Facts

In R v Michaela Community Schools Trust, the secular secondary school enacted a ‘prayer ritual policy’ (PRP) which banned all ritual prayer, although there is no evidence that non-Muslim pupils wanted to pray. The PRP was enacted as an interim measure in the interest of maintaining a ‘peaceful, integrated community’, following concerns of practicing Muslim students intimidating other Muslim students. Muslims are obliged to pray five times a day with allotted windows of time that each prayer must be completed within. The claimant student accepted that this would not always be possible during the school day; however, there is a period during the autumn and winter where the allotted time for Dhuhr (the midday prayer) falls within lunchtime. She requested that she be able to use a period of this ‘free time’ to pray instead of having to make up those prayers at home, an Islamic legal relief known as Qada. This refers to ‘making up’ a missed prayer where it was unable to be performed for ‘good reason’, such as being physically incapable of performing the prayer e.g. where a surgeon cannot forego an operation. It should not be viewed as an alternative to deliberately missed prayers [p44].

Ground 2

The claim was brought on four grounds, which are aptly summarised here; Ground 2, referring to indirect discrimination, is the focus of this piece. The claimant argued that the PRP indirectly discriminated against Muslims under s85(2)(d) and/or (f) Equality Act 2010, referring to not affording pupils access to a benefit, facility or service and/or subjecting pupils to ‘any other detriment’, respectively. The school argued that she was not subject to any ‘detriment’ because Islam allows her to make up for the missed prayers through Qada. It is the conceptualisation of ‘detriment’ in this instance that should be read more expansively to include disadvantage in the realm of spirituality. The availability of Qada to the claimant is contestable depending on circumstances; nonetheless, the harm that missing a prayer does to the claimant’s spirituality should be factored into any analysis of ‘detriment.’

Spiritual Equality

A conceptual framework of ‘spiritual equality’ has regard for how different religions interact with the law to create unique experiences of disadvantage that may not reflect the Christian-centric paradigm of religion that dominates our understanding of religious freedom. A richer picture of ‘detriment’ to spirituality, under s85(2)(f) Equality Act 2010, can be mapped through two steps in this case.

First, the school’s argument that Qada is an available alternative to the claimant, indicating no detriment, is contestable when adopting a spiritual equality lens. The expert witness made an analogy between students in lessons to the example of the surgeon performing an operation, meaning that Qada is available to students in this scenario [p45]. However, the claimant’s argument refers to narrower circumstances as she contends she should be able to pray during a period of her lunch break which she views as ‘free time’. In this instance, she does not view Qada as a viable alternative since she, in theory, has more autonomy to pray without disrupting school activities. Qada therefore cannot (and should not) be used as a tool by the school to conveniently circumvent students’ religious duties, nor is it the place of the High Court to determine that the ban constitutes ‘good reason’ for students to use Qada, since this enters the realm of religious determination.

Second, in light of the opinion that Qada is not available to her in this instance, preventing prayer brings about harm to her spirituality. She appropriately argues that being forced to perform Qada brings about significant detriment [p40]. A spiritual equality perspective widens ‘detriment’ to encompass harm to spirituality. The gravity of the sin of missing a prayer where one is able to perform it, weighs heavy on Muslims. Qada is understood as an exceptional measure. However, the PRP forces her to seek forgiveness through Qada ‘every day, all of the year’ [p40], pushing Muslim students into breaking their religious obligations. This is particularly egregious during ‘free time’ where they feasibly have the autonomy to pray. The PRP unduly removes this ability from them.

In sum, a spiritual equality analysis alters a finding of ‘detriment’ to encompass harm done to spirituality. In this way, more weight should be afforded to the full scope of disadvantage that interfering measures impose when courts weigh balancing interests against each other.

IX was a carer working for Wabe, who runs child-care centres across Germany. Wabe adopted a policy of neutrality and temporarily suspended IX for persistently refusing to remove her hijab. The referring court wanted to know if the policy of neutrality constitutes indirect discrimination on the grounds of religion or on the grounds of gender and whether this could be justified by a policy of neutrality, established to account for customer’s wishes?

MJ worked as a customer-facing cashier and did not comply with her employer’s requests to remove her hijab at work, as per an internal rule asking employees not to wear ‘large-sized signs of political, philosophical or religious beliefs.’ The referring court sought clarity on whether established indirect treatment on the ground of religion could be justified if it prohibited all signs of political, philosophical, or religious beliefs, as opposed to just large-sized signs?

Decision

First, the CJEU upheld its decision in Achbita whereby an internal rule banning all signs of belief cannot be considered direct discrimination when uniformly applied. The Court expanded slightly on its acceptance of neutrality as a legitimate aim which justifies difference of treatment, by necessitating that the employer demonstrates a genuine need for such a policy. Demonstrating this need is contextual but the CJEU indicated that the parent’s wishes in this case could constitute a genuine need.

Second, the CJEU, contrary to AG Rantos’ opinion, ruled that prohibiting only large-sized signs of belief is liable to be considered direct discrimination and unjustifiable. On the question of justifying potential indirect discrimination, again the Court mentioned the genuine need of the employer for such a policy whereby the need to avoid social conflicts between employees could satisfy this need.

Comments

The additional requirement of needing employers to demonstrate a genuine need for neutrality could be the CJEU’s attempt to respond to criticisms that its proportionality assessment was cursory. In effect this expansion does little to protect against non-discrimination since the Court readily accepted the undertakings’ initial reasons for adopting the policies. Taking a light-touch approach, the Court outlined that the genuine need test is contextual, comparing the customers in Bougnaoui to the parents in IX who have rights under the Charter, to ensure their children’s education in line with their own beliefs. However, this right seems to be extended to include the right to not have your child supervised by someone who manifests their belief outwardly. The CJEU mentioned the discriminatory demands of the customers in Bougnaoui but did not interrogate any potential prejudicial source of the parent’s wishes which trigger the need for the neutrality policy in IX. Similarly, the need to avoid social conflict between employees in MH Müller is uncritically accepted as fulfilling the genuine need test, without analysis of why the hijab is presumed to cause conflict. Such decontextualization is worrying given the disproportionate effect of Islamophobia on Muslim women including discrimination in employment.

Ultimately, the CJEU takes one step forward and two steps back. By shutting down a distinction between large-sized and smaller symbols, it prevented the creation of different categories of religious symbols deserving of different legal protections. But the additional requirement of employers demonstrating genuine need for neutrality policies fails as an extra layer of protection based on the court’s light-touch review of how the need is satisfied.

Once enacted, the success of the law will depend on its ability to address and overcome the barriers to reporting economic abuse. In its current form, the Bill relies on individuals to report abuse. From an intersectional perspective, the self-reporting requirements of the Bill fell short of providing support to women from minority and immigrant communities on several bases.

First, some cultural norms among South Asian communities place a stigma on seeking help outside of the family, preferring to deal with private issues within the family.  This makes it difficult to report abuse and access official support. Women who migrate to the UK after getting married are sometimes cut-off from their support networks in their home countries and there is evidence that they are vulnerable to economic and other forms of exploitation and abuse. This isolation is compounded by the fact that women from certain ethnic minority groups are often not taken seriously by official services. This response is  informed by harmful stereotypes and assumptions that draw on notions of acceptance of abuse within a specific community—assuming ‘it’s a cultural thing’ or that ‘they’re used to it.’

Accordingly, there is a risk that taking measures to ameliorate economic abuse may be met with increased physical or verbal violence. Attempting to leave economic abuse via divorce can lead to harassment, ostracization, loss of social standing and honour-based violence against women. The government needs to consider the risk of honour-based and other forms of violence that some women are faced with, their social isolation, the prejudices and stereotypes they face, and how these act as a barrier to reporting their abuse.

Second, the Bill did not provide for any language support or mandatory translating services for women. A study on the experiences of South Asian women in the UK found a reluctance to report for fear that their English skills were not good enough to explain their situation.

Third,  the Bill did not provide any safeguards against the threat of deportation. Women who are not British citizens or who do not have a legal right to reside often fear that contact with officials will result in deportation. In its current form, the Bill fails to protect this class of women, entrenching their vulnerability and emboldening the perpetrators of abuse.

Fourth, while the Bill provided a new support system for those with no recourse to public funds, which allows eligible individuals to access three months’ worth of public funds, whilst their application is being considered, this only applies to those who are eligible for indefinite leave to remain and have submitted their application.

To redress these barriers, the following changes should be made when the Bill is re-introduced. First, access to public funds should be extended to all victim-survivors of domestic abuse, regardless of their immigration status. The time period for this should also be extended. Second, the Bill should provide adequate funding for refuge spaces for victims of domestic abuse who are in the process of applying for the Destitute Domestic Violence Concession. Third, the Bill should include reassurances as to the security of immigration status. Furthermore, to increase access to justice and state resources and support, the Bill should provide for compulsory translators and exempt domestic abuse victim-survivors from the legal aid means test. Another important intervention is community engagement and the creation of strong bonds between frontline domestic abuse professionals and migrant communities. Within the Bill itself, more could be done to remove structural barriers that prevent women from seeking official help and redress.