Category: Article 9 | Thought / Conscience / Religion
29 April 2010 by Adam Wagner
McFarlane v Relate Avon Ltd [2010] 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.
Read more:
- 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””
7 April 2010 by Adam Wagner
Shirley Chaplin, an NHS nurse who was moved to a desk job for wearing a crucifix at work, has lost her employment discrimination claim against the NHS.
The Employment Tribunal judgment is not available at present, but The Times reports:
John Hollow, the tribunal chairman, ruled that the Royal Devon and Exeter Hospital had acted reasonably in trying to reach a compromise. It had argued that the objection to the crucifix, which Mrs Chaplin, from Kenn, near Exeter, had worn for 30 years, was based on health and safety concerns about patients grabbing the necklace, not religion.
According to the Christian Legal Centre (CLC), which strongly supports Ms. Chaplin’s case, the Tribunal held that Mrs Chaplin had not been indirectly discriminated against by the application of the uniform policy because she could not prove she was part of a group affected by the policy.
The Tribunal applied the reasoning in the previous case of Nadia Eweida v British Airways [2009] EWCA Civ 1025. Ms Ewieda’s claim also involved her being banned from wearing a Christian cross at work, in that case at British Airways. The Court of Appeal made clear that in an indirect discrimination cases brought under Reg. 3(1) of the Employment Equality (Religion or Belief) Regulations 2003, it was necessary to show that there had to be evidence of a “group disadvantage”, i.e. that more than one person had been affected by the policy. Ms Eweida could not establish a ‘group’ and as such her case failed.
The CLC claim that “the Tribunal has now decided that a group must be more than two people as well—leaving the law in a ludicrous level of uncertainty”. Ms Chaplin has already said she plans to appeal the decision.
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19 March 2010 by Adam Wagner
Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales (Equality and Human Rights Commission intervening) [2010] EWHC 520 (Ch)
The High Court have found that a Roman Catholic adoption agency (Catholic Care) could rely on regulation 18 of the Equality Act (Sexual Orientation) Regulations 2007 in refusing same-sex couples adoption services.
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24 February 2010 by Adam Wagner
The Queen on the Application of Ghai v Newcastle City Council & Others [2009]EWHC 978 (Admin)
Read the 1COR case comment
A devout Hindu man has won the right to have his body to cremated in accordance with his religious beliefs as a Hindu.
In the previous hearing, the Judge, Cranston J, proceeded on the assumption that the cremation desired by Mr Ghai would be in the open air, i.e. not within any structure. It was accepted by Mr Ghai that such an open air cremation would have been precluded by the legislation relating to cremation, at least if interpreted without reference to section 3 of the Human Rights Act 1998. Mr Ghai’s primary case before the Judge was that, if this was the right interpretation of the legislation, there would be an impermissible interference with his right to manifest his religion or belief under Article 9 of the European Convention. Although the Judge accepted that Article 9 was engaged, he went on to hold that the interference was justified . Mr Ghai also relied on Article 8 and Article 14 of the Convention, but the Judge held that they were not engaged.
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McFarlane v Relate Avon Ltd [2010] EWCA Civ B1 (29 April 2010) – Read judgment 
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