Is there scope for 'reasonable adjustment' in religious discrimination law?

The fault line between indirect discrimination analysis and a reasonable accommodations duty was one of the threads argued before the ECtHR in the case of Eweida and Ors v the United Kingdom, four conjoined cases about the degree of protection to be afforded to those manifesting religious belief. The judgment of the fourth chamber of the Strasbourg court on 15 January 2013 became final on 27 May 2013 after the Grand Chamber refused to hear a final appeal in respect of these challenges.

One of the claimants, Mrs Eweida, who had been prevented from wearing a cross while working as check-in staff for British Airways, won her challenge. The judgment hit the headlines. Prime minister David Cameron, in a rare pro-Strasbourg statement, said that he was "delighted" that the "principle of wearing religious symbols at work has been upheld".

The spotlight fell less on the other three claims brought by Ms Ladele, Ms Chaplin and Mr McFarlane, who lost.

One of those, brought by Chaplin was similar to that brought by Eweida. Chaplin had been requested by her employer to remove a necklace with a crucifix.

The key difference was that Chaplin '¨was a nurse and the hospital had health '¨and safety concerns regarding jewellery worn around the neck. Also, the hospital would permit a crucifix to be suspended from the lanyard on which staff wore their identity badges.

The other two failed challenges '¨concerned a perceived conflict between the claimants' beliefs regarding Christian teaching on homosexuality and duties '¨of non-discrimination on grounds of '¨sexual orientation.

Ladele, a registrar of births, marriages and deaths, objected to carrying out civil partnerships. McFarlane, a counsellor for Relate, had objected to providing psycho-sexual counselling to same-sex couples.

Insufficient protection

The European court disapproved of the line of case law which held that it is sufficient protection for religious freedom if the individual can resign from a post which imposes requirements which conflict with their religious views. It held that such a categorical approach was incorrect: the ability of resignation was another factor, and domestic courts should "weigh that possibility in the overall balance" rather than treating it as a trump card, which more closely follows the analysis of Lord Nicholls and Lady Hale in the case of R (Begum) v Denbigh High School [2007] 1 AC 100, than that of the majority.

In Eweida the ECtHR had been referred to American and Canadian jurisprudence where public employers have a duty to provide "reasonable accommodation" for those manifesting their religious belief, unless the accommodation involves an "undue hardship". This "accommodations" argument was neither accepted nor expressly rejected by the Strasbourg judges.

Before the European Court of Justice in Luxembourg, advocate general Poiares Maduro, in his opinion in case C-306/06 Coleman v Attridge Law, made reference to a Harvard Law Review article by Professor Christine Jolls ((2001) 115 Harvard Law Review 642). This argues that the duty to avoid indirect discrimination is, in reality, not much different from the duty to make reasonable accommodations - or reasonable adjustments, as English lawyers would call it. A controversial position and counterarguments abound.

Lady Hale noted in Archibald v Fife Council [2004] ICR 954 that the "reasonable adjustments" approach starts from the standpoint that the individual is to be treated differently. In contrast, the indirect discrimination approach starts from an assumption that people should be treated the same as one another, but that some measures, although neutral on their face, may have such a disproportionate and adverse effect on particular protected people that they should be prohibited.

Diverging analysis

The starting point is the same on both the fourth chamber's reasoning in Eweida and the reasonable accommodation analysis. On the chamber's analysis individuals' freedom to manifest their religious beliefs must be both tolerated and positively protected from the state and from private entities. Individuals manifesting their religious or philosophical beliefs are entitled to a higher weight of protection in the balance than other interests. This is also the fundamental starting point of the "reasonable accommodations" approach; this is why the person exercising religious freedom is treated differently.

Where the analysis starts to diverge is that the fourth chamber considered that, where a manifestation of belief conflicts with the rights of others, there will be an inevitable balancing exercise. For instance, in Chaplin, where the cross-wearing imposed a risk to health and safety of patients, it was proportionate to limit it. Specifically, where the manifestation of belief is a "real encroachment" with another individual's fundamental right to non-discrimination, (especially on grounds of sexual orientation), it will not be afforded protection in that balance (Ladele and McFarlane). Where the conflicting rights were of a lower order than fundamental rights (the desire to retain a consistent corporate image) as in Eweida, they would be afforded much less protection.

The reasonable accommodations analysis asks rather different questions. The individual claiming accommodation is separated from the generality of other people; they are not immediately pitched into balancing other competing rights and interests. In the disability context, this conceptual analysis has been incredibly powerful. If substantial disadvantage can be shown, the reasonable adjustments analysis draws the firepower in litigation away from the cause or worthiness of the substantial disadvantage, and focuses on its potential solution or mitigation. Broad based balancing arguments carry little weight in defending a reasonable adjustments claim.

It was arguable that this would have made a difference in the Eweida cases. Elias J in the EAT in Ladele had commented that "Ms Ladele's complaint is not that she was treated differently from others; rather it was that she was not treated differently when she ought to have been". As the partially dissenting opinions of Judges Vučinić and de Gaetano recognised, it was arguable in Ladele's case, as she had already been a registrar before civil partnerships were introduced, that some consideration should have been made of whether her religiously based objection could be accommodated.

However, in our view, Ladele would probably not have won on a "reasonable accommodations approach". As the purpose of civil partnership was to equalise the position legally for homosexual and heterosexual couples, it could be seen as an undue hardship for gay people to have access to a limited number of registrars.

Different context

Having decided not to hear the three failed challenges, the Grand Chamber did agree that the French "burqa ban" case should be transferred directly onto its docket (S.A.S. v France, application no 43835/11). This means that the S.A.S. case will "leapfrog" the chamber level and go straight to the Grand Chamber. The French "burqa ban" makes the covering of the face in public a criminal offence punishable by a fine. Although not an employment case, overlapping arguments about religious "accommodation" are likely to be run.

This difference of context is difficult for British discrimination lawyers. It is unlikely, politically and culturally, that a blanket ban on covering the face in all public places would ever become law in the UK; it would be seen as unacceptably intolerant as well as disproportionately discriminatory. UK case law on head coverings has to date focused on uniform requirements in schools and in workplaces, and not prohibitions which affect all public space. It is difficult to translate the types of arguments which were raised in the Eweida case, into such a different, and unlikely, context.

Might this analysis make a difference in the burqa ban case? Applying the fourth chamber's approach, it is likely to be difficult to show that there is a real conflict with the fundamental rights of others (as in the Chaplin, Ladele and McFarlane scenario), rather than other more general interests (as in Eweida). On an accommodations approach, the case seems perhaps only slightly more hopeless; what "undue hardship" is caused by permitting people to cover their faces in public?

However, notwithstanding the small number of cases where this analysis could make a difference, we consider that to introduce the "reasonable accommodations" analysis would not be a positive step.

Helpful structure

The fourth chamber's analysis in Eweida does not abandon an individual to the vagaries of a general balancing exercise, nor does it become mired in questions of pooling, as domestic indirect discrimination authorities have sometimes done. It has a helpful structure.

It protects religious or philosophical conscience as having inherent weight. Unpopular or unusual those beliefs may be, they are not to be automatically equated with more mundane preferences.

However, if the external manifestation '¨of that belief conflicts with fundamental rights of others, belief cannot be a trump card. Although there is a long and impressive history of individuals fighting to protect the rights of others to practise a certain belief, a legal system should not require individuals to give up their fundamental rights at the altar of '¨protecting a particular belief.

Religious or philosophical belief is not a disability. Importing a highly important and central tenet of disability discrimination law, which is central to ensuring equality of access, inclusion and public participation for people with disabilities, and is necessary to side-step the problems with indirect discrimination analysis, risks weakening that legal analysis where it is needed most.

Disability adjustments rarely come into real - but resolvable - conflict with the rights of others, but they sometimes do. Those people are entitled to protection unless that adjustment would cause such undue hardship that it is unreasonable.