3rd October 2014
Philip Fletcher
Chairman
Mission and Public Affairs Council
NatCen Social Research
35 Northampton Square
London
EC1V 0AX
Equality and Human Rights Commission
Call for evidence on the effectiveness of legislation designed to protect
people who hold a religion or belief or do not hold a religion or belief.
Response by the Mission and Public Affairs Division of the
Archbishops’ Council of the Church of England
The Mission and Public Affairs Division welcomes the opportunity to respond to
this consultation paper, in the pages that follow.
Philip Fletcher
Chairman
Mission and Public Affairs Council
The Mission & Public Affairs Council of the Church of England is the body responsible
for overseeing research and comment on social and political issues on behalf of the
Church. The Council comprises a representative group of bishops, clergy and lay people
with interest and expertise in the relevant areas, and reports to the General Synod through
the Archbishops’ Council.
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Email: martin.kettle@churchofengland.org Website: http://www.cofe.anglican.org DX: 148403 Westminster 5
The Archbishops’ Council of the Church of England is a registered charity
Response to the Equality and Human Rights Commission’s Call for
Evidence on ‘Religion or Belief in the Workplace’.
Executive Summary
Three principles shape our approach to this group of issues: that every person is of equal
worth before God; that respect for equality is entirely consistent with freedom of religion; and
that in a mature and open society, recourse to law should be a last resort in such matters.
Religious freedom is a fundamental element of a free society. It includes:

Freedom of expression: although the letter of the law may guard such freedom, it has
been evident in a number of cases that, in workplaces, the expression of religiousbased views has been sometimes unfairly been regarded as unacceptable.

Freedom of conscience: provided that an organisation can meet its corporate
obligations, the values of diversity and inclusion make it reasonable to accommodate
certain opt-outs for employees on the basis of genuine conviction. Similarly, it is
necessary for religious organisations to retain the option of restricting provision of
services etc. in the conditions set out in the Equality Act 2010.

Freedom to manifest religious beliefs at work: the wearing of faith symbols, for
example, is well established in our culture, and should only be restricted for
compelling reasons.
In respect of other issues within the scope of the investigation, such as harassment and
victimisation, time off for religious reasons, and exemptions from equality law, we believe
that current legal provision is adequate. We do not believe a case exists for any measures
which might further encroach on people’s freedom to articulate and live out their religious
beliefs in a courteous and respectful way.
Finally, we append a note on how this debate is conditioned, within the Church of England,
by a traditional understanding of the relation between authority and individual conscience.
Introduction
We appreciate the opportunity to respond to this consultation on ‘Religion or Belief in the
Workplace’. We note that comments are requested on a range of topics1. While many
individual church members, we hope, will make their own responses in relation to these
specific issues to the consultation on the basis of their lived experience, we provide here
some consideration both of the overall issues of the role of law in underpinning fair and equal
treatment in the workplace of those who hold to a particular religion or belief, and of some of
the particular practical issues raised.
1. Law, faith and equality: three general principles
a. The Christian understanding of the common good is premised on the equal worth of
every person.
The pursuit of the common good lies at the heart of the church’s engagement with society.
The meaning of ‘common’ in this context needs to be clear. For Christians, it is based on the
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Time off work for religion or belief reasons; dress codes and wearing of religious symbols; opting-out of work
duties or conscientious objection; freedom of expression; restrictions on, or refusal of, a service; offering of an
inappropriate service; harassment on grounds of religion or belief; victimisation on grounds of religion or belief;
a hostile or unwelcoming environment; definition of ‘belief’; procurement or funding issues; exemptions from
equality law; and any other issues.
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dignity of each person created in the image of God. No characteristic, protected or otherwise,
marks out any person as being one iota more or less a bearer of that image. The image of
God in every person constitutes not merely a formal or notional equality under positive law,
but a substantive equal dignity and worth of every person. This is a view that some other
religious traditions share with Christianity and, whilst religious traditions will understand the
principles to stem from a belief in God, the practical consequences of these beliefs may be
shared by many non-religious belief systems.
b. A culture of equality should be wholly compatible with the public expression of
religion.
We live is a highly diverse society and wish to see that diversity celebrated, rather than seen
as a problem. Equality is not conformity or uniformity. There is evidence, from the media
and from popular discourse in general (including among some religious groups), of a
creeping assumption that public expression of religion in any form is inherently problematic
and at risk of breaching equality law. This may be partly engendered by the way in which
equality law has been publicized2. Where popular perceptions exaggerate or misinterpret
equality law, it is not an adequate riposte to say merely that no law forbids the public
expression of religion or religious beliefs.
c. In a society where diversity and inclusion are valued, recourse to law should be a last
resort in resolving the issues raised by differences, including those of religion and
belief.
In establishing a legislative framework to ensure consistent fulfilment of the duty to give
equal respect to every person, a balance has to be struck between clarity and simplicity.
Since the passage into law of the Equality Act 2010, a number of cases have come to the
courts which should, in the eyes of many, have been resolved informally and not become a
matter of litigation. Whether people can wear a cross at work or pray with someone (with the
latter’s consent) should not be matters about which courts and tribunals have to rule. The law
needs to be as clear as possible, so that its requirements may be recognised and implemented
as straightforwardly as possible, but without the imposition of undue burdens of compliance.
2. Religious freedom
We re-affirm the fundamental importance of religious freedom, in accordance with Article 9
of the European Convention on Human Rights (taken with Article 14), as has been stated in
an earlier submission on behalf of the Archbishops’ Council :
We see the preservation of religious freedom – which includes the freedom to
manifest religious affiliation and live according to those convictions – as
fundamental to a free society. We acknowledge that there are instances where
careful balances have had – and will continue to have – to be struck, whether in
the drafting of legislation or in its interpretation and application, between
potentially competing rights. But any legislation which might require people to
choose between obeying their religious convictions and obeying the law is at best
questionable and certainly requires very substantial justification.3
This belief in religious freedom is not distinct from the fundamental theological convictions
which are at the heart of the Church of England’s identity. We see the revelation and saving
acts of God in Jesus Christ as universal in scope. The Gospels consistently show Jesus as
For example, guidelines have sometimes been drafted, even by the EHRC, presenting as ‘case studies’
hypothetical scenarios in which the expression of religion is cast as inherently problematic.
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Response to an EHRC consultation in 2011.
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implacably opposed to the exclusion or stigmatising of any person or group as well as
committed to the proclamation of the good news to people of every race and creed. As the
church developed in its earliest years, it faced many attempts to narrow this universal scope,
and to lay down explicit or implicit barriers against particular subsets of humanity. It rejected
all such attempts. It also resisted, peacefully but persistently, any attempts to restrain its
members from manifesting and commending their faith in the public square. The churches
have not always held to these principles, but we consider them foundational to the Christian
religion.
At a time when religious freedom is being threatened and constrained, violently in a number
of cases, in several parts of the world, it is essential that the priority of liberty to express and
manifest faith or belief, including the right to change religious or other conviction, is
emphasised in law and practice.
3. Freedom of expression
Article 10 of ECHR, reflecting international instruments, established the right of freedom of
expression, within such limits as a democratic society may prescribe for certain stated
reasons. It is important that this freedom should be affirmed, and should be given its due
weight where it appears to conflict with another right or duty. Lords Spiritual, for example,
have been among those to raise concerns when new laws (such as those concerning antisocial behaviour) seem to place unreasonable barriers in the way of public expression of
faith. The right to freedom of expression is an important tradition to be valued and preserved,
given that adequate measures are in place against abusive behaviour and against incitement to
hatred or violence.
Any law which limits freedom of expression must in fact be very cautiously framed, since its
effect in practice can be disproportionate. The example of Adrian Smith is instructive. In
February 2011 he was a manager with Trafford Housing Trust. On a social media page not
accessible to the public, he posted outside work time a view that same sex weddings in
church would be ‘equality too far’. He was demoted from his management position, his salary
was cut by 40%, and a final written warning was issued. The Trust had consulted their
employment solicitors. An internal appeal had upheld the decision. So not just managers in a
reputable Trust, but legal professionals as well, interpreted the law in such a way as to
generate and uphold a decision which many have regarded as manifestly unfair, and which
was overturned in the High Court in due course. Other instances have shown how a climate
can develop in a workplace, independent of the letter of the law, where the expression of
some religiously-based beliefs is unreasonably regarded as unacceptable.
In the ethos of the Church of England, we seek to find ways to ensure that disagreement, even
sharp disagreement, can be held within a wider and relatively secure framework of trust and
acceptance. We will defend the right of our fellow-citizens to express views on the basis of
their religion or belief, even where we may find little common ground with them.
4. Freedom of conscience
a. Opting out.
Whilst matters of conscience may emerge in numerous contexts, currently the most
conspicuous example under this heading is the wish of some Christians to opt out of work
activities which they see as an implied endorsement of same-sex marriage, civil partnership
or same-sex relationships more generally. The roles of civil registrar and of relationship
counsellor are examples where individual Christians have felt obliged to opt out of some part
of what would be their normal working role.
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On these issues, we believe that there can often be scope for corporate bodies to
accommodate employees who have genuine reservations about a particular aspect of their
job. If a service is offered publicly, it is right that everyone should have equal access to it,
and the institution is under an obligation to ensure equal access. It does not follow from that,
that individual employees should be prevented from opting out of offering the service to a
particular person or group of people on grounds of conscientiously held belief where the
opting out will not impede the delivery of the service to the public. The principles of
diversity and social inclusion imply that an institution should open its recruitment to as wide
a range of people as possible, provided that it remains possible for it to fulfil its whole range
of responsibilities and legitimate aims. Provided the institution’s service to its clients is not
compromised, requiring an individual in effect to choose between retaining their job and
compromising their religious conviction is disproportionate. In many – possibly most – cases,
however, there is likely to be scope for carefully negotiated compromise rather than a standoff between entrenched positions.
b. Restrictions on or refusal of a service
It is fair that those who seek funding from public sources for the provision of a service should
be subject to those reasonable conditions which the funding agency places on all those who
enter into a contractual relationship with it. If a religious organisation is a commercial
organisation, or if it is providing a service on behalf of the public authority or under contract
with it, the application of the provision of the Equality Act is relatively straightforward.
However, even where a religious organisation is providing a service to the public (rather than
just to its own members) it is entitled to restrict the provision of goods, facilities or services
in the course of activities it undertakes and in doing so does not contravene the provision of
services provisions of the Equality Act, provided that the restriction is imposed for reasons
identified in Schedule 23, paragraph 2 of the Equality Act 2010(i.e. because of the purpose of
the organisation or to avoid causing offence on religious grounds in the case of a restriction
relating to religion or belief, or to comply with doctrine or to avoid conflict with strongly
held religious convictions of a significant number of the religion’s followers in the case of a
restriction relating to sexual orientation). It is important that this position is maintained in
respect of religious organisations.
5. Manifesting religious beliefs at work
The European Convention provides that ‘Freedom to manifest one's religion or beliefs shall
be subject only to such limitations as are prescribed by law and are necessary in a democratic
society in the interests of public safety, for the protection of public order, health or morals, or
the protection of the rights and freedoms of others.’
Some recent cases in the European Court have been helpful in clarifying some of these issues
– although, as we have said above, it would be better if such matters could be resolved
outside the courts. Nevertheless, a number of people in the churches have felt recently that
the uncertainties which derive from the level of generality which we have cited as a strength
of the law, have also led to something of a chilling effect, as described by the then Chair of
our Mission and Public Affairs Council:
The law does not prevent Christians from expressing their views at work. Rightly,
the law expects everyone, including those of no faith, to act with due respect for
all people’s rights and duties in the field of religion or belief. However, some
employers have interpreted the law in ways which seem to assume that reasonable
and respectful expressions of faith are themselves offensive. This is a cause of
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great concern and … we shall continue to monitor emerging case law on how far
employers can lawfully limit the ability of Christians to manifest their faith in the
workplace, and in our encounters with Government ministers, notably on the Big
Society, we shall continue to stress the need to address the ‘chill factor’, which
leads employers and others to assume that the law is more restrictive than it is4.
The wearing of religious symbols such as a cross is a long-accepted part of British life, and
recent cases have mapped out a reasonable course for resolving any conflict between the wish
to manifest one’s faith on the one hand, and any countervailing considerations such as health,
safety or efficiency on the other.
6. Other issues
a. Harassment and victimisation
The current legislative framework in principle provides adequate safeguards against
harassment and victimisation. The prevention of a hostile or unwelcoming environment is
less easy to secure through legislation, although the existing law includes redress against the
creation of a hostile work environment through sustained patterns of unwanted behaviour. It
has become well accepted in many work environments that harassment or victimisation on
the basis of certain protected characteristics is unacceptable: it is important that religion and
belief are no less protected in this context than other characteristics.
b. Time off work for religion or belief reasons
The chief concern among many Christians, in relation to time off, is the observance of
Sunday and the key holy days of Good Friday, Easter Day and Christmas Day. Time off
work on an occasional basis, for example to observe a major date in the Church’s year, has
not proved a major issue for church members. The current law on Sunday working is
reasonably clear: a person cannot be made to work on Sundays unless they and their
employer agree this in writing, and a person working in a shop or betting shop can legally opt
out of Sunday working if they give due notice.
The strength of the tradition of Sunday as a day of rest, rooted at the heart of the biblical
tradition, together with the empirical evidence of the benefits of the seven-day week
including such a day of rest held in common by as many members of the community as
possible, provide a firm basis for resisting a further dilution of the legal safeguards which
restrict certain forms of economic activity on Sundays, and on major Christian festivals.
Even in the absence of clear and dogmatic rules in the Christian churches on what must not
be done on Sundays5 and other major festivals, the structures of British society should remain
such as to make clear an underlying presumption that Sunday is special. The relevance of
this to equality issues is that it creates a context in which time off for religious observance is
seen as a normal part of communal life, rather than an individual predilection of certain
religious people.
In practice, it has become common for staff, especially in the service sector, to be pressured
into accepting Sunday working. Common practices include the requirement that an applicant
for a job indicates whether or not they are prepared to work on Sundays, with the implication,
whether justified or not, that to answer ‘No’ will result in rejection for the job. Existing
employees have sometimes reported considerable pressure from management to work on
4
Philip Giddings, then Chair of MPAC, in response to a question at the General Synod of the Church of
England, 8th July 2011
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Though see Canon B 6 of the Canons of the Church of England which provides that Sunday is to be “kept …
by attendance at divine service, by deeds of charity, and by abstention from all unnecessary labour and
business”.
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Sundays and those who stand by their legal right not to work on Sundays have found
themselves disadvantaged in other ways. Recent attempts by the Government to liberalise the
Sunday Trading laws have sent a signal that the protection of Sunday as a common day of
rest for most of the community is under threat.
The danger is that the legal protections which employees should enjoy for purposes of
religious observance are eroded in practice. The EHRC has worked hard to draw people’s
attention to the ways that equality legislation affects them and there is scope for more to be
done to make people more aware of their rights in terms of Sunday working and provision for
religious observance.
We recognise that people of other faiths wish to be able to worship on other days of the week
than Sunday and/or mark other special days that are significant for their faith tradition. We do
not believe that this is something than can easily be regulated by law by creating rights to
time off. But it is good practice for employers to allow a degree of flexibility over working
arrangements where that is compatible with the nature of the business activity.
c. Exemptions from equality law
We believe that the exceptions for religious or belief organisations in current law provide a
reasonably satisfactory basis for fair outcomes, and we do not at present wish to press for
change to the law in this respect. It remains crucial that churches and other faith groups
retain the freedom to order their internal affairs in a way that is consistent with their own
doctrines and religious convictions. In this context, we do not see any advantage in the
proposed Equal Treatment Directive which has been under discussion in the Council of the
EU since 2008: in its present form, this is at risk of allowing a strong concept of equality to
outweigh the priorities of, for example, freedom of religious expression and practice, by such
measures as the reversal of the burden of proof.
A note on authority and conscience in the Church.
It would be simpler, in some respects, if each faith could be assumed to have a set of laws
which could be compared directly with the law of the land, and any clashes resolved.
However, it is in our view helpful that recent judgments in the European Court of Human
Rights have removed from the legislative framework the question whether a particular
practice is mandatory. The reason why this is a good thing is not quite as simple as has
recently been articulated by Baroness Hale of Richmond:
It may be that one of the reasons why the Church of England is feeling so
beleaguered is that it is such a very undemanding Church. It has no dietary laws,
no dress codes for men or women, and very little that its members can say is
actually required of them by way of observance. So it is much harder for them to
make demands equivalent to those of other religions, for example, to be allowed
to slaughter meat in a particular way, to wear a turban instead of a crash helmet
when riding a motor cycle, or a face veil when giving evidence in court, or even to
take Sunday as a day of rest. Indeed, in Mba v London Borough of Merton [2013]
EWCA Civ 1562, an employment tribunal held that even Sunday observance was
not a “core component” of the Christian faith.6
Rather, the mainstream tradition of the Church of England attaches importance to the subtle
‘Freedom of Religion and Belief’, The Annual Human Rights Lecture for the Law Society of Ireland, given by
Baroness Hale of Richmond on 30th June 2014.
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interplay between scripture, tradition and the exercise of reason. In the interpretation of this
interplay, there is a further balancing between discernment by the individual conscience on
the one hand – whose importance has been emphasised above - and by the community of
faith (at different levels) on the other. We accept that the requirements of the faith which we
hold do not, at many points where faith touches the dilemmas of potentially conflicting rights
and equalities, lend themselves easily to insertion in Acts of Parliament.
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