A 'Duty Of Reasonable Accommodation' Is An Unreasonable Proposition

The UK has some of the most comprehensive anti-discrimination laws in the world. Britain is rightly regarded globally as a tolerant nation; one where everyone, within reasonable limits, can enjoy freedom of religion or belief and is legally protected from discrimination on the grounds of their religion or belief...

The UK has some of the most comprehensive anti-discrimination laws in the world. Britain is rightly regarded globally as a tolerant nation; one where everyone, within reasonable limits, can enjoy freedom of religion or belief and is legally protected from discrimination on the grounds of their religion or belief.

But not everyone is happy.

This is because the law protects the right to manifest your religion only insofar as it doesn't impinge disproportionately on the rights, freedoms or dignity of others. For some, this isn't good enough.

The latest hobby-horse of campaigners determined to ensure that people of faith have an unfettered right to manifest their beliefs in the workplace is the concept of a 'duty of reasonable accommodation'.

One of the leading advocates for the introduction of a new legal duty to accommodate religion is the former Archbishop of Canterbury, Lord Carey. Carey has convinced himself that Christians in the UK are being "persecuted" and "driven underground" by "homosexual activists".

Carey was left frustrated when the UK and European Courts rejected legal challenges to anti-discrimination rules that suggested that Article 9 of the European Convention of Human Rights (freedom of thought, conscience and religion) required that religious individuals be given an exemption from compliance with anti-discrimination norms protecting people from discrimination on grounds of sexual orientation where so complying goes against their religious beliefs. These included the cases of Ladele and McFarlane, both of whom objected on religious grounds to dealing with same sex couples in the same way they would with opposite sex couples.

The National Secular Society intervened in those cases to argue that that exemptions claimed by applicants were impossible to grant without undermining anti-discrimination law altogether. We argued that such accommodations are humiliating and unacceptable.

Now, groups pushing for their religious convictions to be privileged in the workplace are seeking the introduction of a new 'duty of reasonable accommodation' for religion or belief, similar to the 'duty of reasonable adjustment' which requires employers to make workplace adjustments to mitigate any disadvantage faced by disabled people.

Groups such as the Christian Legal Centre have taken on often hopeless legal cases of Christians who have supposedly "suffered for their beliefs" in hope of creating a narrative of persecution against Christians in the UK.

Despite failure in the courts, they have had a certain degree of success in convincing some that there's a problem and 'something must be done'.

UKIP this year released a manifesto for Christians, promising to offer special protection to those who wanted to object to gay marriage or express other matters of religious conscience in the course of carrying out their jobs.

But Ukippers aren't the only ones entertaining this idea. The Equality & Human rights Commission are right now considering 'reasonable accommodation' as part of a report on the adequacy of the laws protecting religion or belief to be issued later this year.

But the current law on indirect discrimination already provides similar protection to that which a duty of reasonable accommodation would. Employers are already obliged to take religion and belief requests seriously and under a new duty employers would still be able to turn down requests if they had a sound basis for doing so, so the situation is unlikely to change for the small number of people who think their faith isn't given due prominence by their employers.

But as a new EHRC research report points out, whether or not any such duty did have any substantial impact would largely depend on where the threshold of 'reasonable' was set. But there would still need to be a balancing exercise when competing rights clash and it's hard to see how disputes would be resolved any differently to how they have been until now.

What a new legal duty would do, however, is give the perception of privileging religion or belief over other protected characteristics and mark religion or belief out as having special status - thereby raising expectations that having a strong religious belief gives you enhanced workplace rights. Such an approach is likely to lead more workplace conflict, not less.

Nobody should expect religious people to 'leave their faith at home'. Any decent employer has an interest in creating a work environment where all staff are recognised as individuals and can come to work and be themselves.

We all take our multiple identities into work - female, male, old, young, black, Asian, white, gay, straight and so on. Some of us may be religious, some of us may be parents, musicians, carers, football supporters, environmentalists, volunteers, clubbers, runners, political activists. These things all form part of our identity and can't be expected to completely separate those things from who we are at work. But when we are at work, these things take a back seat and our primary focus should be on the work we're there to do.

Civility needs to be encouraged and prejudice tackled. We all have a stake in ensuring that the religious diversity in Britain becomes a strength and not a constant source of tension. But fetishising faith and pandering to every religious demand is unlikely to lead to a more harmonious society. Patronising religious literacy programmes warning us against microwaving sausage rolls in shared kitchen spaces are unlikely to foster greater cohesion. Neither would the creation of a hierarchy of rights, with religion at the top.

Given that the Equality and Human Rights Commission's role is to promote and enforce the laws that protect everyone's right to be treated with fairness, dignity and respect, it would be highly surprising and deeply regrettable if it recommends we go down the 'duty of reasonable accommodation' route.

The law as it stands works well. Guidance from the EHRC and ACAS is at hand to help us all to negotiate the sometimes thorny issue of religion and belief in the workplace. If guidance can be made clearer, then all the better. But let's not fix what isn't broken.

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