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THE GOD “DILUTION”? RELIGION, DISCRIMINATION AND THE CASE FOR REASONABLE ACCOMMODATION

Published online by Cambridge University Press:  20 November 2013

Matthew Gibson
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Abstract

Anti-discrimination complaints by religious employees have constructed seemingly intractable conflicts. The United Kingdom courts have resolved these disputes by diluting individual religious liberty, particularly when determining questions of disadvantage and proportionality under indirect discrimination. This article explores an alternative UK anti-discrimination claim route for religious employees, namely an employer duty of reasonable accommodation. A comparative analysis outlines the corresponding Canadian duty. This model is applied to UK employment cases featuring indirect religious discrimination, specifically those claims which formed the recent applications in Eweida and Others v UK. It is suggested that adoption of the Canadian model be considered: its nuanced approach to proportionality is particularly instructive. Whilst such a UK duty could prove controversial, it would cohere with both normative theory in law and religion and conceptual understanding of anti-discrimination law. Moreover, reasonable accommodation's individualised focus should be acclaimed; it need not compromise collective notions of religious liberty.

Keywords

Religiondiscriminationemploymentsexual orientationUnited Kingdomexceptionsreasonable accommodation
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Articles
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The Cambridge Law Journal , Volume 72 , Issue 3 , November 2013 , pp. 578 - 616
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Copyright © Cambridge Law Journal and Contributors 2013 

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References

1 Employment remains the main United Kingdom (UK) anti-discrimination context in which most religious conflicts have been fought. The possibility of reasonable accommodation for religious individuals in other contexts, such as goods and services provision, entails a separate interrogation of both comparative reasonable accommodation and the relevant UK case law. Accordingly, attention is restricted to employment. This focus is also explained at the start of Part III.

2 Attention is concentrated on the UK sphere. Others have recently investigated the introduction of a reasonable accommodation requirement for religion in the European context. For example, see Alidadi, K., “Reasonable Accommodations for Religion and Belief: adding value to art. 9 ECHR and the EU's anti-discrimination approach in employment?” (2012) 37 E.L.Rev 693Google Scholar and Howard, E., “Reasonable Accommodation of Religion and Other Discrimination Grounds in EU Law” (2013) 38 E.L.Rev 360Google Scholar.

3 For present purposes, calls to “law and religion” scholarship are references to research concerning the effects of “‘external’, temporal laws affecting religious individuals and groups. This consists of laws made by the state, international bodies and sub-State institutions”: R. Sandberg, Law and Religion (Cambridge 2011), 6. Sandberg defines this as “religion law”: p. 117.

4 This dilution claim is explored more fully in Part IIC.

5 (Applications nos. 48420/10, 59842/10, 51671/10 and 36516/10) (2013) 57 E.H.R.R. 8.

6 See Part IIB.

7 See Parts IIA and C. See also, generally, Parts IV and V.

8 See Part III.

9 For examples, see the discussion in Part VI.

10 Discussion will focus on anti-discrimination law in Great Britain due to its wider area of application. Indeed, in relation to Northern Ireland, Vickers notes that, “the historical and political context of the [anti-discrimination] protection is peculiar to Northern Ireland, and so this experience is not always of direct relevance to the rest of the UK”: L. Vickers, Religious Freedom, Religious Discrimination and the Workplace (Oxford 2008), 121, note 4.

11 Associated forms of discrimination, such as victimisation and harassment, will not be discussed. They are not germane to the proceeding analysis.

12 S. 4.

13 See p. 12.

14 Ibid.

15 Ibid. Some cases have raised issues concerning individual atheist believers. See, for example, R (on the application of the National Secular Society) v Bideford Town Council (Bideford) [2012] EWHC 175 (Admin), and an unsuccessful indirect discrimination claim by an atheist town councillor who objected to the saying of prayers at town council meetings.

16 Grainger plc v Nicholson [2010] IRLR 4 (Grainger).

17 Maistry v British Broadcasting Corporation [2011] EqLR 549.

18 Hashman v Milton Park (Dorset) Ltd [2011] EqLR 426.

19 Greater Manchester Police Authority v Power [2009] EAT 0434/09/DA.

20 Kelly v Unison [2009] ET 2203854/08.

21 Farrell v South Yorkshire Police Authority [2011] EqLR 934.

22 Lisk v Shield Guardian Co Ltd [2011] EqLR 1290.

23 J. Rivers, “The Secularisation of the British Constitution” (2012) 14 Ecc. L.J. 371, 390. The consequences of requiring such a comparator are discussed below: see Parts IIC1 and IIIA.

24 The label “exception” is used (as opposed to “exemption” or “opt-out”) as the EqA 2010 adopts this term. Indeed, Sandberg states that he “follows the practice of the Equality Act 2010 which refers to ‘exceptions’”: “The Right to Discriminate” (2011) 13 Ecc. L.J. 157, 159, note 11. Separate philosophical debates exist concerning the differences between “exceptions” and “exemptions”. For example, see Nehushtan, Y., “Religious Conscientious Exemptions” (2011) 30 Law and Phil. 143, 145CrossRefGoogle Scholar, R. Ahdar and I. Leigh, Religious Freedom in the Liberal State (Oxford 2005), 309, Esau, A., “‘Islands of Exclusivity’: religious organizations and employment discrimination” (2000) 33 U.B.C. Law Rev. 719, 750–751Google Scholar and W. Twining and D. Miers, How To Do Things With Rules (London 1999), 135–136.

25 EqA 2010, Schedule 9, para. 2.

26 Ibid., para. 3.

27 Esau, see note 24 above, p. 827.

28 J. Rivers, The Law of Organised Religions: between establishment and secularism (Oxford 2010), 322 (emphasis added).

29 Sandberg, see note 3 above, p. 200 (emphasis added).

30 Extensive treatment of these highly contested justifications is beyond the scope of this article. Rather, the objective is to highlight a particularly prevailing justification supporting legal protection of religion. This will provide a firmer basis on which to argue later for a UK employer duty of reasonable accommodation for religious employees.

31 For example, see T. Lindholm, “Philosophical and Religious Justifications of Freedom of Religion or Belief” in T. Lindholm, W.C. Durham and B. Tahzib-Lie (eds.) Facilitating Freedom Of Religion Or Belief: a deskbook (Leiden 2004), 47.

32 See note 10 above, p. 43 (emphasis added).

33 Moon, G., “Dignity Discourse in Discrimination Law: a better route to equality?” (2006) 6 E.H.R.L.R. 610, 625–626Google Scholar.

34 Khaitan, T., “Dignity as an Expressive Norm: neither vacuous nor a panacea” (2012) 32 O.J.L.S.1, 14Google Scholar.

35 Leigh, I., “Balancing Religious Autonomy and Other Human Rights under the European Convention” (2012) 1 Oxford Journal of Law and Religion 109, 111CrossRefGoogle Scholar.

36 Vickers, L., “Promoting Equality or Fostering Resentment? The Public Sector Equality Duty and Religion and Belief” (2011) 31 Leg.Stud. 135, 138CrossRefGoogle Scholar.

37 Ibid.

38 The definitions of “religion” and “belief” are contained in the EqA 2010: Explanatory Notes and are outlined above (see notes 13 and 14 above, respectively). The definition of “belief” contained in these explanatory notes (including the reference to human dignity) is that employed by Burton J. in Grainger at para. [24].

39 See note 10 above, p. 40.

40 As an example, the EqA 2010: Explanatory Notes advise that “adherence to a particular football team” would not satisfy the definition of ‘belief’: p. 12.

41 C. Evans, Freedom of Religion Under the European Convention on Human Rights (Oxford 2001), 32 (emphasis added).

42 See note 10 above, p. 38.

43 The formal/substantive equality dichotomy is revisited below: see Part IIIA.

44 Vickers, see note 36 above, pp. 148–149.

45 See note 10 above, p. 40.

46 McCrudden, C., “Religion, Human Rights and Equality in the Public Sphere” (2011) 13 Ecc. L.J. 26, 37CrossRefGoogle Scholar.

47 Occasionally, cases have raised issues of protection for non-religious beliefs. For example, see those cases referred to above at notes 15–19.

48 The exception is Chaplin v Royal Devon and Exeter Hospital NHS Foundation Trust [2010] ET 1702886/2009 which is included for discussion as the claimant's case was joined with the appellant's claim in Eweida v British Airways PLC [2010] EWCA Civ 80 in an application to the ECtHR: Eweida and Others (2013) 57 E.H.R.R. 8.

49 McClintock v Department of Constitutional Affairs [2008] I.R.L.R. 29.

50 Ladele v London Borough of Islington [2009] EWCA Civ 1357.

51 McFarlane v Relate Avon Ltd. [2010] EWCA Civ B1.

52 Azmi v Kirklees Metropolitan Council [2007] I.R.L.R. 484.

53 Harris v NKL Automative Ltd. [2007] UKEAT 0134_07_0310.

54 Eweida v British Airways PLC [2010] EWCA Civ 80.

55 Chaplin v Royal Devon and Exeter Hospital NHS Foundation Trust [2010] ET 1702886/2009.

56 Cherfi v G4S Security Services [2011] Eq. L.R. 825.

57 S. 19, EqA 2010.

58 Per Elias J. in the EAT ([2009] IRLR 78) at para. [31] and per Sedley L.J. in the CA at para. [28].

59 At para. [28] of the judgment.

60 This is notwithstanding the ET decision in Noah v Desrosiers t/a Wedge (Noah) [2008] ET 2201867/07 where a hair salon terminated a Muslim woman's interview for the position of assistant stylist on the basis that the interviewee wore a headscarf which concealed her own haircut. The salon was known for very modern hair styles and viewed it as legitimate that staff display their own hair cut to clients. The Muslim applicant successfully claimed indirect discrimination on grounds of religion or belief. Whilst evidence of group disadvantage was not explored, such disadvantage was conceded by the respondents: per Judge Auerbach at para. [132].

61 Hatzis, N., “Personal Religious Belief in the Workplace: how not to define indirect discrimination” (2011) 74 M.L.R. 287, 292CrossRefGoogle Scholar.

62 Vickers, L., “Religious Discrimination in the Workplace: an emerging hierarchy?” (2010) 12 Ecc. L.J. 280, 288–289CrossRefGoogle Scholar.

63 For example, see comments by Sedley L.J. in Eweida at paras. [16]–[17].

64 Hatzis, see note 61 above, pp. 303–305.

65 These questions are considered further below. See Parts IIIA and VB.

66 In Eweida and Others (2013) 57 E.H.R.R. 8 the ECtHR declared that this rule should be considered under Article 9(2) rather than prejudicing assessment of prima facie interference under Article 9(1): at para. [83].

67 Sandberg, R., “Laws and Religion: unravelling McFarlane v Relate Avon Limited” (2010) 12 Ecc. L.J. 361, 365, note 28.CrossRefGoogle Scholar

68 See note 3 above, p. 117.

69 M. Hill and R. Sandberg, “Is Nothing Sacred? Clashing Symbols in a Secular World” [2007] P.L. 488, 503–504.

70 See note 67 above, p. 365.

71 See note 62 above, p. 288.

72 This is addressed, generally, in Parts IV and V.

73 See note 23 above, p. 390.

74 See the comments of Sedley L.J. in Eweida that whilst all the protected characteristics are “objective characteristics of individuals; religion and belief are matters of choice alone” (para. [40]). For similar remarks, see Lord Hope in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31 at [11] and, in relation to children's capacity to be religious, Holman J. in both An NHS Trust v MB [2006] EWHC 507 (Fam) at [50] and The NHS Trust v A [2007] EWHC 1696 (Fam) at [41].

75 See note 67 above, pp. 363–364.

76 Sandberg, see note 24 above, p. 172.

77 Malik, M., “Religious Freedom, Free Speech and Equality: conflict or cohesion?” (2011) 17 Res Publica 21, 38CrossRefGoogle Scholar.

78 For example, see Vickers, note 62 above (pp. 301–303), and McColgan, A., “Class Wars? Religion and (In)equality in the Workplace” (2009) 38 Industrial Law Journal 1, 21–29CrossRefGoogle Scholar.

79 For example, see discussion of the Canadian model in Part IIIB1 and its application to Ladele in Part IVB.

80 Conversely, Howard (see note 2 above) has claimed that these trends do not establish a need to introduce reasonable accommodation of religion or belief in discrimination law. She interprets the tests of group disadvantage and justification under indirect discrimination as affording sufficient consideration of attempts made at accommodation: pp. 365–370.

81 Bribosia, E., Ringelheim, J. and Rorive, I., “Reasonable Accommodation for Religious Minorities: a promising concept for European antidiscrimination law?” (2010) 17 Maastricht Journal of European and Comparative Law 137, 139CrossRefGoogle Scholar. This idea is discussed more below in Parts IIIA and B.

82 Ibid.

83 R. Moon, “Introduction: law and religious pluralism in Canada” in R. Moon (ed.), Law and Religious Pluralism in Canada (Vancouver 2008), p. 8. This links with the discussion in Part IIB.

84 See below, Part IV.

85 Eweida and Others (2013) 57 E.H.R.R. 8.

86 As Eweida and McFarlane were employed by private companies their complaints did not directly relate to actions by the UK. In relation to their applications, the court therefore proceeded to examine whether in all the circumstances the UK authorities had complied with their positive obligation under Article 9: see paras. [91] and [109], respectively.

87 See paras. [91]–[95].

88 See paras. [98]–[100], [105]–[106] and [109], respectively.

89 See Part IIC.

90 See Part IIC1.

91 See Part VC.

92 Whilst reasonable accommodation does apply in Canadian goods and services provision (per McLachlin J. in British Columbia (Superintendant of Motor Vehicles) v British Columbia (Council of Human Rights) [1999] 3 SCR 868 at [20] and [23]–[45]), there is a lack of related jurisprudence.

93 For example, see Bribosia et al, note 81 above (pp. 144–150), Vickers, note 10 above (pp. 180–206), E. Howard, Law and the Wearing of Religious Symbols: European bans on the wearing of religious symbols in education (Abingdon 2012) (pp. 129–134) and Alidadi, note 2 above (p. 694).

94 For example, see discussion by Rix L.J. of the Canadian system in Copsey v WWB Devon Clays Ltd. [2005] EWCA Civ 932 at [67]–[69].

95 See note 10 above, p. 190.

96 A. Lawson, Disability and Equality Law in Britain: the role of reasonable adjustment (Oxford 2008), 5.

97 See note 10 above, p. 186.

98 See Part IIIB1.

99 M. Connolly, Discrimination Law, 2nd ed. (London 2011), 6 (original emphasis).

100 Waddington, L. and Hendriks, A., “The Expanding Concept of Employment Discrimination in Europe: from direct and indirect discrimination to reasonable accommodation discrimination” (2002) 18 International Journal of Comparative Labour Law and Industrial Relations 403, 426CrossRefGoogle Scholar.

101 See note 10 above, p. 76.

102 See note 99 above, p. 155.

103 Swinton, K., “Accommodating Equality in the Unionized Workplace” (1995) 33 Osgoode Hall L.J. 703, 707Google Scholar.

104 See note 100 above, p. 414.

105 See note 10 above, p. 223.

106 See note 2 above, p. 699.

107 See note 33 above, p. 647.

108 See discussion above, Part IIB.

109 See note 100 above, p. 427.

110 For background commentary on the domestic system, see Lawson, note 96 above, pp. 5–13.

111 The idea is the same regardless of the difference in terminology: D. Schiek, L. Waddington and M. Bell, Cases, Materials and Text on National, Supranational and International Non-Discrimination Law (Oxford 2007), 696. Directive 2000/78/EC (employment equality), 27 November 2000, [2000] OJ L303/16, uses the phrase ‘reasonable accommodation’: Article 5.

112 See, for example, the Management of Health and Safety at Work Regulations 1999 SI 1999/3242: risk assessment for new or expectant mothers regarding health and safety (Regulation 16(1)) and, if health and safety risks cannot be avoided, having working conditions or hours of work changed (Regulation 16(2)). See also the Employment Rights Act 1996 allowing employees time off work to receive ante-natal care (s. 55(1)).

113 See ss. 15 and 20–22, respectively. The DDA provided for ‘disability related discrimination’: s. 3A(1)(a).The EqA 2010's reasonable adjustment duty applies across employment and goods and services: s. 20.

114 Archibald v Fife Council [2004] UKHL 32.

115 The more familiar label ‘anti-discrimination law’ is used here even though in Canada both anti-discrimination and reasonable accommodation are referred to under the broader label of ‘equality law’.

116 Recently, it was said that reasonable accommodation does not operate outside the anti-discrimination context: per McLachlin C.J. in Alberta v Hutterian Brethren of Wilson Colony [2009] 2 SCR 567 at [68] and [69].

117 D. Schneiderman, “Associational Rights, Religion and the Charter” in Moon (ed.), Law and Religious Pluralism in Canada, p. 67.

118 Beaman, L. G., “‘It Was All Slightly Unreal’: what's wrong with tolerance and accommodation in the adjudication of religious freedom?” (2011) 23 Canadian Journal of Women and the Law 442, 443CrossRefGoogle Scholar.

119 Per Iacobucci J. in Syndicat Northcrest v Amselem [2004] 2 SCR 551 at [42]–[43].

120 Per McLachlin J. in British Columbia (Public Service Employee Relations Comm) v BCGEU [1999] 3 SCR 3 at [54].

121 Ibid., at paras. [65] and [68].

122 [1985] 2 SCR 536, per McIntyre J. at para. [23].

123 [1990] 2 SCR 489.

124 G. Moon, ‘From Equal Treatment to Appropriate Treatment: what lessons can Canadian equality law on dignity and on reasonable accommodation teach the United Kingdom?’ [2006] E.H.R.L.R. 695, 710.

125 per Wilson J. at p. 520.

126 Ibid., at p. 521.

127 For example, see O'Malley where a Seventh Day Adventist requested absence from work between sunset on Friday and sunset on Saturday. The court ruled that in situations like this, especially where an employer has already attempted to accommodate, it would not be unreasonable for some cost to be put on the employee: per McIntyre J. at para. [28].

128 It is not necessarily the case that a multi-party agreement across employer, employees and any relevant union can frustrate any determination of the best mode of accommodation for a particular employee. See, generally, Central Okanagan School District Number 23 v Renaud (Renaud) [1992] 2 SCR 970.

129 See Renaud: ‘[t]he employer must establish that actual interference with the rights of other employees, which is not trivial but substantial, will result from the adoption of the accommodating measures. Minor interference or inconvenience is the price to be paid for religious freedom in a multicultural society’, per Sopinka J. at p. 985.

130 Where other workers could have been reassigned at no extra inconvenience and without an increase in the work load of other employees, accommodation may be required. See Moore v British Columbia (Ministry of Social Services) (1992) 17 CHRR D/426, per The British Columbia Council of Human Rights at para. [68].

131 This includes the practical challenges of making suitable accommodation: per Wilson J. in Alberta at p. 521.

132 Health and safety concerns will prevail over religious employee accommodation requests: Pannu v Skeena Cellulose Inc. (2000) 38 CHRR D/494.

133 Indeed, this was acknowledged in Alberta by Wilson J. at p. 521.

134 [1994] 2 SCR 525.

135 Per Cory J. at p. 546. This is reinforced by J-F Gaudreault-DesBiens, “Religious Challenges to the Secularized Identity of an Insecure Polity: a tentative sociology of Québec's ‘reasonable accommodation’ debate” in R. Grillo et al (eds.), Legal Practice and Cultural Diversity (Aldershot 2009), 152.

136 Ibid., Gaudreault-DesBiens, p. 152.

137 See note 124 above, p. 710.

138 [1999] 3 SCR 3.

139 See note 124 above., p. 711 (emphasis added). See also McLachlin J. at para. [72] of Meiorin.

140 See note 124 above, p. 710 (emphasis added).

141 Howard, see note 93 above, p. 132.

142 US Equal Employment Opportunity Commission website: <http://www.eeoc.gov/laws/types/religion.cfm>, accessed 12 August 2013.

143 ‘Minimal’ is the level at which the courts interpret undue hardship: per White J. in Trans World Airlines v Hardison 432 US 63 (1977), 84 and per Rehnquist C.J. in Ansonia Board of Education v Philbrook 479 US 60 (1986), 67.

144 Sonné, J., “The Perils of Universal Accommodation: the workplace Religious Freedom Act of 2003 and the affirmative action of 147,096,000 souls'”(2003–2004) 79 Notre Dame L.Rev. 1023, 1043–1044Google Scholar.

145 Cromwell, J., “Cultural Discrimination: the reasonable accommodation of religion in the workplace” (1997) 10 Employee Responsibilities and Rights Journal 155, 159CrossRefGoogle Scholar.

146 R. Gregory, Encountering Religion in the Workplace: the legal rights and responsibilities of workers and employers (Ithaca 2011), 186.

147 Vickers, L., “Approaching Religious Discrimination at Work: lessons from Canada” (2004) 20 International Journal of Comparative Labour Law and Industrial Relations 177, 189Google Scholar.

148 Gaudreault-DesBiens, see note 135 above, p. 152.

149 See note 124 above, p. 721.

150 See note 147 above, p. 190.

151 Gaudreault-DesBiens, see note 135 above, p. 152.

152 The facts are taken from the judgments of Elias J. in the EAT ([2009] IRLR 154) and Lord Neuberger M.R. in the CA ([2009] EWCA Civ 1357), the Statement of Facts in Ladele and McFarlane v UK [2011] ECHR 737, the Equality and Human Rights Commission's (EHCR) submission in Ladele and McFarlane v UK (available at: <http://www.equalityhumanrights.com/uploaded_files/legal/ehrc_submission_to_ecthr_sep_2011.pdf>, accessed 12 August 2013), the Foreign and Commonwealth Office's (FCO) Comments on the third party interventions in Ladele and McFarlane v UK, 14 October 2011 and the FCO Observations of the Government of the United Kingdom in Ladele and McFarlane v UK, 14 October 2011.

153 This distinction has been debated by Sandberg, see note 24 above, pp. 163–166.

154 R. Sandberg, ‘The Implications of the Court of Appeal Decision in Ladele and other Case Law Developments’: available at: <http://www.law.cf.ac.uk/clr/networks/Sandberg%20_%20The%20Implications%20of%20the%20Court%20of%20Appeal%20Decision%20in%20Ladele.pdf>, accessed 12 August 2013, p. 7.

155 Per Elias J at para. [90] in the EAT and per Lord Neuberger M.R. at para. [42] in the CA. Direct discrimination was claimed under the Employment Equality (Religion or Belief) Regulations 2003, SI 2003/1660, (RB Regs 2003), Regulation 3(1)(a).

156 Per Elias J. at para. [117] and per Lord Neuberger M.R. at para. [75]. Indirect discrimination was claimed under the RB Regs 2003, Regulation 3(1)(b).

157 Per Elias J. in the EAT at paras [111]–[112] and per Lord Neuberger M.R. in the CA at para. [52].

158 Whilst ugly, this term captures the idea that Ladele's duties could have reverted to those prior to the coming-into-force of the CPA. The alternative term “redesignate” does not sufficiently convey this possibility.

159 Per Lord Neuberger M.R. at para. [15].

160 This choice is made clear in para. [7] of Lord Neuberger M.R.'s judgment where it is noted that Islington ‘decide[d] that civil partnership duties should be shared out between all the existing registrars’ (emphasis added). See also comments at para. [46]. The lawfulness of not designating religious employees was confirmed by Elias J. in the EAT at para. [116] and by Lord Neuberger M.R. in the CA at para. [75].

161 Per Elias J. at para. [4] (emphasis added).

162 See note 62 above, p. 293 (emphasis added).

163 The morale of Ladele's gay colleagues is discussed below in Part IVB1.

164 At paras. [116]–[117].

165 See note 62 above, p. 292.

166 As noted by Lord Neuberger M.R. in the CA at para. [74]. The dissenting judgment of Vučinić and de Gaetano J.J. in Eweida and Others (2013) 57 E.H.R.R. 8 also discussed this in relation to the decision to designate: at paras. [6]–[7].

167 Per Lord Neuberger M.R. at para. [40].

168 [1992] 2 SCR 970.

169 Per Sopinka J. at p. 985, quoted above: note 129.

170 Ibid.

171 See note 62 above, pp. 296–297.

172 Per Lord Neuberger M.R. at para. [44], quoting from the ET.

173 Renaud, per Sopinka J. at p. 989.

174 Per Lord Neuberger M.R. at para. [45].

175 Ibid. at para. [52].

176 Ibid. at paras. [50] and [52].

177 per Elias J. at para. [97].

178 R. Sandberg, ‘Submission to the Consultation on Legal Intervention on Religion or Belief Rights’ (EHRC Submission), September 2011: previously available at <http://www.law.cf.ac.uk/clr/research/Russell%20Sandberg%20%28Cardiff%20University%29%20Submission%20to%20the%20Consultation%20on%20Legal%20Intervention%20on%20Religion%20or%20Belief%20Rights.pdf>, accessed 25 February 2013.

179 Per Elias J. at para. [100].

180 SI 2007/1263.

181 At para. [69].

182 At para. [106].

183 As found by both the EAT at para. [98] and the CA at para. [46].

184 This is outlined by Lord Neuberger M.R. at para. [9] (emphasis added).

185 Lafferty, L., “Religion, Sexual Orientation and the State: can public officials refuse to perform same-sex marriage?” (2007) 85 Can.Bar Rev. 287, 311 (emphasis added).Google Scholar

186 Lafferty notes that in some Canadian provinces there are accommodations made for designated officials who do not wish to conduct same-sex marriage ceremonies and/or participate in the initial public-contact stages of such enquiries – as long as replacement officials can be identified. Those provinces are Ontario, Québec and Nova Scotia: p. 313.

187 See note 185 above, p. 311.

188 Ibid., p. 312.

189 G. Bouchard & C. Taylor, Building the Future: a time for reconciliation (Publication of the Québec Government, Québec 2008), 24.

190 MacDougall, B., Bonthuys, E., Norrie, K. and van den Brink, M., “Conscientious Objection to Creating Same-Sex Unions: An International Analysis” (2012) 1 Canadian Journal of Human Rights 127, 155Google Scholar.

191 [2011] SKCA 3.

192 The court's decision was not based on a reasonable accommodation analysis. Rather, it was based on a violation of s. 15(1) (non-discrimination on grounds of, amongst others, sexual orientation) of the Canadian Charter of Rights and Freedoms which could not be justified as proportionate under s. 1. However, the court's reasoning is relevant to the instant reasonable accommodation analysis.

193 Per Richards J.A. at paras. [5] and [94]. For treatment of this reason in Canada see MacDougall, B., “Refusing to Officiate at Same-Sex Marriage Ceremonies” (2006) 69 Saskatchewan L.Rev. 351, 358–360Google Scholar.

194 Per Richards J.A. at para. [41].

195 Ibid., paras [85]–[86].

196 Ibid., para. [85].

197 Ibid., para. [86].

198 (2013) 57 E.H.R.R. 8.

199 Per Vučinić and de Gaetano JJ. at para. [7].

200 Per Elias J. at para. [108].

201 Per Lord Neuberger M.R. at para. [68], summarising the arguments of Liberty as an intervening party.

202 Submission of the EHCR at para. [35]. See also paras. [50] and [56].

203 See note 10 above, p. 170. See also Noah [2008] ET 2201867/07 per Judge Auerbach at para. [160].

204 See note 219 below.

205 See discussion above, Part IIA.

206 See note 62 above, p. 299.

207 See note 10 above, p. 232.

208 See note 178 above.

209 See note 3 above, p. 130.

210 Stychin, C., “Faith in the Future: sexuality, religion and the public sphere” (2009) 29 O.J.L.S. 729, 749–750CrossRefGoogle Scholar.

211 Ibid., p. 749 (original emphasis).

212 Ibid., p. 753.

213 McGoldrick, D., “Accommodating Muslims in Europe: from adopting Sharia law to religiously based opt outs from generally applicable laws” (2009) 9 H.R.L.Rev. 603, 625–626Google Scholar.

214 R. Trigg, Equality, Freedom and Religion (Oxford, 2012), 125.

215 In the EAT, Elias J. noted Liberty's argument that accommodation could, “lead to situations which almost everyone would find wholly unacceptable. For example, a racist who objected to performing mixed race marriages or Jewish marriages would have to be accommodated in similar circumstances”: at para. [106].

216 Per Richards J.A. at para. [25].

217 See above, Part IIA.

218 See note 214 above, p. 125.

219 See note 28 above, pp. 318–322.

220 See note 23 above, p. 399.

221 See note 10 above, p. 42.

222 Vickers, L., “Twin Approaches to Secularism: organised religion and society” (2012) 32 O.J.L.S. 197, 201CrossRefGoogle Scholar.

223 See note 10 above, p. 40 (emphasis added).

224 EHRC submission in Eweida and Chaplin v UK, at para. [16] (emphasis added).

225 Although see Hatzis, note 61 above, who argues that both distributive and corrective justice have roles to play in indirect discrimination: pp. 303–305.

226 See note 117 above, p. 67.

227 See note 100 above, pp. 414–415.

228 See note 118 above, p. 447.

229 Ibid., p. 443. In relation to conscientious religious exemptions, Nehushtan has claimed that the principle of tolerance (as opposed to a combination of other explanations, such as ideas of individual/communal/minority rights, affirmative action or equality) best describes the practice of granting such exemptions. This is because tolerance offers the most useful description of the state of mind and behaviour of the state in engaging in that process. See Y. Nehushtan, “What are Conscientious Exemptions Really About?” Oxford Journal of Law and Religion. Advance Access published 14 December 2012, doi: 10.1093/ojlr/rws045.

230 As an alternative, Alidadi notes the ‘deep equality’ approach which seeks to undo existing power structures so as to break down existing insider/outsider distinctions. An example given is overhaul of the current public holidays schedule which would mean religious minorities need not request days off – they would have the benefit of not working when their religion so dictated: see note 2 above, p. 712.

231 See note 62 above, p. 289.

232 See explanation in Part II.

233 See note 214 above, p. 124.

234 See above note 62, p. 292 and, generally, pp. 292–294.

235 As quoted in A. Donald et al, Equality and Human Rights Commission Research Report 84: religion or belief, equality and human rights in England and Wales, p. 103. Available at: <http://www.equalityhumanrights.com/uploaded_files/research/rr84_final_opt.pdf>, accessed 12 August 2013.

236 Per Underhill J. at para. [26].

237 For example, see Laws L.J.'s discussion of the facts at para. [4] in the CA.

238 Others take a more strict view of accommodation in such circumstances. See, for example: Hill, M., “Religious Symbolism and Conscientious Objection in the Workplace: an evaluation of Strasbourg's judgment in Eweida and others v United Kingdom” (2013) 15 Ecc.L.J. 191CrossRefGoogle Scholar. Hill states that McFarlane's application was “rightly rejected because he voluntarily put himself in a position where he would be expected to provide psycho-sexual counsel to both straight and gay couples; and because accommodating him by filtering clients was not possible” (p. 202). Similarly, Donald has indicated that “individuals whose religion or belief is important to them have a responsibility to make sensible career choices and may have to make personal sacrifices to avoid conflict with the law or professional guidelines, especially where conflict is foreseeable”: Donald, A., “Advancing Debate about Religion or Belief, Equality and Human Rights: grounds for optimism?” (2013) 2 Oxford Journal of Law and Religion 50, 63CrossRefGoogle Scholar.

239 Per Elias J. in the EAT at para. [17].

240 See para. [94].

241 Per Judge Hollow at paras. [20]–[21].

242 Ibid. at para. [18].

243 Ibid. at para. [14].

244 Ibid. at paras. [13] and [19].

245 Ibid., at para. [29].

246 See para. [99].

247 See note 100 above, p. 427.

248 See note 111 above, p. 745.

249 See note 10 above, p. 224.

250 See note 100 above, p. 427.

251 See note 235 above, p. 65.

252 ‘Clearing the Ground: preliminary report into the freedom of Christians in the UK’, Christians in Parliament, February 2012. See: <http://www.eauk.org/current-affairs/publications/clearing-the-ground.cfm>, accessed 12 August 2013.

253 Ibid., p. 35.

254 Ibid.

255 See note 235 above, p. 66.

256 Ibid., pp. 63–64.

257 See the Commission's Consultation Response Summary: <http://www.equalityhumanrights.com/uploaded_files/legal/consultation_response_summary.pdf>, accessed 12 August 2013.

258 See online news announcement, ‘Legal Intervention on Religion of Belief Rights’: <http://www.equalityhumanrights.com/legal-and-policy/human-rights-legal-powers/legal-intervention-on-religion-or-belief-rights/>, accessed 12 August 2013.

259 Ibid.

260 T. Hammarberg, Opinion of the Commissioner for Human Rights on National Structures for Promoting Equality, Strasbourg, 21 March 2011, p. 5.

261 Ibid., p. 9.

262 See note 26 above, p. 398.