A leap of faith?

20 July 2011 by

In the midst of all the coverage of the phone hacking scandal and the mounting woes of News Corporation an interesting piece of human rights news from the past week got lost: the announcement by the Equality and Human Rights Commission (“EHRC”) that it is applying to intervene in four cases before the European Court of Human Rights being brought by Christians who claim their Article 9 rights are not being sufficiently protected in UK law.

The applicants are Nadia Eweida, Shirley Chaplin, Lillian Ladele and Gary McFarlane, each of whom has lost claims of workplace discrimination on the grounds of religion and belief in the UK courts over the past couple of years (see our general comment pieces here and here). The EHRC has now said that in its view “Judges have interpreted the law too narrowly in religion or belief discrimination claims” and that “the way existing human rights and equality law has been interpreted by judges is insufficient to protect freedom of religion or belief.”

The cases

Nadia Eweida is employed by British Airways as a member of their check-in staff. She wears a silver cross on a necklace. Up until 2004 her uniform included a high-necked blouse, and she wore the cross underneath it. However, in 2004 BA introduced a new uniform which had an open neck but prohibited the wearing of any visible item of adornment around the neck.

Mrs Eweida was asked to conceal or remove her necklace and did so on several occasions, but eventually she refused to continue removing her necklace and was sent home. She brought a discrimination claim, which was dismissed and subsequently lost appeals in the Employment Appeal Tribunal and Court of Appeal (although due to adverse media attention BA subsequently amended its policy so that staff were able to display a faith or charity symbol with the uniform, and Mrs Eweida returned to work).

Shirley Chaplin’s case involved very similar issues. She was a nurse of 30 years experience who was moved to a desk job because she refused to take off a crucifix necklace after the hospital asked her to remove it for health and safety reasons. Her discrimination claim was dismissed on the basis of the ruling in Eweida.

Lillian Ladele was a registrar of Births, Deaths and Marriages in Islington, who resigned after Islington Borough Council refused to accommodate her request not to have to officiate at civil partnerships. She won her discrimination claim in the employment tribunal, but Islington’s appeal to the EAT was successful and upheld by the Court of Appeal.

Finally, Gary McFarlane was a marriage and relationship counsellor for Relate who was sacked after he refused to counsel same-sex couples on sexual matters (although he was willing to counsel same-sex couples where no sexual issues arose). His discrimination claim failed in the employment tribunal, a decision which was upheld by the EAT and Court of Appeal.

The EHRC’s idea

The EHRC’s announcement stated that:

The Commission is concerned that rulings already made by UK and European courts have created a body of confusing and contradictory case law. For example, some Christians wanting to display religious symbols in the workplace have lost their legal claim so are not allowed to wear a cross, while others have been allowed to after reaching a compromise with their employer.

As a result, it is difficult for employers or service providers to know what they should be doing to protect people from religion or belief based discrimination. They may be being overly cautious in some cases and so are unnecessarily restricting people’s rights. It is also difficult for employees who have no choice but to abide by their employers decision.

The way forward which the Commission proposes is the concept of “reasonable accommodation” for employees’ beliefs (similar to the ‘reasonable adjustments’ duty employers have towards disabled people). This is an idea that was floated by Aidan O’Neill QC on this blog not so long ago. The EHRC gives an example in its press release of how this could work – “If a Jew asks not to have to work on a Saturday for religious reasons, his employer could accommodate this with minimum disruption simply by changing the rota. This would potentially be reasonable and would provide a good outcome for both employee and employer.”

Applying this approach to Mr McFarlane’s facts, to pick just one of the four cases above, this would presumably mean that Relate could be asked to accommodate his beliefs by changing its rota/allocation of clients so as to make sure Mr McFarlane did not have to do any psychosexual counselling sessions with same-sex clients.

Some angry responses and some difficult questions

The EHRC’s announcement has been welcomed by those who felt the Commission had failed to adequately support the right to religious freedom in the past, or even been anti-Christian. However, it has also provoked fierce criticism from some quarters. Some gay rights activists are concerned that this signals a shift in the Commission’s views that might negatively effect gay equality, given the particular difficulties of potential clashes between protection from discrimination on grounds of sexual orientation and protection of religious freedom (see our post on this subject here). However, the EHRC has responded by clarifying that:

We do not and will not licence discrimination against anyone and on any grounds and we will continue to take action to eliminate it. Under no circumstances does the Commission condone or permit the refusal of public services to lesbian or gay people.

The accommodation of rights is not a zero sum equation whereby one right cancels out or trumps another. We believe that if the law and practice were considered more widely, then, in many situations, there would be scope for diverse rights to be respected. We want to change the view that there needs to be an either/or situation.

The spotlight and focus is placed too frequently on conflict in place of dialogue that could help identify other acceptable workable solutions. We believe that, where possible, ways could be found within the law of promoting the resolution of disputes at an early stage, without protracted, costly, complex legal proceedings that irretrievably damage relations between the parties.

Amen to that [pun intended].

Rather more strangely, the EHRC’s announcement has been heavily criticised by secularist and humanist lobby groups like the British Humanist Association. It is difficult to understand why such groups have any objection, since any argument by the EHRC that there should be accommodation for employees’ beliefs would apply not just to Christians, but equally to people of all faiths, including humanists and atheists.

In any event, it will be interesting to see how these cases, and the EHRC’s involvement, develops in the coming months. There are some important questions that will require significant thought. Is an employee’s religious belief really comparable to disability, such that it can be analysed and approached in the same way? How could employers be helped to accommodate employees’ religious beliefs while at the same time ensuring that there is no discrimination in the provision of services to the public? Whatever the outcome, hopefully this move by the EHRC will produce more light and less heat in a particularly difficult and sensitive area of human rights and equality law.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts

 

 

8 comments


  1. The EHRC seems to me to be on dangerous ground here. Hatred masquerading as religious belief should not be legitimised. Several years ago it was still the norm to see employers in Northern Ireland discriminating against employees/potential employes on the basis of faith, its lasting legacy being mistrust in the historically Protestant RUC. There are also still Christians who cite the Bible in an attempt to legitimise their xenophobia. If a registrar requests for religious reasons not to perform inter-racial marriages, are local authorities going to be forced to permit this? If Protestants do not wish to work with Roman Catholics, will this be legalised.? The EHRC should think carefully before proceeding with cases where the veracity of the claimants assertions have been found to be false.

  2. Peter Hearty says:

    “It is difficult to understand why such groups have any objection, since any argument by the EHRC that there should be accommodation for employees’ beliefs would apply not just to Christians, but equally to people of all faiths, including humanists and atheists.”

    Who do think humanists and atheists want the right to discriminate against? What reasonable accommodations to do you think they are seeking? A day off for Richard Dawkins’ birthday perhaps?

    Reasonable accommodation of someone’s religious beliefs is fine, provided that does not mean infringing others’ rights. That the EHRC, of all people, should seek to create a right to discriminate is utterly appalling.

  3. John Dowdle says:

    As an ignostic humanist, I find the stance of the EHRC on this issue hard to comprehend. They state ‘We believe that, where possible, ways could be found within the law of promoting the resolution of disputes at an early stage, without protracted, costly, complex legal proceedings that irretrievably damage relations between the parties.’
    Seemingly, they have failed to ask the question, “Who – exactly – is promoting vexatious and unnecessary litigation on these matters?” The answer: the so-called and self-styled Christian Legal Centre. They are a new bunch on the block who are modelling themselves on the more ridiculous fringes of US-style religious activism – and the EHCR have fallen for their ridiculous claims.
    In each of the four cases outlined above, exhaustive analysis has revealed that what the litigants and their CLC representatives are actually trying to achieve is a new form of religious privilege and discrimination.
    In the cases of Chaplin and Ladelle, they were being paid with public funds to provide public services. Their insistence that they should be able to discriminate against people whose personal preferences they disagree with smacks of trying to bring back the kind of bigotry and special religious privilege that decent people battled against for centuries.
    Their cases also bring to mind the proposed reliance of the coalition government on religious porganisations to provide public services under the “Big Society” project. Will this mean that people like these mentioned will then be free to practice their own religiously motivated prejudices and exclude “unworthy” individuals from accessing the publicly-funded services? The EHRC are setting themselves off down a highly dangerous and slippery slope with their unthinking stupidity.
    Why on Earth the EHRC are taking up such selfish causes I really cannot understand. Eweida was asked to stop wearing her religious jewellry on health and safety grounds, as it could have been grabbed and used to choke or subdue her by any irate member of the public. I dare say if such an incident had occured, BA would have found itself being sued by their employees for failing to protect them !!
    McFarlane appeared on a number of television programmes while his case was before the tribunal in an obvious attempt to influence and prejudice the case against his employers, a highly respected voluntary organisation. His conduct has been disgraceful and so is the conduct of the EHRC in supporting his venal attempts to obtain justification for his religious bigotry. He ignored the sub judice rule while his case was under consideration and the EHRC now propose to reward such conduct. You could not make it up !!
    I sincerely hope the people at EHRC start to get their their collective heads straight on this issue because they are supporting completely the wrong group if they want to achieve a fair and equitable society. The people they want to represent want none of that for themselves or anyone else.
    No one is asking anyone to change their beliefs; it is their public conduct that is at issue. If they cannot discharge their duties without bringing their own bigotry or prejudice into their work place then they are not competent to hold the positions they have previously occupied.
    They should obtain alternative employment where they can follow their narrow sets of beliefs without offending or discriminating against others.

  4. M.A.F.G. says:

    My problem with secularism and humanism, atheism etc would be that none of them try to replace the values religion gave our global population over the centuries- through all the liberal pandering and attempts to create positions where wealth can be re distributed away from the church we have gone away from solidarity to a place of near anarchy- grow up everyone and see the writing on the wall.

  5. Anita Delbourgo says:

    “It is difficult to understand why [secularist and humanist lobby groups like the British Humanist Association] have any objection, since any argument by the EHRC that there should be accommodation for employees’ beliefs would apply not just to Christians, but equally to people of all faiths, including humanists and atheists.”

    It seems very easy to understand to me. Humanism and atheism are not faiths. Their adherents do not base their beliefs on books of fairy tales or commands given to them by invisible men in the sky. They base them on reason and evidence. And many of them deplore the corrosive and insidious effect of faith, and can see no reason why it should be granted some special status in law.

  6. Stuart Hartill says:

    I find the intended use here of legislation intended to help disabled people grossly offensive.
    An adult Christian chooses their faith. They can, just as easily, choose not to hold an unreasonable prejudice against gay people or to use the priviIege of a public sector job to create more difficulty for them.
    By comparison, i have never worked with a disabled person who chose to be so, and idly wonder what would happen should a public servant attempt to deny them a service on the dubious evidence of a passage in Leviticus.

    1. Tim says:

      “I find the intended use here of legislation intended to help disabled people grossly offensive.”

      I fully agree, Stuart. I find it especially offensive given that, in my opinion, the EHRC has been so woefully delinquent in using the legislation for what it was actually intended for – to uphold the human rights of disabled people.

  7. CMJB says:

    This is a worrying development: claims by Christians (the cases of Lillian Ladele and Gary McFarlane being textbook examples) tend to be in situations where they have been prevented by their employers from infringing on the human rights of others. Indeed, as the majority religion which is ingrained in UK culture and institutionalised as a state religion, the idea that Christianity is under-protected is inherently ridiculous. This amounts to little more than ECtHR protection of Christian bigotry.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: