Discrimination, pt1/3 - Christians

Thought experiment: how would you feel if the government decided your beliefs weren't a proper philosophy? Or if a judge told you something wasn't part of your religion?

Generally I find law fairly boring, but there are exceptions. One exception is discrimination based on belief. This area throws up a whole load of interesting cases and interesting issues, as both religious and non-religious people try to assert their rights. In particular, it brings out conflicts between different rights, and the question of what counts as a legally relevant religion or belief. It's also an area where it seems to me that the courts have made sensible decisions, but where eventually they are going to be forced into farcical or impossible positions.

This is mainly about employment law, because that's what I'm most familiar with. Under the Equality Act, employers are not allowed to discriminate against employees (or those applying for jobs) based on a range of “protected characteristics.” These characteristics are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, sex and sexual orientation.

This doesn't mean you have to hire people who are unable or unwilling to do the job. Say you're running a greasy-spoon serving mainly bacon and pork sausages to overweight lorry drivers and mouthy builders. You're hiring a new chef. You are absolutely not allowed to reject an applicant because they're Jewish. However you are allowed to reject someone because they refuse to handle pork. The basic principle is – you can do something if you have a good business reason to justify it.

On to some actual cases.

One of the first to get widespread attention was the case of a British Airways stewardess, Nadia Eweida, who wanted to openly wear a crucifix. This breached a BA policy preventing staff from wearing jewellery unless if could be hidden from view.

Ms Eweida was suspended in 2006 (not solely because of the crucifix). She took BA to an employment tribunal claiming £20,000 in back pay and compensation on the grounds that the company had unlawfully discriminated against Christians. Two facts looked bad for BA. The first was that they allowed Sikhs to wear traditional iron bangles and Muslims to wear headscarves. The second was that BA changed their policy in 2007, and Ms Eweida returned to work. If it had to defend the policy as necessary, it would have trouble.

Despite this, the Employment Tribunal rejected Ms Eweida's claim, as did the Employment Appeals Tribunal and finally the Court of Appeal. The Court backed up the ET's view that “it was not a requirement of the Christian faith that a cross be worn and Mrs Eweida’s decision to wear it was a personal one.” There was no discrimination against “Christians” as a group.

A similar case came up this Easter. A council employee wanted to display a palm cross in his van, going against the council's ban on the display of personal effects. In this case, the council revised its policy and the dispute was resolved. That was probably a wise move. To start with, it avoids going to court over a minor issue. Moreover, the fact that something is legal does not make it a good idea – employers should exercise their discretion when faced by employees with firmly held values and beliefs.

The important point here is that the court has made a decision on what “Christianity” requires and what is the individual's interpretation or belief. It leaves open the question of how many people constitute a “group” or a “religion” - how large does my sect have to be before it is protected by the law? That said, perhaps I am applying a basic fallacy of jurisprudence – that because it is hard to draw a clear line, a line cannot be drawn. In fact, it is a key role of jurisprudence to draw those lines, like the line between being a child and being an adult, even where there is clearly a continuum.