By Lauren Godfrey 1COR
Two different bodies in the last week have reflected on issues concerning the fundamental imbalance in the employment relationship. This provides an opportunity to consider what, if any, role human rights principles have in redressing that imbalance:
(1) The Article 11 Case of RMT -v- UK (Application No 31045/10): The European Court Human Rights (Fourth Section sitting as a Chamber) found that Article 11 (the right to freedom of association) was not infringed by the restrictions imposed on trade unions calling on their members to take strike action by the UK Government as part of the statutory scheme which provides for lawful strikes; that is strikes that attract statutory immunity from common law liability. According to the ECtHR, these restrictions on lawful striking were within the wide margin of appreciation enjoyed by the UK Government. The RMT’s case was that the restrictions impermissibly restricted their ability to protect and promote the interests of their members working in industries and for employers with complex corporate structures.
(2) Zero Hour Contracts Consultation: The Government’s consultation on zero hours contract which appears to have been somewhat upstaged by the Parliament’s Scottish Affairs Committee publishing an interim report on zero-hours contracts which while recommending some changes, ultimately concludes that ‘in the majority of cases’ zero-hours contracts should not be used at all. The interim report contends that the lack of job security for workers engaged on zero hours contracts places a practical impediment to the majority of the workers surveyed from enforcing other basic rights including the minimum wage, part-time worker protections, and protection for those with caring responsibilities: see summary here. Continue reading
Dumfries and Galloway -v- North  UKSC 45 - Read judgment
Yesterday’s much heralded equal pay ‘victory’ in the Supreme Court (see BBC Report) undoubtedly will be good news for the specific female claimants in the case who seek to vindicate their European Union rights to equal pay.
The female claimants do so by comparing their pay with male colleagues working in entirely distinct parts of the same local authority (being Dumfries and Galloway Council) but arguably on common terms and conditions of employment (often referred to as the ‘same employment’ test).
However, in legal terms, arguably the unanimous Judgment delivered by Lady Hale in the Supreme Court is not quite so revolutionary. Many practitioners, outside Scotland at least, had anticipated its outcome.
REDFEARN v. THE UNITED KINGDOM – 47335/06 – HEJUD  ECHR 1878 – read judgment / press release
The BNP has been a relentless opponent of Human Rights Act and its manifesto for the 2010 General Election made no less than three separate declarations of its intention to scrap the Act and abrogate the European Convention of Human Rights which it described charmingly as being, “exploited to abuse Britain’s hospitality by the world’s scroungers.”
This has not stopped the European Court of Human Rights (ECtHR) riding to the rescue of one of their erstwhile councilors in Redfearn v United Kingdom
The ECtHR, by a majority of four to three (with British judge Sir Nicolas Bratza being one of the dissenters), decided that, despite the margin of appreciation, the positive obligation placed on the UK by Article 11 (right to free assembly and association) meant that a person dismissed on account of his political beliefs or affiliations should be able to claim unfair dismissal despite not having the qualifying one year’s service then applicable.
JEG v The Trustees of the Portsmouth Roman Catholic Diocesan  EWCA Civ 938
Elizabeth Anne-Gumbel QCand Justin Levinson of One Crown Office Row acted for the claimant in this case. They did not write this post.
The Court of Appeal has now confirmed that the church can be held liable for the negligent acts of a priest it has appointed. Permission to appeal to the Supreme Court has been refused.
This appeal was another preliminary stage in the main action between the claimant’s action for damages following the alleged sexual abuse and assault by a parish priest (now deceased), and the trustees of the diocesan where he served. The Court of Appeal has now confirmed that the defendants can held to account, even though there was no formal employment relationship between Father Baldwin and the Diocesan - see Rachit Buch’s post for an excellent analysis of the issues and summary of the facts. Continue reading
McFarlane v Relate Avon Ltd  EWCA Civ B1 (29 April 2010) – Read judgment
Gary McFarlane, a Christian relationship counsellor, has lost his application to appeal his Employment Appeal Tribunal decision in the High Court. Mr McFarlane was sacked by a marriage guidance service after he said he would not promote gay sex. He claimed he had been discriminated against on religious grounds.
The case caused a furore as the former Archbishop of Canterbury Lord Carey submitted a witness statement stating that cases such of these should be heard by judges with special religious sensitivity. Lord Justice Laws in the High Court has now rubbished that suggestion. He said:
18. Lord Carey’s observations are misplaced. The judges have never, so far as I know, sought to equate the condemnation by some Christians of homosexuality on religious grounds with homophobia, or to regard that position as “disreputable”. Nor have they likened Christians to bigots. They administer the law in accordance with the judicial oath: without fear or favour, affection or ill-will.
19. It is possible that Lord Carey’s mistaken suggestions arise from a misunderstanding on his part as to the meaning attributed by the law to the idea of discrimination. In cases of indirect discrimination (such as are provided for by paragraph 3(1)(b) of the 2003 Regulations, which is centre stage in the present case) the law forbids discriminatory conduct not by reference to the actor’s motives, but by reference to the outcome of his or her acts or omissions. Acts or omissions may obviously have discriminatory effects – outcomes – as between one group or class of persons and another, whether their motivation is for good or ill; and in various contexts the law allows indirect discrimination where (in a carefully controlled legislative setting) it can be shown to have justifiable effects. Accordingly the proposition that if conduct is accepted as discriminatory it thereby falls to be condemned as disreputable or bigoted is a non sequitur. But it is the premise of Lord Carey’s position.
- More posts on religious discrimination
- Judgment in Mcfarlane v Relate Avon Ltd.
- Update 30/4/10 – Lord Carey responds: legal battle against believers is “”a deeply unedifying collision of human rights””
The Equality Act 2010 received royal assent on 8 April 2010. The Act aims to consolidate what until now has been a messy jigsaw of 116 pieces of legislation, and further harmonise UK law with the four key EU Equal Treatment Directives.
The Bill passed despite the unusual opposition from the Pope, who complained in February that it would run contrary to “natural law”. His comments were most likely directed at the effect of the new legislation on Catholic adoption agencies, making it more difficult for them to turn down gay couples. We previously posted on this topic in relation to the Catholic Care case, which resulted in a victory for a catholic adoption agency.
The Equality and Human Rights Commission, which has welcomed the passing of the Bill, points out some of the key features:
- Making the law easier to understand and implement by simplifying 116 pieces of equality legislation into a single Act for individuals, public authorities and private organisations.
- Giving people the right not to be treated less favourably by public authorities because of their age, religion or belief, sexual orientation, or transgender status; as well as their disability, gender, or race which were already covered.
- Extending anti-age discrimination rules to include goods, facilities and services, thereby stopping people being unfairly refused insurance or medical treatments based on what age they are, for example.
The key sections of the Act will begin to come into force in October 2010 and will continue to do so until 2012.