What’s an “essential obligation” of a faith? Actually, who cares?

By LSS member Sadikur Rahman *

Just when you thought we might have seen the end of religiously-inspired litigation funded by the Christian Legal Centre here comes along another case, this time of a Baptist employee of the London Borough of Merton claiming she has been discriminated against (constructively dismissed) on the basis of her religion – because she was required to work, as a children’s care worker, on a Sunday.

After the four cases of Eweida, Ladele, Chaplin and McFarlane, three of whom had their cases rejected by the European Court of Human Rights, one might have thought this type of litigation was at an end. But it seems the recent Tesco case, where the Employment Tribunal found in favour of the employees in relation to a prayer room, may have emboldened the litigant.

What’s annoying about these cases (apart from the obvious from a secular point of view) is the emphasis the tribunal and the courts put on whether a particular belief, in this case ‘Sunday rest’, is an essential obligation of the religion. If it is not then it somehow favours the employer, as it is then argued it need not be accommodated and that consequently there has been no discrimination.

But I don’t understand why the court has to get involved in a theological dispute. Why does it matter that ‘Sunday rest’ may not be a mandatory part of the Christian faith? Some other Christian denominations may say that it is absolutely fundamental and other religious groups may claim, for example, that having Friday off or praying five times a day at set times is an absolutely fundamental requirement of their religion or denomination. If something is deemed an “essential obligation”, does it mean the employer then has to accommodate it? For courts and employers to talk of an “essential obligation” of a religion is for them to wade into theology, which really is not and should not be their remit, and the consequence is this: followers of a religion are treated as a monolithic block, rather than as individuals. This is incompatible with the idea of individual freedom. Furthermore, this approach further strengthens the hand of self-appointed “leaders” who love to speak for entire faith groups.

Let’s hope the case is dismissed, given that the lower tribunal has already decided against the employee.

Another disappointing piece of news was that magistrates rejected the idea that there should be one secular oath for all. It would have been such a leap towards recognising the secular nature of the law and the courts (see this piece from my fellow LSS member Jessica Vautier about the importance of one secular oath), but perhaps it was one of those issues which just doesn’t worry magistrates that much.

In a very worrying case, a judge in the Court of Protection, which considers applications from family members and others to become deputies, or for enduring/lasting powers of attorney – i.e. the ability to make decisions on behalf of those who lack mental capacity – heavily criticised the parents of “ED”, who lacked capacity to make decisions about herself. The case concerned the bizarre wish of ED’s parents to take their daughter back into their care and for her pubic hair to be shaved on the basis it was a religious requirement. Again, evidence was taken from an expert as to whether this was a mandatory or fundamental part of Islam. Again, why does this matter? What’s the function of a legal system here? Is it to safeguard the rights of an incredibly vulnerable individual, or is it to adjudicate on the rules and regulations of Islam?

In the end the case never got to court. However, the mind boggles at the fact that such a case even got as far as the Court of Protection.

Over the years the Court of Protection has dealt with a number of cases where young people with severe disabilities lacking the capacity to make decisions for themselves about such things as marriage and sexual relations have had to be protected from their parents trying to impose their religious or cultural beliefs on them (see here and here).

There have been cases of adults, described as having the mental age of a child, being married to someone abroad, by way of a religious marriage. The courts indicated that sexual relations involving someone who lacks capacity would be a criminal offence. The judges have been very critical of the religious basis of some of the decisions made by families concerning these very vulnerable adults.

These cases are tragic and they reflect the real clash – and often downright incompatibility – between religion or “culture” on the one hand, and the law.

* Sadikur Rahman was an LSS member from May 2013 to Jul 2015

Views expressed are not necessarily those of the LSS

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