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.”
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.
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- Religious freedom doesn’t stop at the prison gate
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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.
“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.
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.
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.
“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.
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.
“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.
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.