The ‘reasonable accommodation’ of religion: Is this a better way of advancing equality in cases of religious discrimination?
| Published date | 01 June 2016 |
| Author | Elisabeth Griffiths |
| Date | 01 June 2016 |
| DOI | 10.1177/1358229116655652 |
| Subject Matter | Articles |
Article
The ‘reasonable
accommodation’ of
religion: Is this a better
way of advancing
equality in cases of
religious discrimination?
Elisabeth Griffiths
Abstract
Freedom of religion and the manifestation of religious belief can clash with working life in
a number of ways, including time away from work for religious observance, conflicts over
religious clothing and jewellery in an employer’s dress code or a request for a variation of
duties based on a particular religious belief. Guidance issued by the Equality and Human
Rights Commission (2013) following Eweida and others v. UK [2013] 57 EHRR 8 seems to
suggest that employers in Great Britain should consider the ‘reasonable accommodation’
of religion in the workplace and, in particular, how an individual chooses to manifest that
religious belief. Subsequently, there has been much debate about whether this is a better
way of dealing with religious discrimination cases than the current complex legal
framework of direct and indirect discrimination in the Equality Act 2010. Section 20 of
the Equality Act 2010 already allows for reasonable adjustments to be made to working
practices and the physical working environment for disabled employees. Should this duty
be expanded to include religion and what would be the consequences and impact of such
an accommodation or adjustment on the employment relationship?
Northumbria Law School, Northumbria University, United Kingdom of Great Britain and
Northern Ireland
Corresponding author:
Elisabeth Griffiths, Northumbria Law School, Northumbria University, Newcastle Upon Tyne,
NE1 8ST, United Kingdom of Great Britain and Northern Ireland.
Email: elisabeth.griffiths@northumbria.ac.uk
International Journalof
Discrimination and theLaw
2016, Vol. 16(2-3) 161–176
ªThe Author(s) 2016
Reprints and permission:
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DOI: 10.1177/1358229116655652
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Keywords
Religious discrimination, equality, reasonable accommodation, disability discrimination,
reasonable adjustment, indirect discrimination, religion or belief, employment
relationship.
Introduction
The Equality Act 2010 brings all ‘protected characteristics’
1
together into one piece of
legislation, all separate ‘silos’ (Solanke, 2011) but in theory equal before the law, no one
more important than the other. However, some protected characteristics which may have
an impact on one’s ability to do a particular job at particular times, such as pregnancy,
age or disability are subject to special rules. Other protected characteristics, such as sex,
race, sexual orientation and religion or belief, have less impact on one’s ability to do a
particular job and should largely be ignored by an employer unless that employer is
seeking to rely on a particular work requirement having regard to the nature of the work.
2
Nevertheless, the issues that have arisen from well-publicized religious discrimination
cases
3
demonstrate that, although the private religious belief per se does not necessarily
affect the ability of a person to do a job, the manifestation of religion may impact on the
way in which, or the extent to which, that person is prepared to carry out their employ-
ment contractual duties.
The law on religion or belief is relatively recent and, as suggested by the Equality and
Human Rights Commission (EHRC) Research report on religion or belief, the law in this
area ‘addresses complex issues in a context where there is considerable difference of
opinion as to how the law should be framed and applied’ (Edge and Vickers, 2015: 3). It
is fair to say that much has been written in the United Kingdom about religious discrim-
ination in the workplace in the last 5 years. The debate is gathering pace and one aspect
ripe for further consideration is the extent to which the personal freedoms surrounding
religious beliefs and the manifestation of those beliefs should be recognized in the public
space of work, particularly when those religious beliefs conflict with the employer’s
desire to run an efficient, profitable business or with the personal freedoms of other
employees and customers/service users.
This article will re-examine whether religion too should be subject to special rules,
either through a duty of reasonable accommodation or adjustment,
4
or as suggested in the
EHRC Research report, a separate right to request an accommodation similar to the right
to request flexible working (Edge and Vickers, 2015: 50–57). This article will examine
whether a positive duty of reasonable accommodation of (or ‘reasonable adjustment’ for)
religion could have a constructive impact on cases of religious discrimination in the
workplace and whether this might be preferable to the current negative duty of ‘do not
discriminate’ which can pitch one protected characteristic against another. In examining
the potential impact of reasonable accommodation of religion on the employment rela-
tionship, this article will scrutinize arguments for and against the reasonable accommo-
dation principle and will also consider what employers should take into account when
assessing whether an accommodation is beneficial and, most importantly, ‘reasonable’.
162 International Journal of Discrimination and the Law 16(2-3)
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