Freedom of Religious Association: Towards a Purposive Interpretation of the Employment Equality Exceptions

The exceptions to the principle of equality in employment for employers in Britain with a religious or belief ethos (or who employ personnel for the purposes of organised religion) are ambiguous in scope and lack any clear foundational principle to guide judicial interpretation. In view of the consequent risk of inconsistency in decision-making, this article addresses the question of how best to understand and interpret the exceptions. While the exceptions should be regarded as limited derogations from the equality principle, it is nonetheless important that recognition is afforded to their underlying rationale which, I argue, derives from the fundamental human rights of religious association. Though the concept of associative rights and related ideas have not featured heavily in appellate judgments on the exceptions to date, I argue that such a purposive approach to interpretation of the exceptions could assist the judiciary to reach fair, balanced and consistent decisions in this highly contested area of the law by inviting consideration of the relationships among an employer’s ethos, its employees and the religious group it serves, and by encouraging engagement with the discriminatory impacts which an exercise of these rights may entail.