Uccellari, above n 1.

54. McCrudden, C ‘Thinking about the discrimination directives’ (2005) 1 European Anti-Discrimination Law Review 17 Google Scholar.

55. See, eg, O'Cinneide, above n 13; Barnard, C and Hepple, B ‘Substantive equality’ (2000) 59 CLJ 562 CrossRefGoogle Scholar, Fredman, S Discrimination Law (Oxford: Oxford University Press, 2002)Google Scholar , Hepple, B ‘The aims of equality law’ in) O'Cinneide, C and Holder, J (eds) Current Legal Problems (Oxford: Oxford University Press, 2008)Google Scholar. See also Fraser, N ‘Rethinking recognition’ (2000) 3 New Left Review 107 Google Scholar and Taylor, C Multiculturalism and ‘The Politics of Recognition’ (Princeton: Princeton University Press, 1992)Google Scholar.

56. See Westen, P ‘the empty idea of equality’ (1982) 95 Harv LR 537 CrossRefGoogle Scholar.

57. See, eg, Barnard and Hepple, above n 55, and Fredman, above n 55. A common example of the problem is the difficulty the courts experienced in deciding who was ‘like’ a pregnant woman.

58. See Barnard and Hepple, ibid.

59. Collins, H ‘Discrimination, equality and social inclusion’ (2003) 66 MLR 16 CrossRefGoogle Scholar, Fredman, S The Future of Equality In Britain Working Paper Series No 5 (London: Equal Opportunities Commission, 2002) p 11 Google Scholar, Fraser, above n 55.

60. Kant, E [HJ Paton (transl)] The Moral Law: Kant's Groundwork of the Metaphysics of Morals (London: Hutchinson, 1963)Google Scholar.

61. Réaume, D ‘Discrimination and dignity’ (2003) 63 Louisiana LR 645 Google Scholar at 675.

62. Article 1. Dignity also features in the preamble to the United Nations Charter and the preambles of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

63. See Dworkin, R Taking Rights Seriously (London: Duckworth Press, 1977)Google ScholarPubMed and Dworkin, R A Matter of Principle (Cambridge MA: Harvard University Press, 1985)Google Scholar .

64. See Moon, G and Allen, R ‘Dignity discourse in discrimination law: a better route to equality’ 2006 EHRLR 610 Google Scholar.

65. See Fraser, above n 55 and Taylor, above n 55.

66. Rawls, too, identifies self respect as a ‘primary good’: above n 17.

67. Fraser, N ‘from redistribution to recognition? Dilemmas of justice in a “post-socialist” age’ (1995) 212(1) New Left Review 68 Google Scholar.

68. See Moon and Allen, above n 64. However, as Raz points out, this imprecision is ‘but a reflection of the incommensurabilities with which life abounds’: Raz, J The Morality of Freedom (Oxford: Oxford University Press, 1986) p 409 Google Scholar.

69. Fraser, above n 55.

70. Taylor, above n 55, N Fraser, ibid.

71. See Vickers, above n 33, ch 1.

72. See Lindley, J ‘Race or religion? the impact of religion on the employment and earnings of Britain's ethnic communities’ (2002) 28 Journal of Ethnic and Migration Studies 427 CrossRefGoogle Scholar.

73. P Weller et.al Religious Discrimination in England and Wales Home Office Research Study No 22O (February 2001).

74. In 2004 a third of Muslims of working age in Great Britain had no qualifications, the highest proportion for any religious group. They were also the least likely to have degrees or equivalent qualifications (12%): Office of National Statistics Focus on Religion, available at http://www.statistics.gov.uk/focuson/religion/.

75. Muslim males and females in Great Britain had the highest rates of reported ill health in 2001. See the website available at http://www.statistics.gov.uk/cci/nugget.asp?id=959.

76. Ibid.

77. This example is for illustration only and should not be taken to suggest that this course of action is expected as a way to comply with the public sector duty.

78. See L Barmes ‘Equality law and experimentation: the positive action challenge’ (2009) 68 CLJ 623.

79. Fraser, above n 67.

80. Lindley, above n 72.

81. Fredman, above n 14.

82. Fredman, above n 59, p 11.

83. Collins, above n 59.

84. Fraser, above n 67.

85. Fairness and Freedom, above n 13.

86. Ibid.

87. Section 149(3).

88. This contrasts with the position in s 75 of the Northern Ireland Act 1998 where the duty is to have regard to the need to promote equality of opportunity on the various grounds, but only regard to the desirability of promoting good relations between groups. See Fredman, above n 14.

89. For examples see the regular cases studies reflecting good practice from both private and public sector organisations featured in the Equal Opportunities Review.

90. EOR August 2010 (London: Michael Rubenstein Publishing, 2010) p 2.

91. Fraser, above n 67.

92. On the question of hierarchies of rights, see Bell, M and Waddingon, L ‘Reflecting on inequalities in European equality law’ (2003) 28 EL Rev 349 Google Scholar and Vickers, above n 33, ch 7.

93. Indeed, it has been argued that the removal of hierarchy as between grounds may hinder the proper development of equality law: McCrudden, above n 54. See also Vickers, above n 35.