Freedom of religious association: the case for a principled approach to the employment equality exceptions

Cannon, Catriona Morag MacRae (2018) Freedom of religious association: the case for a principled approach to the employment equality exceptions. PhD thesis, University of Glasgow.

Abstract

This thesis addresses the question how best to interpret the exceptions to the equality in employment principle afforded in Great Britain to religious employers. There is significant ambiguity surrounding the application of these exceptions, aggravated by a paucity of case law and a divergence in understanding as to the relative significance of job function, context and organisational ethos. The exceptions lack any clear foundational principle and therefore norms to guide their interpretation are urgently needed.

The thesis begins by seeking a modern justification for safeguarding the autonomy of religious groups in an era that may be characterised by a decline in the ‘religiosity’ of the British public and an increase in the influence of human rights and equality narratives. Such a justification is located in the human dignity and autonomy rationale for religious freedom. Against this background, I argue that, by applying a particular understanding of freedom of association to their interpretation, the exceptions could helpfully be regarded as permitting discrimination to preserve an employer’s ethos for the benefit of members of a religious group. At present, the significance of employer ethos is underdeveloped in the jurisprudence on the exceptions. A purposive approach which treats the exceptions as derogations from the equality principle, justified by freedom of religious association, could encourage a deeper insight of employers’ needs and an assessment of claims on the exceptions in the context of the interests protected by rights of association. Fuller engagement with balancing religious association and equality rights could be achieved through recognising that the exceptions derive from qualified rights and through requiring employers to act proportionately. Including the concept of ‘accommodation’ in the proportionality analysis could, moreover, assist with fostering an environment in which due regard is given to the dignity interests affected by discrimination.

My argument is informed by comparative study of the equivalent law in Canada and the USA. Attention is drawn to the ambiguity in the British employment exceptions by consideration of the equivalent US and Canadian models. Whereas in these models, church and state relations and freedom of association, respectively, have been recognised as significant, the introduction of the British employment exceptions has been influenced by a patchwork of factors. My argument is further informed by a series of interviews with religious employers, which revealed mixed opinions on the exceptions and offered a valuable insight into the importance of ethos to employment practices and relationships.

• Item Type: Thesis (PhD)
• Qualification Level: Doctoral
• Keywords: Religious association, employment, employer, religion or belief, equality, exceptions, freedom of association, ethos, discrimination, Great Britain.
• Subjects: K Law > K Law (General)
• Colleges/Schools: College of Social Sciences > School of Law
• Supervisor's Name: Mair, Professor Jane and Dukes, Professor Ruth
• Date of Award: 2018
• Depositing User: Mrs Catriona Cannon
• Unique ID: glathesis:2018-30589
• Copyright: Copyright of this thesis is held by the author.
• Date Deposited: 01 Jun 2018 13:08
• Last Modified: 18 Jun 2018 15:48
• URI: https://theses.gla.ac.uk/id/eprint/30589