Christians have no right to refuse to work on Sundays… oh no, wait

TelegraphOn 29 December 2012 The Daily Telegraph published an article under the headline Christians have no right to refuse to work on Sundays

This has now been shown to be nonsense. The judgment in Mba v London Borough of Merton was released yesterday and is analysed here. Mr Justice Langstaff made entirely clear that the judgment only applies to the individual worker who brought the appeal, not more generally. Here is some inaccurate reporting from David Barrett (remember this by him?), Telegraph Home Affairs correspondent:

A new ruling by a High Court judge… says that Christians have no right to decline working on Sunday as it is not a “core component” of their beliefs. The judgment – which upholds an earlier decision – means that individual Christians do not have any protection from being fired for not working on Sundays.

Compare and contrast, as this blog does, paragraph 3 of the ruling:

We should make it clear at the outset of this Judgment to anyone who expects the conclusion to amount either to a ringing endorsement of an individual’s right not to be required to work on a Sunday on the one hand, or an employer’s freedom to require it on the other, that they will both be disappointed.  No such broad general issue arises.  The questions raised must be determined in the specific circumstances of this particular case alone.

The difference between saying that a Christian did not have the right in her particular circumstances to refused work on Sundays (which the judgment says) and no Christian has the right to refuse work on a Sunday in any case is very large indeed. Anyone with a rudimentary understanding of discrimination law will have known instantly that the latter option cannot have been right.

I have it on good authority that the judgment was delivered in full, orally, in court before it was published in writing yesterday. So no excuses. If a journalist cannot be there in person to hear a judgment being given, they should either wait to read the published version or make sure they have a very accurate understanding of what it said before writing about it.

It is like a football journalist not attending a match and then reporting on it based on interviews with a few fans of one team. No surprises that the report turns out to be wrong.

Joshua Rozenberg rightly calls for the Employment Appeal Tribunal to publish controversial rulings such as this quicker as “there is little point in publishing this summary after the ruling has been widely reported and debated” (his own analysis is, as usual, spot on). I have made similar points before about the courts’ responsibility to disseminate rulings quickly and in an understandable way.

But the blame does not solely lie with the Tribunal. For whatever reason, whether  the Telegraph relied on a biased information from one side, through complete misunderstanding of the law or simple exaggeration, they got it wrong. They will have frightened believers from many faiths and unfairly increased the perception that the courts are anti-religion.

As Rozenberg points out, this was a complex judgment involving the tricky question of what constitutes a ‘core’ belief. Having read it, I think this was actually quite a narrow win for the council, and the Tribunal did get itself into a bit of a tangle over the idea of a ‘core’ belief. But the judge made clear that it any future cases would be decided on their individual facts, and that is the opposite of what was reported.

Being charitable, it could be argued (as it was in the article by someone from Christian Concern, whose own analysis was also wrong) that the ruling will in fact have a wider effect than the judge claimed it would, but the article presents that as the settled view, not just the opinion of campaigners.

Thankfully, when the European Court of Human Rights releases four important religious discrimination judgments on Tuesday, its policy means that nobody will see the judgments before they are released alongside a helpful press summary. This may help, although I doubt it will prevent poor reporting of what the judgments actually say.

Meanwhile, no correction from the Telegraph. If this mistake had been made about an individual, a libel threat would have been made and a correction (probably) printed. But because this is about a legal judgment, despite the number of people it affects, there is little recourse except a complaint to the Press Complaint Commission. Now, there’s an idea.

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24 thoughts on “Christians have no right to refuse to work on Sundays… oh no, wait

  1. I think Anya Palmer’s comment on Twitter is an interesting one for discussion: “nothing wrong with ex tempore judgments and if press misreport them press should be held to account and required to give correction” [https://twitter.com/anyapalmer/status/289460163881091072]
    The problem is, as others have identified, is that a. there’s a long wait for the judgment and – if you’re lucky – a summary. By that time, the myth in question has taken root. Additionally, as Adam points out here in the last par, there are issues around media accountability mechanisms. Contemporaneous written summaries and published judgments wouldn’t guarantee accuracy, but they would help – and would allow the public / other writers to check the facts [see approach of FullFact, for example: http://fullfact.org/about/background%5D.

    The other point that I think is really important is one of access. In Joshua Rozenberg's piece he says "Reporters are unlikely to visit the appeal tribunal's courtroom for delivery of judgments unless they have been tipped off in advance by one of the parties" [http://www.guardian.co.uk/law/2013/jan/10/employment-tribunal-christians-working-sundays?CMP=twt_gu]
    Our patchy public court reporting is partly due to this, in my view: so much mundane information is informally communicated. We would have a much fuller picture, if courts routinely made listings information more accessible and provided a little more information about the cases (eg. the topic).

  2. Completely agree with your football analogy, it’s a very good one. Perplexed by “The blame does not lie solely with the Tribunal.” Surely the blame lies with the Telegraph? They seem to have relied on one side only, a campaigning party whose views the Telegraph clearly wishes to promote. If they had checked with the other side, I cannot believe the respondent side would have agreed with the claimant side’s account of this judgment. Moreover as you say, any lawyer with a rudimentary understanding of discrimination law could have told them the claimant side’s account could not be right. So why blame the Appeal Tribunal? It’s one thing to say that judgment summaries might be helpful in future – although that’s debatable, as they have hardly prevented bad reporting of ECHR decisions. But it’s going too far in my opinion to say the Appeal Tribunal is somehow to blame for not doing so already.

    • Anya – I do think that courts generally have a responsibility to disseminate judgments and prevent misreporting (see my democratic deficit post), but that really is a quite separate issue from the Telegraph article. Perhaps I was being a little charitable.

      If you that analogy, see my spat with the Telegraph’s Christopher Booker who denied he was like a bad football journalist.

      And if you like analogies in poor legal reporting fact check articles generally, see my X-Factor one

  3. First, my thanks to Adam for alerting me to this judgment on Twitter yesterday afternoon when I was looking for something to write about for the Guardian.

    Secondly, thanks to all concerned for the thoughtful late-night tweets.

    Anya Palmer is right to say that, in a perfect world, judgments delivered when there were no reporters in court would not be reported until copies are available. But it’s not a perfect world.

    It would also be nice to think that both sides in litigation would instruct their lawyers to help reporters. But that rarely happens.

    Adam is right to say that newspapers should correct errors of this kind. But it’s not always the fault of the by-lined journalist when a story is distorted and exaggerated. That’s sometimes the fault of the newsdesk, as I know to my cost.

    If the EAT behaved in the same way as other courts of record and simply handed down copies of its judgments, it would save the judicial time taken by reading out a ruling to an almost empty courtroom. It would also ensure that inaccurate press reports and misleading claims by interested parties are corrected quickly by bloggers and tweeters.

    • “That’s sometimes the fault of the newsdesk,”
      That’s why fullfact’s approach makes sense, I think – playing the ball not the man (fullfact.org/about/background)

    • The EAT gives ex tempore judgments in cases where it feels able to do so. The judgment is recorded and a transcript is made available at a later date. The courtroom may be nearly empty, but the people who really matter are there: the parties involved. In my experience the parties invariably appreciate knowing the result immediately where the court feels able to do this. It enables them to get on with their business and their lives. Once judgment is reserved there is often a wait of several months. Of course in an ideal world that would not be so, but that is the case in my experience.

      I am puzzled by Joshua’s suggestion that other courts of record do things differently. I have had ex tempore judgment in the High Court in an appropriate case, and it was not an urgent case other than that the parties concerned quite understandably wanted to know where they stood. Even the Court of Appeal will give ex tempore judgment in an appropriate case.

      In 12 years practising employment law I am not aware of any other case where the delivery of an ex tempore judgment has given rise to difficulty in terms of a case being misreported. This problem does however arise in the reporting of human rights cases by certain newspapers even where summaries have been issued such as ECHR judgments. To suggest that in all but urgent cases the parties should henceforth have to wait a month or more for written judgment because in one case one party with a campaigning agenda and one newspaper sharing that agenda have misrepresented the judgment in that case seems a little extreme to me.

  4. Judith – I have to disagree on that one. This blog’s policy is always to state the author of the article. Here is my reasoning:

    1. The journalist’s name is on the article. Any member of the public would assume that they wrote the article, at least including all of the main points made in it. As in any professional context, by putting your name to a piece of work you accept responsibility for anything which goes wrong (the flip side is you get credit for what you get right).

    2. To use an example from my professional context, a junior barrister will sometimes draft most if not all of a document which a senior barrister puts their name to. If something in it is wrong, the senior lawyer can’t then claim that in fact they didn’t write that bit. They either put their name to it or not.

    3. If it is the case that news desks manipulate and/or change the meaning of articles without the input of journalists (and I have no doubt that this happens), then that is a problem not just for the newspaper but also the journalists themselves. By putting them at the centre of the debate – it is after all their name on the byeline – this should encourage exposure and (being optimistic) systemic change.

    4. This strategy works to an extent on this blog as since we have been naming (and shaming) journalists, they journalists have often responded, creating a healthy debate. See e.g.

    http://ukhumanrightsblog.com/2012/06/17/immigration-judges-named-and-shamed-by-sunday-telegraph/ (involving the same journalist)

    and

    http://ukhumanrightsblog.com/2011/05/22/should-journalists-attend-court-part-2/

    A similar issue arose with this Daily Mail article (http://ukhumanrightsblog.com/2012/12/31/avalanche-daily-mail-on-new-year-dishonour-list-for-dodgy-prisoner-human-rights-article/) – the body text below about the third para is fine, a fairly interesting article about prisoner legal aid. But the title and the first few lines completely changed the message to something which was utter nonsense. I imagine may not have been Jack Doyle’s fault, but his name is on the article so he must bear responsibility.

    Would be interested in your thoughts.

    • I agree. Name and shame. You can’t hide behind the shield of freedom of the press and not expect to be rumbled when you misreport (for whatever reason) a story that is of high public interest. It doesn’t matter whether the journalist or the editor is at fault. Let the journalist defend the story with his/her byline.

    • I wasn’t suggesting not citing a byline, just making a general point that the attention should be on the issue and the overall treatment (including headline etc.), which should also apply to legal debate and criticism. Interesting practical points – especially about accountability strategies – there is plenty of discussion around ideals for media accountability and transparency, but how is it achieved in practical terms? What makes a publication pay attention and correct the record in an effective way?

      • Gotcha – agree about your general point.

        I’m not an expert on media accountability but I do think that the age of social media has removed many of the old barriers to holding newspapers to account purely through embarrassment. Many times it doesn’t work but I have found that sometimes a number of articles can reach a critical mass or the particular journalist can have a professional/ethical epiphany.

  5. Anya naturally gives priority to the interests of her clients. My interests are wider.

    On the narrow point, it is standard practice for the High Court, Court of Appeal (civil division) and Supreme Court to reserve judgment, prepare a written ruling, circulate it in draft to counsel and then deliver it in writing. Extempore judgments are the exception and are reserved for urgent cases. Even if a judgment is extempore, a note of the operative paragraphs may be provided to the press on the day. Sentencing remarks in high-profile criminal trials are also provided in writing immediately after judgment. The EAT is clearly an exception to this practice.

    But there is a broader point here, which perhaps I need to spell out. In a case such as this, the EAT president must have prepared pretty detailed notes of what he planned to say in his judgment. No doubt he did not trouble to copy out all the citations. But putting the judgment in a form in which it could be handed down would not require very much more work. He might need somebody to type up the judgment for him. But that would be cheaper than a shorthand-writer. And there is no reason why it should delay delivery of the judgment by as much as a month.

    • ” Extempore judgments are the exception and are reserved for urgent cases” – Joshua, this is mostly but not wholly correct. Extemps are still reasonably common in the CA, Civil Division – about a third of the time (not so at the end of term when there is always a deluge of handed downs on the last day or two as of course you would already know) – and by no means just when the hearing is urgent either. They are often given in short, uncomplicated cases where the judges are in agreement and there is no need to prolong anything. At High Court level they are common in the Administrative Court – at least 50% off the top of my head – though very rare in the Commercial, TCC or Chancery Divisions. For the most part in the senior courts they are used when there is no wider interest in the case and hence the misreporting issue doesn’t really arise. To the extent that they are reported it will usually be by what Lord Neuberger calls the Scholarly Law Reporters – for All England, the ICLR and Lawtel (declaring my interest in the first of those) as opposed to the general press. Extemps are the norm in the CA, Criminal Division but unknown at Supreme Court level.

      • James, Your experience is broader than mine and I stand corrected on the detail. I don’t often cover the sort of cases in which there is no wider interest. And I should have said I was talking about cases of substance rather than interlocutory rulings and the like.

        • Cheers Joshua. I think that they will become less common as younger judges are used to writing things themselves on their laptops as opposed to dictating everything or writing by longhand. In some cases I think where a judge has formidable grasp of the subject matter, they tend to knock out an extemp at the end of even substantive and highly contested hearings – Sullivan LJ used to do this as a matter of routine in planning cases (I believe he also had something of a dislike of computers) and Jacob LJ when in the Chancery Division. Or Lord Brown when he was in the CA – I well recall his amusing interjections where he would isolate the sole worthwhile point on the appeal, challenge counsel to address it and then give a short extemp immediately afterwards. Laws LJ is another who can deliver an extemp at a furious pace after a contested hearing.

  6. This is not the first time this sort of newspaper behaviour has been observed – and it will almost certainly not be the last. Why do they do it? As Helena Kennedy identified at the Bill of Rights Commission, there is a deliberate anti-Europe sentiment among some in this country, which newspapers such as the Mail and Telegraph welcome and foster among their readership. This is why they will continue mis-reporting human rights judgements.
    Until such time as the Zeitgeist changes in Britain to one in which most people are relaxed about EU and ECHR membetrship, this shoddy sort of journalism is bound to continue.
    Most journalists are hacks for hire: they write whatever their bosses want them to write so they may not have the degree of autonomy accorded to them by Adam Wagner. Some lawyers have similar relationships with their clients, do they not? Roll on Tuesday !!!!!!!

  7. On the narrow point, it is simply not true that ex tempore judgments are exceptional or reserved for urgent cases. Joshua gives no authority for this proposition. I have never heard such a test applied and I do not believe it exists. It is not in the Civil Procedure Rules or Practice Directions. So far as I am aware the giving of ex tempore judgments in an appropriate case is completely unexceptional and it is always a matter for the discretion of the judge hearing the case whether to do so.

    It is patronising to suggest that because I point out the interests of the parties (which Joshua ignores) I have no interest in the broader issues. Of course I recognise there is an interest in cases being correctly reported, but in my comments above I question (a) how often this problem arises (b) where there has been misreporting, whether that can properly be ascribed to the giving of an ex tempore judgment as opposed to, say, bad journalism, and (c) whether the issuing of judgment summaries would prevent misreporting, given that this has not been the case with Mail and Telegraph reporting of ECHR cases. Joshua does not address these points, he simply gives further details of his own proposal.

    The present case is clearly one of bad reporting by a newspaper with an obvious agenda. It would be nice to see Joshua recognise that and come up with proposals for how the press might be more accountable rather than simply blame the legal system.

    • I was not seeking to be patronising and I apologise if my remarks appeared as such.

      I did not say that judges were required by law, or the rules, or by practice directions, to give extempore judgments in urgent cases and reserve judgment in less urgent cases. Of course it is a matter for the court’s discretion. My “authority” is not a decided case; it is simply some 30 years’ experience of reporting leading or newsworthy cases in the higher courts.

      You ask how the press might be made more accountable. If I were to tell you that a certain Lord Justice of Appeal has spent the past year or so considering just that, you’d again accuse me of being patronising. So I’ll just remind you that I was the first to draw attention, in the Guardian, to inaccuracies in the Sunday Telegraph article.

      You ask specifically how issuing judgment summaries (or, indeed, judgments themselves) would prevent misreporting. I would have thought this was obvious from what has already been said. Since it is not, I shall spell it out. If a newspaper reports a case badly and there is no authoritative source for what the court said, nobody can put the record straight. If there is a judgment or even a summary available, everybody can see whether or not the newspaper has got it right. People who think the report was wrong can say so, as you did. Word soon gets around. This doesn’t stop individual reporters from getting it wrong. But it does make it more likely that the reporting of the case, as a whole, will be accurate.

      What you don’t seem to accept is that the courts can play a part in ensuring that their rulings are reported accurately. Fortunately, that proposition is fully accepted by most members of the senior judiciary. That is why they support the Judicial Communications Office in the valuable work it does. I was simply pointing out that the Employment Appeal Tribunal does not seem to have caught up with accepted practice in other courts of record.

      • I’m afraid you misrepresent what I said. I did not ask how written summaries would prevent misreporting; I queried whether they would in fact do so, “given that this has not been the case with Mail and Telegraph reporting of ECHR cases”. You ignore that point. The ECHR does issue judgment summaries and yet still certain sections of the press misreport them, as documented on this blog and others (eg http://darrennewman.wordpress.com/author/daznewman/). I don’t see why, in a case where the judge feels able to give judgment immediately, the parties should have to wait for judgment (in all but the most urgent cases) in order that the court can issue judgment summaries in which, in the vast majority of cases, the press will have no interest, and in those few cases where the press does have an interest, experience suggests the press will continue to misreport regardless of being given a judgment summary.

        You say the advantage of press summaries is they make it obvious when the newspaper has got it wrong. But the judgment in Mba v Merton issued last week also makes it clear the Telegraph got it wrong, and this has now been widely pointed out, including by you, and yet the Telegraph shows no sign of amending its story. It is shameless, it seems, and as Adam says there is little recourse other than a complaint to the Press Complaints Commission. I personally have already taken that route in relation to one ECHR story that was misreported in the Mail, so I know from personal experience that it’s a huge waste of time. That’s why although we can agree there is an interest in the press reporting legal stories accurately, I believe the starting point is not that the court system needs to change but that the press needs to be more accountable.

        • Thanks for responding. I don’t think we are very far apart and I have no wish to prolong this correspondence.

          We both agree that newspaper reporters should report legal stories accurately. I believe they should be helped to do so. You believe they should be held to account if they don’t.

          On the latter point, I agree with you. I hope you will now agree with me that, whenever possible, the press should be helped by being provided with written copies of reserved judgments at time of delivery. That is all I am calling on the EAT to do.

        • I have done a short blog on this point at http://timesandotherthings.blogspot.co.uk/2013/01/mba-v-merton-london-borough-council.html?spref=tw as well as a couple of comments above. I would simply repeat what I said before, namely that in urgent cases, or where the judge or tribunal has a resoundingly clear view on the outcome but wishes to spend longer putting down the reasoning, the common practice is for the judge to announce the result with reasons to follow. But (and I don’t think anyone disagrees) that where there is an extempore judgment (for which there is still some justification) the onus is on the press to exercise caution in reporting it.

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  9. There is, I believe, an old saying: “Justice delayed is justice denied”. As Anya has pointed out, most ordinary people want legal matters resolved as speedily as possible and ex tempore judgments are helpful in this regard. I assume this practice arose out of a largely pre-literate era and has continued for the convenience of speed and certainty for all parties involved.
    I think everyone concedes that there is either deliberate mis-reporting by some journalists and/or that their copy is distorted by their employers. What to do about it?
    Can I suggest that a small informal group of legal practitioners (and, possibly, others) be established in order to scrutinise the most egregious examples of legal mis-reporting in the course of a year, with a view to “awarding” the offending journalists and/or newspapers or other media a “Legal Blunder of the Year” trophy?
    This might then encourage newspapers and other media to get their legal reports right.

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