‘Reasonable accommodation’ for religion or belief
The Equality and Human Rights Commission (the Commission) has recently issued a press release on its web page boldly announcing that Judges have interpreted the law too narrowly in religion or belief discrimination claims and that the Commission has applied to intervene in the Christian four cases at the European Court of Human Rights (Shirley Chaplin, Nadia Eweida, Lillian Ladele, Gary McFarlane). I find this new-found enthusiasm for religion or belief cases a significant U-turn as lets not forget that Nadia Eweida applied to the Commission (and other organisations) for funding for her Court of Appeal case and that request was declined.
The Commission has announced that ‘Our intervention in these cases would encourage judges to interpret the law more broadly and more clearly to the benefit of people who are religious and those who are not’. What that actually means is a matter of much debate. Especially as there is already a detailed 326 page EHRC produced statuory code (Employment: statutory code of practice), which includes guidance on religion. I set out extracts from that well-known code below.
Page 39 of the guidance (protected characteristics) provides as follows:
..”Christians are protected against discrimination because of their Christianity and non-Christians are protected against discrimination because they are not Christians, irrespective of any other religion or belief they may have or any lack of one”.
Meaning of belief
Belief means any religious or philosophical belief and includes a lack of belief.
‘Religious belief’ goes beyond beliefs about and adherence to a religion or its articles of faith and may vary from person to person within the same religion.
A belief which is not a religious belief may be a philosophical belief. Examples of philosophical beliefs include Humanism and Atheism.
A belief need not include faith or worship of a God or Gods, but must affect how a person lives their life or perceives the world.
For a philosophical belief to be protected under the Act:
• it must be genuinely held;
• it must be a belief and not an opinion or viewpoint based on the present state of information available;
• it must be a belief as to a weighty and substantial aspect of human life and behaviour;
• it must attain a certain level of cogency, seriousness, cohesion and importance;
• it must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.
Manifestation of religion or belief
While people have an absolute right to hold a particular religion or belief under Article 9 of the European Convention on Human Rights, manifestation of that religion or belief is a qualified right which may in certain circumstances be limited. For example, it may need to be balanced against other Convention rights such as the right to respect for private and family life
(Article 8) or the right to freedom of expression (Article 10).
Manifestations of a religion or belief could include treating certain days as days for worship or rest; following a certain dress code; following a particular diet; or carrying out or avoiding certain practices. There is not always a clear line between holding a religion or belief and the manifestation of that religion or belief. Placing limitations on a person’s right to manifest their religion or belief may amount to unlawful discrimination; this would usually amount to indirect discrimination”.
Several self proclaimed ‘persecuted Christians’ (including Shirley Chaplain) who were unsuccessful in their claims, wrote to the letters column of the Daily Telegraph in April 2010. The “big four” cases have attracted a long list of celebrity supporters from Dr. 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”.
Struggle for a Superior Right
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 in my articles for the Solicitors Journal, and my recent lecture at the University of Leicester as the struggle for a “superior right”.
The Road to Europe
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) appear 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:
- 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?
- 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”?
- 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
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.
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”.
Philip Henson, Partner and Head of Employment Law, Bargate Murray. www.bargatemurray.com
Here is a link to my columns in the Guardian – http://www.guardian.co.uk/profile/philip-henson