A leap of faith?
20 July 2011
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.”
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.
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- Religious freedom doesn’t stop at the prison gate
- Adoption, same-sex couples and religion – again
- Squaring equality with religion – Aidan O’Neill QC