UK equality laws, democracy and our largely tolerant multi-cultural society are precious and it is time we stopped paying attention to headlines and focused a bit more on legal accuracy. Without a clear understanding of where we are, it is impossible to make rational decisions on how to move forward at home and at work.
Let’s start by getting some facts straight.
- Where our equality laws came from: UK equality legislation pre-dated our accession to the European Community and, by and large, equality law has developed in the UK in advance of EU equality laws. UK equality laws are not an invention of the EU: they were implemented by successive democratically elected UK governments (both from the right and the left). It is, in reality, rare for the desirability of equality to be challenged by ordinary people.
- Scope: Along with other EU member states, we currently have UK laws protecting individuals against discrimination on a range of grounds, including for example sex, pregnancy, sexual orientation, race, religion and belief, age and disability. These laws are best known for their application to employment but they can, in some circumstances, apply elsewhere, for example to access to goods and services and to schools.
- Individuality: The UK has a long (and in recent years proud) history of tolerating individuality. For example, typically, religious tolerance has been taken to mean we should be free to manifest our religion at home, at work and at school, (subject to some caveats relating to impact on the rights of others). It is not unusual for London workplaces to acknowledge (if not actually celebrate) Easter, Diwali, Chanukah and Eid, and to happily share related sweet treats with each other.
- Other places are different: This approach to equality is not adopted consistently through the Western World. In some places it is thought better to suppress manifestations of religion equally. Examples include sending ‘happy holiday’ greetings at Christmas in the US or French attitudes to separation of church and state (la laïcité). History, culture and the current factual context can all play a part. For example, parents’ freedom to educate their children in accordance with their religious preferences means very different things in the UK and in the Republic of Ireland (where, for historical reasons, the vast majority of state primary schools are controlled by the Catholic Church).
- Equality and Diversity: Despite recent debate over the pros and cons of promoting ‘diversity’, UK laws focus on ‘equality’. Diversity and equality should not be conflated. By equality we intend that people be treated equally. Quotas and ‘positive’ discrimination are, with some very narrow exceptions, prohibited by most of our equality legislation. It is simply not true that our equality laws promote any particular minority – and worth bearing in mind that in some way all UK residents have characteristics protected by equality laws.
- The impact of treating people equally is not always equal: Blanket bans on manifestations of religion naturally have greater impact on some people than others. Consider the impact of requiring all a bank’s cashiers to stand whilst serving customers. Although applied ‘equally’ this requirement would probably have far greater impact on disabled or pregnant employees, and without justification satisfying strict legal criteria and related to the circumstances of the particular business, would probably amount to unlawful ‘indirect’ discrimination.
- Banning veils: First, it is important to be clear that the European Court has not endorsed blanket banning of Islamic veils in the workplace. In March the European Court issued a press release (the Achbita and Bougnaoui cases*) that has been widely misreported. What the Court actually said was that banning workplace veils could be discrimination if not justified, ie it might be possible to ban veils in the workplace in some contexts. There is nothing new here: the vast majority of UK employment lawyers, Courts and Tribunals would probably have come to exactly the same conclusion. What is interesting is that the press release highlighted the European Court’s view that national courts should make the relevant decisions, ie taking account of the local context and specific facts, including the cultural context. The decision does not relate to the UK at all and our equality culture as highlighted above is very different from that of the countries concerned in the Achbita and Boughnaui cases (France and Belgium).
- UK case law: Issues relating to manifestation of religion at work are not new to the UK. For example, legislation was passed over 20 years ago to help UK Sikhs who want to wear turbans on construction sites. In more recent years there have been cases related to a plethora of issues from the wearing of Islamic veils or crosses and Christian concerns about supporting same sex marriage to clashes between the timing of religious observance and employers’ needs.
So, where does this leave us? Well it leaves us in the same place as we have been for years. In the UK people are generally free to wear what they like with some limited exceptions (eg related to national security, health & safety, the rights of others, and, to a limited extent, employer policy); we are free to send our children to religious schools if we want to (and not to if we don’t); and we are generally free to say what we like, subject to some very limited exceptions, eg inciting racial hatred can be a criminal offence and defamation can have legal consequence.
Whilst the UK remains part of the EU, we are also obliged to comply with European law. Although Europe did not impose equality laws on us, we are now technically restricted in our ability to do some things differently. Practically, too, equality laws are generally popular laws, and it seems unlikely that our current Government would seek to reverse progress that has already been made.
That said, we are living in times where surprising things happen surprisingly often and it is important that the voices of ordinary people are heard. The status quo is not usually exciting news but it is still important. One of the most unattractive features of the last year has been the increasing air time given to extreme views in newspapers and in workplaces. Ten years ago would compulsory inspection of children for FGM by schools have been reported as a serious proposal? Does the suggestion seem more normal if it applies only to other people’s children? Or children of a particular race or religion? Ten years ago would we have even considered telling women what they should wear on their heads when they go shopping?
Time to think harder about whether we want to live and work in places that suppress diversity (however 'equally') - and what we can do individually and collectively to make sure we end up in the right place.
*Press release on the Judgments in Cases C-157/15 Achbita, Centrum voor Gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions, and C-188/15 Bougnaoui and Association de défense des droits de l’homme (ADDH) v Micropole Univers