Discrimination on the grounds of religion or belief

Religious Discrimination in the UK

Belief in Climate Change, Anti-Fox hunting belief, belief in spiritualism and belief in the “higher purpose” of public broadcasting – where will it all end?

What do the above beliefs have in common? They have all been held by Employment Tribunal Judges to qualify for protection pursuant to the Religion or Belief regulations.

Maistry v BBC

I have received many requests for my comments on the recently released Pre Hearing Review Judgment in Maistry v BBC (ET/1313142/2010) – which have whizzed around the blogosphere like maple tree seeds in the autumn.

Maistry follows the test in Grainger

The Maistry case follows the test in Grainger plc and others v Nicholsonwhich held that a belief in man-made climate change, and the alleged resulting moral imperatives, is capable, if genuinely held, of being a philosophical belief for the purpose of the 2003 Religion and Belief Regulations. The anti fox-hunting case is Hashman v Milton Park (Dorset) Ltd (t/a Orchard Park) ET/3105555/09; which is worth reviewing if you get the chance.

Mr Justice Burton set out the limits/criteria on philosophical beliefs in Grainger (para 24): which are to be implied or introduced by reference to the jurisprudence set out in the EAT judgment:

“(i) The belief must be genuinely held.

(ii) It must be a belief and not, as in McClintock, an opinion or viewpoint based on the present state of information available.

(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.

(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.

(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others (paragraph 36 of Campbell and paragraph 23 of Williamson)”.

What about Political Beliefs?

Many legal commentators have been keen to get their teeth into a case about politics, arguing if some of the beliefs referred to above can gain protection, why are political beliefs not protected to the same extent? After all there are many political beliefs (or quasi-religious beliefs) that could no doubt tick most of the boxes in Mr Justice Burton’s test, set out above.

Consider an educational charity, with aims to increase literacy among adults, of a well publicised political persuasion, I am sure that such an aim would be compatible with human dignity.

One of the barriers is a quotation from Hansard on the then Equality Bill – cited by the eminent barrister John Bowers QC in Nicholson – (13 July 2005 p1109) where Baroness Scotland, is recorded as saying as follows, to the deletion by amendment of the word “similar”: (My highlighting)

“… It was felt that the word ‘similar’ added nothing and was, therefore, redundant. This is because the term ‘philosophical belief’ will take its meaning form the context in which it appears; that is, as part of the legislation relating to discrimination on the grounds of religion or belief.

Given that context, philosophical beliefs must therefore always be of a similar nature to religious beliefs. It will be for the courts to decide what constitutes a belief for the purposes of [the Regulations] but case law suggests that any philosophical belief must attain a certain level of cogency, seriousness, cohesion and importance, must be worthy of respect in a democratic society and must not be incompatible with human dignity. Therefore an example of a belief that might meet this description is humanism, and examples of something that might not … would be support of a political party or a belief in the supreme nature of the Jedi Knights [a reference to a Camelot-style Order in the cult film Star Wars]. I hope that this provides some assurance on the change of the definitions of ‘religion or belief’ that we have adopted, and I hope that the noble Baroness will therefore feel content to withdraw the amendment” [which indeed ensues.]”

However, para 28 of the Nicholson Judgment raises a New Hope by these comments “belief in the political philosophies of Socialism, Marxism, Communism or free-market Capitalism might qualify. There is nothing to my mind in the make-up of a philosophical belief – particularly against the background of Article 14 of the EHCR– which would disqualify a belief based on a political philosophy”.

Kelly and Others v Unison

The battle on the horizon may be for political beliefs to be recognised, although this may possibly be by the backdoor.

Kelly and Others v Unison (ET/2203855/08) held that political beliefs “which involve the objective of the creation of a legally binding structure by power of government regulating others” could not be protected by the Religion or Belief Regulations; specifically noting the EAT’s comments in Nicholson that a political belief “might” be protected, but did not consider itself bound by those judicial comments.

I understand that the decision under Kelly is going through the motions of appeal, and if it progresses to a full hearing is to my mind the case to watch; especially as the Employment Judge in Maistry commented that Kelly was an unreliable first instance decision.

Persecuted Christians?

Many of the main cases in this area to date concern situations where an employee asserts that his or her belief (or the manifestation of that belief) prevents them from carrying out certain elements of their job.

Most poignant is the conflict between the belief held my some Christians that homosexuality is sinful, and the laws aimed at preventing discrimination on the grounds of sexual orientation – which I have described as the struggle for a “superior right”, and in my guest lecture at the University of Leicester last year I explored the question of whether the Religion or Belief Regulations persecute or protect -looking at the assertions made by some Christians that they have been ‘persecuted’.

Several self-proclaimed ‘persecuted Christians’ (including Shirley Chaplain, referred to below) who were unsuccessful in their claims, wrote to the letters column of the Daily Telegraph in April 2010. In an article for The Guardian newspaper last year I started to explore what I see as a struggle for a “superior right”.  I will expand upon this after the final European decisions, referred to below, are published in due course.

Celebrity supporters

The “big four” cases (referred to below) have attracted a long list of celebrity supporters from Vince Cable to the former Archbishop of Canterbury, Lord Carey, who submitted an extensive witness statement in support of Gary McFarlane’s Court of Appeal application who argued that his case should be heard before the Lord Chief Justice and a specially constituted court of appeal of five lords justices “who have a proven sensibility to religious issues … “. Lord Carey also controversially asked that specific judges:

recuse themselves from further adjudication on such matters as they have made clear their lack of knowledge about the Christian faith”.

You will see in my other guest column in the Guardian newspaper  that Lord Carey’s intervention backfired, as it evident by the rather direct comments from Lord Justice Law’s eloquent judgment.

The importance of the Mcfarlane case was in my view over egged by Mr McFarlane’s barrister who warned of “civil unrest” over un-Christian rulings, and that “At stake is the reputation of the United Kingdom as a nation that respects religious rights.” Mr McFarlane himself proclaimed that Britain had: “embarked on a slippery slope to a secular society where there will be no religious freedom”.

 “The Battle for a superior belief” reaches the ECHR

How many of you have forgotten about the “big four” – the cases of Lillian Ladele, Gary McFarlane, Shirley Chaplin and Nadia Eweida? What do these people all have in common? The answer is that they have all recently issued applications at the European Court of Human Rights (ECHR).

The European angle has been massively overlooked almost all legal commentators, but it is the ECHR which will be the final battleground in the struggle for a superior right.

A. Nadia Eweida and Shirley Chaplin (Application nos. 48420/10 and 59842/10) seem to have had their cases joined together as one case concerns a crucifix and the other a cross.

Messes Eweida and Chaplin have complained that domestic law failed adequately to protect their right to manifest their religion, contrary to Article 9 of the Convention, taken alone or in conjunction with Article 14. The questions to the parties are set out as follows:

  1. In each case, did the restriction on visibly wearing a cross or crucifix at work amount to an interference with the applicant’s right to manifest her religion or belief, as protected by Article 9 of the Convention?
  1. In the event that there was such an interference: (a) in the first applicant’s case, was there a breach of the State’s positive obligation to protect the applicant’s rights under Article 9? (b) in the second applicant’s case, was the interference “necessary in a democratic society”?
  1. Was there a breach of Article 14 taken together with Article 9 in either case?

B: Lillian Ladele and Gary McFarlane (Application nos. 51671/10 and 36516/10) lodged their applications to the ECHR back in the summer of 2010.

Ms Ladele and Mr McFarlane complain that domestic law failed adequately to protect their right to manifest their religion, contrary to Article 9 of the Convention, taken alone and with Article 14.

Ms Ladele complains that domestic law failed to afford her an effective remedy for a violation of the Convention, contrary to Article 13.

Mr McFarlane went a little further by complaining that domestic law failed adequately to protect his right to a fair trial, contrary to Article 6 of the Convention. He also complains that domestic law failed adequately to protect his right to respect for private life, contrary to Article 8 of the Convention. The question to the parties is has there been a breach of Article 9, taken alone or in conjunction with Article 14?

Going back to the source – Framework Directive

Let us not forget that the Employment Equality (Religion or Belief) Regulations are derived from Framework Directive 2000/78/EC which set a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation with a view to putting into effect in the Member States the principle of “equal treatment” in employment and occupation.

By reference to Article 9 of the European Convention on Human Rights the limitations for what is considered to be a religion are that there must be:

  • a clear structure and
  • a belief system.

This covers the religions recognised in the UK, such as Christianity, Islam, Hinduism etc. There are also other religions which have been recognised in the European Court of Human Rights such as the Church of Scientology; and Druidism.

Why look at the ECHR anyway?

The reason that we look at the ECHR is because it is referred to in the pre amble to the Framework Directive and under section 3 of the Human Rights Act, tribunals are obliged to construe statutory language in a way which is consistent with the rights under the ECHR.

ECHR Case reviews to follow when published

I have a sneaky suspicion that the Ladele case may raise a few interesting arguments, as in the Lillian Ladele case two gay registrars complained that they felt “victimised” by Ms Ladele actions in her refusing to conduct civil partnership duties and they later claimed that this was “an act of homophobia”.  They did not complaint about her beliefs, only her refusal to do civil partnerships, and it was the refusal which was characterised as an “act of homophobia”.

What are the costs?

One has to bear in mind that litigation is expensive, especially if litigants fund cases themselves. If we take the Eweida claim for a moment Ms Eweida identified her claims (in an agreed list of issues for the Employment Tribunal) as:

  • Loss of earnings (£3,906);
  • Injury to feelings, in the band £15,000 to £25,000;
  • Aggravated damages of £50,000;
  • A 50% uplift in the award;
  • A declaration as to discrimination; and,
  • Recommendations as to BA plc’s conduct, including making a full apology to her.

A fact not mentioned in the press was that in October 2007 BA made an open offer to pay Ms Eweida £8,500 and to also pay £50,000 to UNICEF to settle her claims. I am not sure why they offered to pay the money to UNICEF, instead of to her directly, or the significance of UNICEF. But Ms Eweida rejected the offer.

Sedley LJ commented that Ms Eweida had achieved what she sought, as regards the uniform policy and “it was hard to see what more BA could have done in practice to meet the grievance[1]”. Ms Eweida failed in the Court of Appeal, and I am not sure how she would have paid for the other side’s costs.  The costs in Europe will be incredibly high, unless those costs have been unwritten by a benefactor.

For further analysis…

For a more detailed analysis of the religion or belief case-law in the UK, please have a look at my articles for the Solicitors Journal (subscription may be required), and my comments on the Amachree case.

Another case which may be of interest to you is Johns & Anor and Derby Council and Equality and Equality and Human Rights Commission, which was handed down by the High Court in April 2011.

Just for fun – Jedi Knights

In the Grainger case, Mr. Justice Burton referred to the Hansard debate on the Equality Bill, which discussed whose philosophical beliefs would be protected – in the following terms:

an example of a belief that might meet this description is humanism, and examples of something that might not … would be support of a political party or a belief in the supreme nature of the Jedi Knights”(Para 10).

You might initially find a reference to Jedi knights as somewhat odd. But you may be surprised to know that in 2001, following an internet campaign, 273,000 people in the UK recorded their religion as being “Jedi”, and it was discussed in a very high level Census content meeting.  I look forward to hearing how many Brits have registered their religion as Jedi in the most recent census! As far as I am aware a case about Jedi knights is yet to come to the Tribunal.

The case that I am looking forward to is the one which will be brought by a Quaker. The Quaker Community has a belief in silent worship, and that will be fascinating.   Another area where there may be an interesting case-law involves pharmacists. As you may know pharmacists are able to refuse to offer services where they disagree on moral or religious grounds. This has led to some members of the public being denied access to the morning after pill. I understand that this is now under review.

Philip Henson

[1] As cited by Lloyd LJ at  Para 36, Neutral Citation Number: [2009] EWCA Civ 1025 (“Costs Case”)


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