Also published on Halsbury's Law Exchange
Introduction
On Monday 17 December 2012, the Qatar Law Forum held a Symposium on the Rule of Law at the Mansion House, hosted by the Lord Mayor of London, Alderman Roger Gifford. The occasion was the visit to the United Kingdom by His Excellency Dr Ali Bin Fetais Al Marri, the Attorney General of Qatar and the UN Special Advocate on Stolen Asset Recovery.
The theme of the symposium was the rule of law and countering corruption in international business. The event was opened by speeches from the Lord Mayor, Dr Al Marri and his English counterpart Dominic Grieve QC. The Lord Mayor emphasised the close links between London and Qatar and the importance of trade to both countries, which has to take place within a sound legal framework.
Following opening speeches by the Lord Mayor, Dr Al Marri and Dominic Grieve, a panel discussion was held to consider three points:
1. Anti-Corruption – its place in the rule of law
2. International co-operation between anti-corruption agencies
3. The broader agenda – law, the rule of law, and why it is important.
Panel
The panel comprised:
• Michael Napier QC (chair)
• Sir Henry Brooke (President, the Slynn Foundation)
• Professor Jeffrey Jowell KCMG, QC (Director, the Bingham Centre on the Rule of Law)
• Professor Khawar Qureshi QC (McNair Chambers, Doha)
• Baroness Scotland QC (immediate past Attorney-General)
• Robin Knowles CBE, QC (Chairman, Qatar Law Forum Organising Committee)
Opening speeches
The Lord Mayor opened proceedings by emphasising the close links between London and Qatar. He also stressed the importance for business transactions of a proper legal framework governing business transactions, and the threat that corruption poses.
Dr Al Marri stated that there were two primary reasons behind the Arab Spring: (i) the absence of the rule of law and the ability of the state to provide justice; and (ii) corruption. When combined those two factors produced chaos. Although “freedom” was often cited in connection with the uprisings, it was not the real reason; the primary reason was the absence of justice.
He stressed that the United Kingdom should be proud of its judicial system, and that it had been prepared to lose the Second World War rather than abandon justice. The achievement of the legal system in the United Kingdom was an achievement for humanity, not just the United Kingdom.
Dr Al Marri then discussed the development of judicial independence and the preservation of justice in the United Kingdom. He identified some of the key steps which had eliminated corruption in the judicial sphere, such as the fixing of judicial salaries in 1803, and also more modern measures such as the Bribery Act 2010.
Dominic Grieve QC AG reiterated the Government’s commitment to combatting corruption and referred to the relationship between the United Kingdom and Qatar.
Panel Discussion
Following the introductory speeches the panel discussion began.
Baroness Scotland QC stated that a global consensus on the definition of corruption was nearing. The consequences of not addressing corruption were apparent to all, but there was no need to put up with it. She also referred to issues of asset recovery in the context of the Arab Spring, and the different systems of law involved.
Khawar Qureshi QC stated that there was a need for consistency in legislation, not exceptions such as immunity. The 2010 Act showed that bribery would not be tolerated.
Sir Henry Brooke stated that his concern was judicial corruption. The Rule of Law could not exist where it was present. It was rife in some countries, and tended to take two forms. The first form was straightforward bribery. The second was more insidious and took the form of veiled threats against judges that they should award cases to a certain party or things would be the worse for them or their families.
Sir Jeffrey Jowell QC emphasised two things: (i) legal certainty; and (ii) equality. These were fundamental values common to all nations. Both were distorted and abused by corruption.
Robin Knowles QC said that corruption damages all parts of the rule of law and combatting corruption accordingly entails all aspects of the rule of law. Both the causes and consequences of corruption have to be addressed.
The discussion was then opened to the floor. Lucy Scott-Moncrieff, President of the Law Society, stated that justice was needed at the lowest levels. It was not simply in the judicial process but in all of society that justice was needed. Khawar Qureshi QC gave an example of where a taxi driver had his driving licence confiscated without justification and told that he would have to pay a sum of money for its return – that sort of corruption throughout all society was inimical to the rule of law.
The panel were asked to identify the single most important challenge for developing countries with regard to combatting corruption. Baroness Scotland QC stated that all in society had to be engaged in partnership and co-ordination against corruption; it was not simply a matter for elites. Sir Jeffrey Jowell QC mentioned two different aspects: first, prosecuting offences of corruption; and secondly, standards in public life – the notion of “jobs for the boys” has to be eliminated.
The issue was then raised of international co-operation. Baroness Scotland QC said that we have to accept that the world has changed. It used to be the case that international law could be ignored, but no longer. The question arose as to co-operation between prosecutions in G8 countries. Khawar Qureshi QC agreed about co-operation and pointed to the Abacha prosecution arising out of Nigeria as a great success story.
Sir Henry Brooke stated that corruption could not be changed by a single organisation or agency; relevant national and international institutions had to have a collaborative approach. He mentioned the role of the judicial college; training courses by the Bingham Centre on the Rule of Law; and the Slynn Foundation.
Sir Jeffrey Jowell QC stated that there needed to be a situation where there was no place to hide for corruption.
The point was made that the Qatar Law Forum draws together people from across the globe, allowing discussion of the value of shared definitions. Dr Al Marri was correct that the English legal system was not simply the achievement and property of the English, but of the entire world. The same should be true for all anti-corruption agencies.
The question was raised as to whether a definition was needed of corruption and of the relevant agencies. Baroness Scotland QC said that there was a need to better understand other jurisdictions. She mentioned Switzerland and its procedures for freezing assets.
It was observed that corruption was based on secrecy, and the question was raised as to whether it is time to decrease the right to confidentiality over assets, tax arrangements and the like, in the interests of transparency. Sir Jeffrey Jowell QC noted that that was a very difficult issue, requiring further consideration. Sir Henry Brooke noted that he had an instinctive horror at organs of the state probing around the affairs of private individuals. Robin Knowles QC added that transparency was never enough, nor adding regulations; it was a matter of ethics.
Michael Todd QC observed from the floor that when one looks at anti-corruption agencies it was a matter of basic education, and installing the view that corruption was not the way to do business.
Dominic Grieve QC AG noted the difficulty of challenging in some countries the system of day to day business where a payment to a third party was the established way of operating, and deeply ingrained as such. It would not be considered corruption. The question was therefore how to change such a culture.
Baroness Scotland QC said that it was a question of culture. There was broader agreement on corruption than there had been ten years ago.
Robin Knowles QC said there was a need for a definition of corruption. It need not be just one country’s view, and we might not necessarily reach a definition at the first attempt.
The third question was then raised as to why the rule of law was important. Khawar Qureshi QC referred to the history of the rule of law and how all religious texts emphasised the need for law.
Sir Jeffrey Jowell QC stated that the rule of law was not a vague concept. It involved settled law, enforced by fair and independent courts, equality of enforcement and respect for human dignity. It was a key element in investment, economic security and growth.
Sir Henry Brooke questioned how the poor had access to justice. Baroness Scotland QC agreed, and stated that the rule of law was not just for the strong.
Robin Knowles QC said that the rule of law was not just the responsibility of political leaders, judges and lawyers. Rather, it was the responsibility of all – politicians, teachers, civil servants, journalists and so on.
Michael Napier QC concluded proceedings by referring to Lord Phillips’ statement that corruption was a disease infecting many. The depressing fact was that there were countries not concerned with corruption, and where there remained a need to pay officials. The Arab Spring was in part the result of corruption. The Bribery Act showed that corruption abroad would no longer be tolerated. Thus, new global regulations were being introduced. Qatar was a leader in the fight against corruption, and this short symposium reflected the desire to fight it.
Friday, 25 January 2013
Friday, 18 January 2013
A royal flush - the Tranby Croft scandal
I have been published in the New Law Journal on the Tranby Croft Affair - "A royal flush", vol 163, 18 January 2013, p 46
Wednesday, 16 January 2013
Eweida and others v United Kingdom Part III: some comments
Here is the final part of my article on Strasbourg's four cases this week.
General observations
What does it mean to have a right to one’s religion? Generally speaking, two things. First, the state should not favour one religion over another. (We in Britain muddle along with an established church, it is true, which may be somewhat intellectually indefensible but falls into the category of Mostly Harmless, and I will leave it aside for now.) Otherwise everyone should be able to worship what they like and where they like within the law, and the law should treat all religions the same, meaning one group should not get state funding or otherwise preferential treatment over others.
Secondly, no-one should be discriminated against because of their religion. In the sphere of criminal law, the state should not impose harsher or lighter sentences because a convicted person happens to belong to a religion. In the employment context, no one should be sacked or disciplined in employment because they believe in X, Y, Z or nothing. It would be outrageous, say, for a bank to state that it will only hire Sikhs and not Hindus or anyone else, and quite properly the latter would have a legal remedy provided by the state via the courts.
We can all agree, I suspect, on that sort of direct discrimination as being plainly wrong. Beyond that agreement is a bit more tricky. My own general approach is set out in Chapter 27 of my book. Let us now turn to the actual cases, which I have separated into two categories called the symbols cases and the refusal cases respectively.
The symbols cases
Normally it is up to the parties to an employment contract to agree on the terms and then either abide by them or end the contract and pay the other side compensation if the contract is not ended in accordance with its terms. The state’s interest is confined to ensuring that there is no direct discrimination of the sort mentioned above, so that the employer cannot refuse to hire a person because of their gender or race or religion or whatever – and equally so that the employee cannot say (for example) that she will not work in an office with people of a different ethnicity or refuse to serve certain customers for reasons that amount to unlawful discrimination. (The state might also be concerned with health and safety requirements, or a minimum wage, but again those need not concern us here.)
So far as uniform policies or dress codes are concerned, most employers will usually have a policy in place at the start. As long as the existence of the policy is made known to any employee before she signs her contract, and she has a chance to review the terms of the policy and negotiate any exception, it is difficult to see why she should subsequently demand the right to breach the uniform policy in order to display a symbol on religious or cultural or any other ground. The answer is for her to negotiate the agreement from the start. Obviously any sensible employer should not object to inoffensive or unobtrusive items like turbans or crosses, though of course that would not be guaranteed.
This is the approach which Strasbourg has now discarded, having stated (at para [83]):
“Given the importance in a democratic society of freedom of religion, the Court considers that, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate.”
The problem is that weighing an overall balance may be an interesting and challenging task for academic lawyers, but in many cases it will place a considerable burden on both employers and employees to determine whether any claimed interference with a right is proportionate. Sometimes the answer might be obvious, but there will no doubt be instances where well-meaning employers and employees will face uncertainty – as reflected in the differing outcomes in Eweida and Chaplin’s cases. It is not just employers who suffer when there is uncertainty in the law, but also employees, who would like to know where they stand. And if a dispute results in litigation then both will suffer the attendant cost and stress, whoever wins.
In Chaplin’s case the court decided, quite sensibly, that it could not second-guess the hospital authorities on what was safe and what was not. But what made the court think that it could second-guess BA’s corporate image? Something tells me the judges in Strasbourg have probably not spent very much time running a large multinational company or working in its PR department.
One of the reasons BA came unstuck in Eweida’s case was because it had permitted turbans and head scarfs, so there was a point of consistency between religions. But would it really have been better if it had said no turbans or headscarfs? The only difference with the cross was that it was disputed whether Christianity actually requires it. But neither employers nor courts are in any position to judge what a religion entails on the true construction of its scriptures. We might all agree that it would be reasonable for BA employees to be allowed to wear turbans if they wish, but that is an easy case, and as the old saying goes it is hard cases that make bad law (such as someone demanding to wear an offensive symbol or some bizarre non-religious one).
Maybe, therefore, it comes down to not much more than demanding a liberal dress code, or at the very least a consistent one in which either all symbols are banned or none.
Reverting back to classical contract law once again, it might also be said that Ms Eweida’s breach was so small and insignificant that it would not have caused BA any obvious loss (would a brace of passengers suddenly refused to fly because of the shock of seeing a cross?) and would not have justified terminating the contract. I would have thought it a de minimus breach. Even on a classical contract analysis, however, it would be necessary for the parties to judge what is and what is not a serious breach and that would not be so different from the test about whether a uniform policy complies with art 9.
So it seems there is no easy answer – one way or another we have to end up with someone picking and choosing what religious symbols are reasonable to allow and what are not. Given the inherent problems with such an exercise, there is all the more reason for the parties agreeing terms before one begins, and the courts requiring very good reasons indeed for either party wanting to change them afterwards. In other words, just as the Court allows or should allow a wide margin of appreciation for states, so the states in turn should allow citizens a wide margin of appreciation and presume as a starting point at least that parties should be bound by the terms of contracts they voluntarily conclude. This of course is not all one-sided: as well as protecting employers from employees suddenly making claims years after starting work, it also protects employees from having radical changes of policy foistered on them.
The refusal cases
The refusal cases can be answered more easily. In this context the clash has often been framed as between the right of a person to practice their beliefs, and the right of another person not to be discriminated against in the provision of public services.
It is no surprise that the UK courts and Strasbourg favoured the latter. Imagine for a moment that the employees had proclaimed that their religion prohibited them dealing with Jews or Muslims, or otherwise being seen as “condoning” them. Or imagine if a judge suddenly decided that his religion dictated that a woman’s evidence was of less importance than that of a man. They would have been given a short answer. So would a restaurant which said it was run by the former Dutch Reformed Church and wanted to exclude ethnic minorities as inferior people.
Moreover, the same answer would have been given if the employees had wanted to discriminate in the same way on non-religious grounds.
In Mrs Ladele’s case, there was an argument which appealed to the dissenting judges, namely that she had accepted her job before civil partnerships existed, so the employer should not have been entitled to rewrite her contract by forcing her to preside over them.
There is some cogency to this argument. Assume, however, that someone had been a registrar in the Southern States before the civil rights reforms, when mixed-race marriages were disallowed. Then assume they had run the same argument after the reforms. I doubt any sympathy would lie with someone who refused to perform mixed-race ceremonies due to ‘conscience’.
Epilogue
I have to plead that pressures of time and space preclude as full and thorough a consideration as I would have liked to have attempted. Some other interesting interpretations can be found here, here and here. As to be expected they do not all come to the same conclusions or use the same reasoning, showing how difficult this area of law has perhaps inevitably come. I also enjoy reading this column which regularly considers religion and the law issues, though I frequently disagree with the author’s conclusions.
Meanwhile, here are some thoughts on the hypothetical questions I set out on the first post in this series:
- Sarah the recent alcohol-averse convert should realistically have to end her contract and renegotiate a new one. But her employer Jack would be well advised to consider reassigning her to other duties, assuming that it is practical to do so and no other employees object. In other words he should consider the proportionality of Sarah’s request.
- Mohammed who does not want work on Sundays is out of luck if there is a business justification for it.
- Lucy the environmentalist will hang her case on Nicholson v Grainger, my thoughts on which can be found here.
- Ravi the convert will, like Sarah, have to get around the ruling in Mba.
- Bethan with the crucifix will have a strong case as her situation mirrors Eweida more closely than Chaplin.
- Brian the Judas Priest fan hasn’t got much of a case to say his musical tastes are equivalent to a religion. He snarls that “at least Judas Priest is real” and announces his resignation.
- Jennifer the druid has an interesting point in the light of this story.
- Fatima’s case for not serving homosexuals will certainly (and rightly) fail following on Ladele and McFarlane.
Meanwhile, Jack has given up hiring new staff and so gives Peter the bad news. This is the real point of my extended fable: discussions of rights tend to take place based on the assumption that the only consideration is striking the fair balance between competing human rights. In the real world, unless there are clear and workable rules about employment rights (whether the most fair imaginable or not), employers will not hire new staff, meaning fewer jobs will be created and existing workers will have to shoulder a greater workload each time the business wants to expand. We should not underestimate the importance of certainty in the labour market.
General observations
What does it mean to have a right to one’s religion? Generally speaking, two things. First, the state should not favour one religion over another. (We in Britain muddle along with an established church, it is true, which may be somewhat intellectually indefensible but falls into the category of Mostly Harmless, and I will leave it aside for now.) Otherwise everyone should be able to worship what they like and where they like within the law, and the law should treat all religions the same, meaning one group should not get state funding or otherwise preferential treatment over others.
Secondly, no-one should be discriminated against because of their religion. In the sphere of criminal law, the state should not impose harsher or lighter sentences because a convicted person happens to belong to a religion. In the employment context, no one should be sacked or disciplined in employment because they believe in X, Y, Z or nothing. It would be outrageous, say, for a bank to state that it will only hire Sikhs and not Hindus or anyone else, and quite properly the latter would have a legal remedy provided by the state via the courts.
We can all agree, I suspect, on that sort of direct discrimination as being plainly wrong. Beyond that agreement is a bit more tricky. My own general approach is set out in Chapter 27 of my book. Let us now turn to the actual cases, which I have separated into two categories called the symbols cases and the refusal cases respectively.
The symbols cases
Normally it is up to the parties to an employment contract to agree on the terms and then either abide by them or end the contract and pay the other side compensation if the contract is not ended in accordance with its terms. The state’s interest is confined to ensuring that there is no direct discrimination of the sort mentioned above, so that the employer cannot refuse to hire a person because of their gender or race or religion or whatever – and equally so that the employee cannot say (for example) that she will not work in an office with people of a different ethnicity or refuse to serve certain customers for reasons that amount to unlawful discrimination. (The state might also be concerned with health and safety requirements, or a minimum wage, but again those need not concern us here.)
So far as uniform policies or dress codes are concerned, most employers will usually have a policy in place at the start. As long as the existence of the policy is made known to any employee before she signs her contract, and she has a chance to review the terms of the policy and negotiate any exception, it is difficult to see why she should subsequently demand the right to breach the uniform policy in order to display a symbol on religious or cultural or any other ground. The answer is for her to negotiate the agreement from the start. Obviously any sensible employer should not object to inoffensive or unobtrusive items like turbans or crosses, though of course that would not be guaranteed.
This is the approach which Strasbourg has now discarded, having stated (at para [83]):
“Given the importance in a democratic society of freedom of religion, the Court considers that, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate.”
The problem is that weighing an overall balance may be an interesting and challenging task for academic lawyers, but in many cases it will place a considerable burden on both employers and employees to determine whether any claimed interference with a right is proportionate. Sometimes the answer might be obvious, but there will no doubt be instances where well-meaning employers and employees will face uncertainty – as reflected in the differing outcomes in Eweida and Chaplin’s cases. It is not just employers who suffer when there is uncertainty in the law, but also employees, who would like to know where they stand. And if a dispute results in litigation then both will suffer the attendant cost and stress, whoever wins.
In Chaplin’s case the court decided, quite sensibly, that it could not second-guess the hospital authorities on what was safe and what was not. But what made the court think that it could second-guess BA’s corporate image? Something tells me the judges in Strasbourg have probably not spent very much time running a large multinational company or working in its PR department.
One of the reasons BA came unstuck in Eweida’s case was because it had permitted turbans and head scarfs, so there was a point of consistency between religions. But would it really have been better if it had said no turbans or headscarfs? The only difference with the cross was that it was disputed whether Christianity actually requires it. But neither employers nor courts are in any position to judge what a religion entails on the true construction of its scriptures. We might all agree that it would be reasonable for BA employees to be allowed to wear turbans if they wish, but that is an easy case, and as the old saying goes it is hard cases that make bad law (such as someone demanding to wear an offensive symbol or some bizarre non-religious one).
Maybe, therefore, it comes down to not much more than demanding a liberal dress code, or at the very least a consistent one in which either all symbols are banned or none.
Reverting back to classical contract law once again, it might also be said that Ms Eweida’s breach was so small and insignificant that it would not have caused BA any obvious loss (would a brace of passengers suddenly refused to fly because of the shock of seeing a cross?) and would not have justified terminating the contract. I would have thought it a de minimus breach. Even on a classical contract analysis, however, it would be necessary for the parties to judge what is and what is not a serious breach and that would not be so different from the test about whether a uniform policy complies with art 9.
So it seems there is no easy answer – one way or another we have to end up with someone picking and choosing what religious symbols are reasonable to allow and what are not. Given the inherent problems with such an exercise, there is all the more reason for the parties agreeing terms before one begins, and the courts requiring very good reasons indeed for either party wanting to change them afterwards. In other words, just as the Court allows or should allow a wide margin of appreciation for states, so the states in turn should allow citizens a wide margin of appreciation and presume as a starting point at least that parties should be bound by the terms of contracts they voluntarily conclude. This of course is not all one-sided: as well as protecting employers from employees suddenly making claims years after starting work, it also protects employees from having radical changes of policy foistered on them.
The refusal cases
The refusal cases can be answered more easily. In this context the clash has often been framed as between the right of a person to practice their beliefs, and the right of another person not to be discriminated against in the provision of public services.
It is no surprise that the UK courts and Strasbourg favoured the latter. Imagine for a moment that the employees had proclaimed that their religion prohibited them dealing with Jews or Muslims, or otherwise being seen as “condoning” them. Or imagine if a judge suddenly decided that his religion dictated that a woman’s evidence was of less importance than that of a man. They would have been given a short answer. So would a restaurant which said it was run by the former Dutch Reformed Church and wanted to exclude ethnic minorities as inferior people.
Moreover, the same answer would have been given if the employees had wanted to discriminate in the same way on non-religious grounds.
In Mrs Ladele’s case, there was an argument which appealed to the dissenting judges, namely that she had accepted her job before civil partnerships existed, so the employer should not have been entitled to rewrite her contract by forcing her to preside over them.
There is some cogency to this argument. Assume, however, that someone had been a registrar in the Southern States before the civil rights reforms, when mixed-race marriages were disallowed. Then assume they had run the same argument after the reforms. I doubt any sympathy would lie with someone who refused to perform mixed-race ceremonies due to ‘conscience’.
Epilogue
I have to plead that pressures of time and space preclude as full and thorough a consideration as I would have liked to have attempted. Some other interesting interpretations can be found here, here and here. As to be expected they do not all come to the same conclusions or use the same reasoning, showing how difficult this area of law has perhaps inevitably come. I also enjoy reading this column which regularly considers religion and the law issues, though I frequently disagree with the author’s conclusions.
Meanwhile, here are some thoughts on the hypothetical questions I set out on the first post in this series:
- Sarah the recent alcohol-averse convert should realistically have to end her contract and renegotiate a new one. But her employer Jack would be well advised to consider reassigning her to other duties, assuming that it is practical to do so and no other employees object. In other words he should consider the proportionality of Sarah’s request.
- Mohammed who does not want work on Sundays is out of luck if there is a business justification for it.
- Lucy the environmentalist will hang her case on Nicholson v Grainger, my thoughts on which can be found here.
- Ravi the convert will, like Sarah, have to get around the ruling in Mba.
- Bethan with the crucifix will have a strong case as her situation mirrors Eweida more closely than Chaplin.
- Brian the Judas Priest fan hasn’t got much of a case to say his musical tastes are equivalent to a religion. He snarls that “at least Judas Priest is real” and announces his resignation.
- Jennifer the druid has an interesting point in the light of this story.
- Fatima’s case for not serving homosexuals will certainly (and rightly) fail following on Ladele and McFarlane.
Meanwhile, Jack has given up hiring new staff and so gives Peter the bad news. This is the real point of my extended fable: discussions of rights tend to take place based on the assumption that the only consideration is striking the fair balance between competing human rights. In the real world, unless there are clear and workable rules about employment rights (whether the most fair imaginable or not), employers will not hire new staff, meaning fewer jobs will be created and existing workers will have to shoulder a greater workload each time the business wants to expand. We should not underestimate the importance of certainty in the labour market.
Tuesday, 15 January 2013
Eweida and others v United Kingdom Part II: what the court ruled
Note: I have slightly altered the intended structure of this article, having now seen the judgment. In this part I will set out what the Court ruled, and in the third part will offer some comment and analysis.
General principles
The Court observed that, as enshrined in art 9, freedom of thought, conscience and religion was one of the foundations of a “democratic society” within the meaning of the Convention. In its religious dimension it was one of the most vital elements that went to make up the identity of believers and their conception of life, but it was also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society depended on it. Religious freedom was primarily a matter of individual thought and conscience. That aspect of the right set out in the first paragraph of art 9, to hold any religious belief and to change religion or belief, was absolute and unqualified.
However, as further set out in art 9(1), freedom of religion also encompassed the freedom to manifest one’s belief, alone and in private but also to practice in community with others and in public. The manifestation of religious belief might take the form of worship, teaching, practice and observance. The right to freedom of thought, conscience and religion denoted views that attained a certain level of cogency, seriousness, cohesion and importance. Provided that was satisfied, the state’s duty of neutrality and impartiality was incompatible with any power on the state’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs were expressed. Even where the belief in question attained the required level of cogency and importance, it could not be said that every act which was in some way inspired, motivated or influenced by it constituted a ‘manifestation’ of the belief.
It was true that there was case-law which indicated that if a person was able to take steps to circumvent a limitation placed on his or her freedom to manifest religion or belief, there was no interference with the right under art 9(1) and the limitation therefore did not have to be justified under art 9(2). In cases involving restrictions placed by employers on an employee’s ability to observe religious practice, the Commission had held in several decisions that the possibility of resigning from the job and changing employment meant that there was no interference with the employee’s religious freedom. The better approach was that, where an individual complained of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with that right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate. This is an important point, to which I will return. In the old days, as noted in the introduction, employees would simply be told to work elsewhere if they did not like the terms of their contract. Nowadays employers will have to consider an "overall balance". Continuing my fable about the beseiged employer Jack, he has just been deprived of a tidy solution that would have disposed of just about all of the problems he is facing. It may still be available in some cases, but it will no longer be as clear cut.
The Court rounded off its general observations by nothing that it left the states party to the Convention a certain margin of appreciation in deciding whether and to what extent an interference was necessary (see [79]-[84] of the judgment).
The individual cases
1. Mrs Eweida
The refusal by BA to allow Mrs Eweida to remain in her post while visibly wearing a cross amounted to an interference with her right to manifest her religion. Since the interference was not directly attributable to the state, it was necessary to examine whether in all the circumstances the state authorities had complied with their positive obligation under art 9 - in other words whether they should have interfered with a private bargain to engineer what they considered to be a socially desirable outcome.
On the facts, according to the majority of the Court, a fair balance had not been struck between Mrs Ewieda's desire to manifest her religion and BA’s desire to project a certain corporate image. While the latter was undoubtedly legitimate, it had been accorded too much weight by the domestic courts. Mrs Ewieda’s piece of jewellery was discreet and could not have detracted from her professional appearance. There was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had had any negative effect on BA’s image. Also, since BA had subsequently changed its policy to allow crosses to be displayed, it could not argue that the impact of Mrs Eweida's wishes was significant (I interpolate that this looks rather as though BA shot itself in the foot by trying to be accommodating ...).
In all of those circumstances, where there was no evidence of any real encroachment on the interests of others, the Court concluded that the British authorities had failed to protect Mrs Eweida’s right to manifest her religion, in breach of the positive requirement of art 9 (see [93]-[95] of the judgment - note, Judges Bratza and Thor Bjorgvinsson dissented on this point). She was awarded the usual small sum on these occasions - the Court regards the primary result of its findings to be the fact of the breach itself and the resultant necessity for the state to remedy the breach, not the particular consequences for the litigants.
2. Mrs Chaplin
The reason for asking Mrs Chaplin to remove her cross, namely the protection of health and safety on a hospital ward, was inherently of a greater magnitude than that which applied in the case of Mrs Eweida. Moreover, that was a field in which the domestic authorities had to be allowed a wide margin of appreciation. The hospital managers were better placed to make decisions about clinical safety than a court, particularly an international court which had heard no evidence.
It followed that the measures complained of by Chaplin were not disproportionate and her application would be dismissed (see [99]-[101] of the judgment).
3. Mrs Ladele
The Court agreed with Mrs Ladele's contention that the local authority's requirement that all registrars be designated as civil partnership registrars had a particularly detrimental impact on her because of her religious beliefs. It was therefore necessary to determine whether the policy pursued a legitimate aim and was proportionate.
Differences in treatment based on sexual orientation required particularly serious reasons by way of justification. Same-sex couples were in a relevantly similar situation to different-sex couples as regards their need for legal recognition and protection of their religion and protection of their relationship, although given that it was a developing area contracting states enjoyed a wide margin of appreciation in the way in which that might be achieved. Against that background, it was evident that the aim pursued by the authority was legitimate.
As to whether it was proportionate, the Court took account of the fact that the consequences for Mrs Ladele were serious: given the strength of her religious convictions, she felt no option other than to face disciplinary action. Nor had she waived any right to manifest her belief, given that civil partnerships did not exist at the time she started her employment. On the other hand, the local authority’s policy aimed to secure the rights of others which were also protected under the Convention, and the Court generally allowed national authorities a wide margin of appreciation when it came to striking a balance between competing Convention rights.
In all the circumstances, the national authorities in the form of the local authority had not exceeded the margin available to them (see [106] of the judgment - note, Judges Vucinic and de Gaetano dissented on this point).
4. Mr McFarlane
The key factor in Mr McFarlane's case was that his employer’s action was intended to secure the implementation of its policy of providing a service without discrimination. It was a question of Mr McFarlane's right to exercise his beliefs, and the right of his employer's clients to receive services without discrimination. The Court ruled that the domestic authorities benefitted from a wide margin of appreciation in deciding where to strike that balance between McFarlane’s right to manifest his religious belief and his employer’s interest in securing the rights of others. Not surprisingly, it held that in all the circumstances that that margin had not been exceeded in McFarlane’s case (see [109]-[110] of the judgment).
The result
Despite the headlines already appearing about the case the Court's ruling was a lot less controversial than it might have been. Stronger stuff appears in the dissents, which I will consider in Part III of this article, which is concerned with comment and analysis. In the meantime, I would note that for each of the individual cases the Court stressed the margin of appreciation to be given to the state - the very opposite of "Strasbourg telling us what to do" paranoia to which some of the papers are prone.
That said, the point made earlier about depriving everyone of a neat and tidy solution by telling anyone whose rights have been breached to look for another job may have some significance. There is a case for saying it would or should have applied in the reverse in Mrs Ladele's case, since civil partnerships did not exist when she started her employment - thus, the argument would run, the employer should have been told to lump it when it asked her to undertake duties which she considered fundamentally different from those to which she signed up.
Then we have the irony already noted of BA in Mrs Eweida's case apparently coming unstuck at least partially because it was accommodating after the dispute had been raised.
Some commentators have noted somewhat wryly that it is unlikely that any homosexuals would want their civil partnership presided over by someone with Mrs Ladele's views, nor their relationship counselling to have been provided by someone such as Mr McFarlane whose heart was clearly not in it. But that falls into the category of "jury point" - a good soundbite - without giving us a compelling argument based on principle which might be used as general guidance for future cases.
As mentioned, in the third and final part of this article I will offer some comment and analysis. I will leave this point by noting that my hypothetical employer Jack will be having second thoughts about taking on more staff at all, at least until his lawyers have had time to pore over the ECtHR's decision at more leisure.
General principles
The Court observed that, as enshrined in art 9, freedom of thought, conscience and religion was one of the foundations of a “democratic society” within the meaning of the Convention. In its religious dimension it was one of the most vital elements that went to make up the identity of believers and their conception of life, but it was also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society depended on it. Religious freedom was primarily a matter of individual thought and conscience. That aspect of the right set out in the first paragraph of art 9, to hold any religious belief and to change religion or belief, was absolute and unqualified.
However, as further set out in art 9(1), freedom of religion also encompassed the freedom to manifest one’s belief, alone and in private but also to practice in community with others and in public. The manifestation of religious belief might take the form of worship, teaching, practice and observance. The right to freedom of thought, conscience and religion denoted views that attained a certain level of cogency, seriousness, cohesion and importance. Provided that was satisfied, the state’s duty of neutrality and impartiality was incompatible with any power on the state’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs were expressed. Even where the belief in question attained the required level of cogency and importance, it could not be said that every act which was in some way inspired, motivated or influenced by it constituted a ‘manifestation’ of the belief.
It was true that there was case-law which indicated that if a person was able to take steps to circumvent a limitation placed on his or her freedom to manifest religion or belief, there was no interference with the right under art 9(1) and the limitation therefore did not have to be justified under art 9(2). In cases involving restrictions placed by employers on an employee’s ability to observe religious practice, the Commission had held in several decisions that the possibility of resigning from the job and changing employment meant that there was no interference with the employee’s religious freedom. The better approach was that, where an individual complained of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with that right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate. This is an important point, to which I will return. In the old days, as noted in the introduction, employees would simply be told to work elsewhere if they did not like the terms of their contract. Nowadays employers will have to consider an "overall balance". Continuing my fable about the beseiged employer Jack, he has just been deprived of a tidy solution that would have disposed of just about all of the problems he is facing. It may still be available in some cases, but it will no longer be as clear cut.
The Court rounded off its general observations by nothing that it left the states party to the Convention a certain margin of appreciation in deciding whether and to what extent an interference was necessary (see [79]-[84] of the judgment).
The individual cases
1. Mrs Eweida
The refusal by BA to allow Mrs Eweida to remain in her post while visibly wearing a cross amounted to an interference with her right to manifest her religion. Since the interference was not directly attributable to the state, it was necessary to examine whether in all the circumstances the state authorities had complied with their positive obligation under art 9 - in other words whether they should have interfered with a private bargain to engineer what they considered to be a socially desirable outcome.
On the facts, according to the majority of the Court, a fair balance had not been struck between Mrs Ewieda's desire to manifest her religion and BA’s desire to project a certain corporate image. While the latter was undoubtedly legitimate, it had been accorded too much weight by the domestic courts. Mrs Ewieda’s piece of jewellery was discreet and could not have detracted from her professional appearance. There was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had had any negative effect on BA’s image. Also, since BA had subsequently changed its policy to allow crosses to be displayed, it could not argue that the impact of Mrs Eweida's wishes was significant (I interpolate that this looks rather as though BA shot itself in the foot by trying to be accommodating ...).
In all of those circumstances, where there was no evidence of any real encroachment on the interests of others, the Court concluded that the British authorities had failed to protect Mrs Eweida’s right to manifest her religion, in breach of the positive requirement of art 9 (see [93]-[95] of the judgment - note, Judges Bratza and Thor Bjorgvinsson dissented on this point). She was awarded the usual small sum on these occasions - the Court regards the primary result of its findings to be the fact of the breach itself and the resultant necessity for the state to remedy the breach, not the particular consequences for the litigants.
2. Mrs Chaplin
The reason for asking Mrs Chaplin to remove her cross, namely the protection of health and safety on a hospital ward, was inherently of a greater magnitude than that which applied in the case of Mrs Eweida. Moreover, that was a field in which the domestic authorities had to be allowed a wide margin of appreciation. The hospital managers were better placed to make decisions about clinical safety than a court, particularly an international court which had heard no evidence.
It followed that the measures complained of by Chaplin were not disproportionate and her application would be dismissed (see [99]-[101] of the judgment).
3. Mrs Ladele
The Court agreed with Mrs Ladele's contention that the local authority's requirement that all registrars be designated as civil partnership registrars had a particularly detrimental impact on her because of her religious beliefs. It was therefore necessary to determine whether the policy pursued a legitimate aim and was proportionate.
Differences in treatment based on sexual orientation required particularly serious reasons by way of justification. Same-sex couples were in a relevantly similar situation to different-sex couples as regards their need for legal recognition and protection of their religion and protection of their relationship, although given that it was a developing area contracting states enjoyed a wide margin of appreciation in the way in which that might be achieved. Against that background, it was evident that the aim pursued by the authority was legitimate.
As to whether it was proportionate, the Court took account of the fact that the consequences for Mrs Ladele were serious: given the strength of her religious convictions, she felt no option other than to face disciplinary action. Nor had she waived any right to manifest her belief, given that civil partnerships did not exist at the time she started her employment. On the other hand, the local authority’s policy aimed to secure the rights of others which were also protected under the Convention, and the Court generally allowed national authorities a wide margin of appreciation when it came to striking a balance between competing Convention rights.
In all the circumstances, the national authorities in the form of the local authority had not exceeded the margin available to them (see [106] of the judgment - note, Judges Vucinic and de Gaetano dissented on this point).
4. Mr McFarlane
The key factor in Mr McFarlane's case was that his employer’s action was intended to secure the implementation of its policy of providing a service without discrimination. It was a question of Mr McFarlane's right to exercise his beliefs, and the right of his employer's clients to receive services without discrimination. The Court ruled that the domestic authorities benefitted from a wide margin of appreciation in deciding where to strike that balance between McFarlane’s right to manifest his religious belief and his employer’s interest in securing the rights of others. Not surprisingly, it held that in all the circumstances that that margin had not been exceeded in McFarlane’s case (see [109]-[110] of the judgment).
The result
Despite the headlines already appearing about the case the Court's ruling was a lot less controversial than it might have been. Stronger stuff appears in the dissents, which I will consider in Part III of this article, which is concerned with comment and analysis. In the meantime, I would note that for each of the individual cases the Court stressed the margin of appreciation to be given to the state - the very opposite of "Strasbourg telling us what to do" paranoia to which some of the papers are prone.
That said, the point made earlier about depriving everyone of a neat and tidy solution by telling anyone whose rights have been breached to look for another job may have some significance. There is a case for saying it would or should have applied in the reverse in Mrs Ladele's case, since civil partnerships did not exist when she started her employment - thus, the argument would run, the employer should have been told to lump it when it asked her to undertake duties which she considered fundamentally different from those to which she signed up.
Then we have the irony already noted of BA in Mrs Eweida's case apparently coming unstuck at least partially because it was accommodating after the dispute had been raised.
Some commentators have noted somewhat wryly that it is unlikely that any homosexuals would want their civil partnership presided over by someone with Mrs Ladele's views, nor their relationship counselling to have been provided by someone such as Mr McFarlane whose heart was clearly not in it. But that falls into the category of "jury point" - a good soundbite - without giving us a compelling argument based on principle which might be used as general guidance for future cases.
As mentioned, in the third and final part of this article I will offer some comment and analysis. I will leave this point by noting that my hypothetical employer Jack will be having second thoughts about taking on more staff at all, at least until his lawyers have had time to pore over the ECtHR's decision at more leisure.
Monday, 14 January 2013
Eweida and Others v United Kingdom Part I: introduction
Jack runs a business he set up by himself, selling various luxury goods to the international jet set. He has a very demanding customer base and, because he is selling all over the world, his business has to operate 24/7 to have any chance of competing in what is a tough marketplace. He has a staff of ten who work in shifts around the clock. One Monday morning Jack is sitting at his desk staring at a plethora of staff requests which have arrived from eight of his ten employees.
Sarah has just converted to Islam. She announces that she no longer wishes to handle any alcoholic goods. She would also like a prayer room to be provided at the office, which she plans to use five times a day.
Mohammed, for his part, has recently been persuaded of the validity of Anglican holy orders. He no longer wants to work on Sundays.
Lucy is a committed environmentalist with a passionate belief in the danger of man-made global warming (AGW). She has a long list of transactions and business practices with which she disagrees because they involve unnecessary carbon emissions. She says that in all conscience she cannot support the business acting in this way. She demands that any such tasks should be assigned to someone else, to spare her conscience.
Ravi has just completed the long process of converting to Orthodox Judaism. He asks not to have to work on Saturdays. To make things trickier, one of Jack’s best customers requires a regular delivery on Saturdays and says he does not want to deal with anyone other than Ravi, who has been his regular contact for many years.
Bethan says that she wants to display a crucifix at work, contrary to the company’s dress code. Jack’s international customers include some people based in the Middle East, some in the Southern Bible belt of America, and some practising Hindus in India. He prefers no religious symbols whatever to be on display with customer-facing staff. He notes no symbols are visible in the personal photos on Bethan’s Facebook page.
Brian is a fanatical devotee of the British heavy metal band Judas Priest. He spends every spare minute outside work rehearsing or playing with his tribute band. He and his fiancé attend every performance the band gives in Britain and want to arrange their honeymoon to follow the next world tour.
Jennifer is a druid, and says she wants to have the solstice off every year, along with one or two other events Jack has not heard of before.
Fatima says that her unspecified religion disapproves of gay marriage, and she would prefer not to deal with a client whose conference-centre business specialises in hosting gay marriages in another country where it is already legal.
Meanwhile, Jack’s preferred candidate for a vacancy he has is Peter, a secular teetotaller who wrote a PhD on social problems caused by alcohol. Peter asks if he too can be exempted from handling alcohol as he does not want it on his conscience that he might have contributed to what he sincerely believes is a social ill.
The other two staff members have no issue other than wanting a new coffee machine to be installed in the kitchen. But they have made clear that they do not think it is reasonable for their leisure time to be compromised and their roles to be circumscribed by having to work shifts or undertake tasks which their workmates want to avoid on religious grounds.
Jack’s forwards all the emails to his solicitors, an expensive city firm who tend to instruct a barrister every time they have difficult employment questions, because it is not their area of expertise. He winces at the impending cost and asks them if they can give some straightforward advice so he can avoid these sorts of headaches in the future.
In the not so very distant past, the solicitors’ advice would have been simple: all of the employees would be told that they could either follow the letter of their employment contracts or lump it. To the extent that religion intruded on the equation at all, it would probably have only been in the general sense that Sunday trading was unheard of and so there would not be much call for Jack to open then. Ironically, in those days Britain was probably a more religious country than it is now, at least if attendance numbers at the established church are anything to go by.
In 21st century multicultural, multifaith (if increasingly secular) Britain, however, none of Jack’s headaches seem implausible and not many of them admit of easy answers. So it is with great anticipation that all employers and their legal advisers will have been waiting for the European Court of Human Rights (ECtHR) to give judgment in Eweida and Others v. the United Kingdom (nos. 48420/10, 59842/10, 51671/10 and 36516/10).
The applicants, Nadia Eweida, Shirley Chaplin, Lilian Ladele and Gary McFarlane, were all British nationals. All were practising Christians who complained that UK law did not sufficiently protect their rights to freedom of religion and freedom from discrimination at work.
In the first two cases, Ms Eweida, a British Airways employee, and Ms Chaplin, a geriatrics nurse, complained that their employers placed restrictions on their visibly wearing Christian crosses around their necks while at work.
In the second two cases, Ms Ladele, a Registrar of Births, Deaths and Marriages, and Mr McFarlane, a Relate counsellor, complained about their dismissal for refusing to carry out certain of their duties which they considered would condone homosexuality.
Thus the four cases fall into two categories, within the broad heading of religion and employment.
In the first category, the applicants wished to wear religious symbols whilst at work (the symbols cases). In the second category, the applicants did not wish to carry out duties which might have led to an inference that they condoned homosexuality (the refusal cases).
The two categories share common issues but are by no means identical. The next part of this article will discuss the symbols cases, while the third part will consider the refusal cases and then draw some overall conclusions. For the balance of this introductory part, I will say a few words about three prior questions which do not arise in the ECtHR cases but which will arise in others, including some of the hypothetical examples above concerning the beleaguered Jack.
The questions are: (i) what constitutes a religion; (ii) how to judge whether or not any employee is actually telling the truth about her or his beliefs; and (iii) whether and to what extent different rules apply when the employer is a religious institution.
No-one would argue that mainstream Christianity such as that practised by the four applicants before the ECtHR constitutes a religion. Nor would anyone argue about Islam or Hinduism. But we have seen previous disputes over whether or not Scientology or Druidry are religions.
Then there is the famous example of Jedi worship being considered a religion for the purposes of the census, since the only criterion in that case was the number of professed adherents.
Even if one finds a satisfactory definition of “religion”, one then has to consider secular or philosophical beliefs that might be equally deserving of respect and hence the law’s protection. The Employment Appeal Tribunal placed AGW into this category in the well-known case of Nicholson v Grainger plc [2009] All ER (D) 59 (Nov).
I do not think it is possible to formulate a satisfactory definition either of religion or of non-religious beliefs which deserve equal status at law. Accordingly, with respect to both the symbols cases and the refusal cases, it will be necessary to formulate an answer that takes account of that impossibility.
The second prior question is whether anyone is as devout as they would have anyone else believe. Employers, courts and tribunals are not equipped to judge anyone’s piety. Are they to follow someone around to see if they sneakily buy pork or alcohol or other taboo products? Are the employees to be required to call pastors as expert witnesses? Are employees to be given a test to see how knowledgeable they are about their professed religion’s tenets?
The third prior question is whether and if so to what extent anti-discrimination laws may be set aside for religious employers. If religious schools are allowed, should they also be allowed to discriminate in favour of teachers who share their religion? What of the caretaker, or the maths teacher, neither of whom will be engaged to pass on any religious doctrine to the children?
I imagine the ECtHR will be pleased it has been spared those three questions on this occasion. But we will need to revisit them when coming to the conclusion at the end of Part III of this article. In the meantime Jack’s accountant has advised that the probable cost of the legal advice will have important cashflow implications next month.
Sarah has just converted to Islam. She announces that she no longer wishes to handle any alcoholic goods. She would also like a prayer room to be provided at the office, which she plans to use five times a day.
Mohammed, for his part, has recently been persuaded of the validity of Anglican holy orders. He no longer wants to work on Sundays.
Lucy is a committed environmentalist with a passionate belief in the danger of man-made global warming (AGW). She has a long list of transactions and business practices with which she disagrees because they involve unnecessary carbon emissions. She says that in all conscience she cannot support the business acting in this way. She demands that any such tasks should be assigned to someone else, to spare her conscience.
Ravi has just completed the long process of converting to Orthodox Judaism. He asks not to have to work on Saturdays. To make things trickier, one of Jack’s best customers requires a regular delivery on Saturdays and says he does not want to deal with anyone other than Ravi, who has been his regular contact for many years.
Bethan says that she wants to display a crucifix at work, contrary to the company’s dress code. Jack’s international customers include some people based in the Middle East, some in the Southern Bible belt of America, and some practising Hindus in India. He prefers no religious symbols whatever to be on display with customer-facing staff. He notes no symbols are visible in the personal photos on Bethan’s Facebook page.
Brian is a fanatical devotee of the British heavy metal band Judas Priest. He spends every spare minute outside work rehearsing or playing with his tribute band. He and his fiancé attend every performance the band gives in Britain and want to arrange their honeymoon to follow the next world tour.
Jennifer is a druid, and says she wants to have the solstice off every year, along with one or two other events Jack has not heard of before.
Fatima says that her unspecified religion disapproves of gay marriage, and she would prefer not to deal with a client whose conference-centre business specialises in hosting gay marriages in another country where it is already legal.
Meanwhile, Jack’s preferred candidate for a vacancy he has is Peter, a secular teetotaller who wrote a PhD on social problems caused by alcohol. Peter asks if he too can be exempted from handling alcohol as he does not want it on his conscience that he might have contributed to what he sincerely believes is a social ill.
The other two staff members have no issue other than wanting a new coffee machine to be installed in the kitchen. But they have made clear that they do not think it is reasonable for their leisure time to be compromised and their roles to be circumscribed by having to work shifts or undertake tasks which their workmates want to avoid on religious grounds.
Jack’s forwards all the emails to his solicitors, an expensive city firm who tend to instruct a barrister every time they have difficult employment questions, because it is not their area of expertise. He winces at the impending cost and asks them if they can give some straightforward advice so he can avoid these sorts of headaches in the future.
In the not so very distant past, the solicitors’ advice would have been simple: all of the employees would be told that they could either follow the letter of their employment contracts or lump it. To the extent that religion intruded on the equation at all, it would probably have only been in the general sense that Sunday trading was unheard of and so there would not be much call for Jack to open then. Ironically, in those days Britain was probably a more religious country than it is now, at least if attendance numbers at the established church are anything to go by.
In 21st century multicultural, multifaith (if increasingly secular) Britain, however, none of Jack’s headaches seem implausible and not many of them admit of easy answers. So it is with great anticipation that all employers and their legal advisers will have been waiting for the European Court of Human Rights (ECtHR) to give judgment in Eweida and Others v. the United Kingdom (nos. 48420/10, 59842/10, 51671/10 and 36516/10).
The applicants, Nadia Eweida, Shirley Chaplin, Lilian Ladele and Gary McFarlane, were all British nationals. All were practising Christians who complained that UK law did not sufficiently protect their rights to freedom of religion and freedom from discrimination at work.
In the first two cases, Ms Eweida, a British Airways employee, and Ms Chaplin, a geriatrics nurse, complained that their employers placed restrictions on their visibly wearing Christian crosses around their necks while at work.
In the second two cases, Ms Ladele, a Registrar of Births, Deaths and Marriages, and Mr McFarlane, a Relate counsellor, complained about their dismissal for refusing to carry out certain of their duties which they considered would condone homosexuality.
Thus the four cases fall into two categories, within the broad heading of religion and employment.
In the first category, the applicants wished to wear religious symbols whilst at work (the symbols cases). In the second category, the applicants did not wish to carry out duties which might have led to an inference that they condoned homosexuality (the refusal cases).
The two categories share common issues but are by no means identical. The next part of this article will discuss the symbols cases, while the third part will consider the refusal cases and then draw some overall conclusions. For the balance of this introductory part, I will say a few words about three prior questions which do not arise in the ECtHR cases but which will arise in others, including some of the hypothetical examples above concerning the beleaguered Jack.
The questions are: (i) what constitutes a religion; (ii) how to judge whether or not any employee is actually telling the truth about her or his beliefs; and (iii) whether and to what extent different rules apply when the employer is a religious institution.
No-one would argue that mainstream Christianity such as that practised by the four applicants before the ECtHR constitutes a religion. Nor would anyone argue about Islam or Hinduism. But we have seen previous disputes over whether or not Scientology or Druidry are religions.
Then there is the famous example of Jedi worship being considered a religion for the purposes of the census, since the only criterion in that case was the number of professed adherents.
Even if one finds a satisfactory definition of “religion”, one then has to consider secular or philosophical beliefs that might be equally deserving of respect and hence the law’s protection. The Employment Appeal Tribunal placed AGW into this category in the well-known case of Nicholson v Grainger plc [2009] All ER (D) 59 (Nov).
I do not think it is possible to formulate a satisfactory definition either of religion or of non-religious beliefs which deserve equal status at law. Accordingly, with respect to both the symbols cases and the refusal cases, it will be necessary to formulate an answer that takes account of that impossibility.
The second prior question is whether anyone is as devout as they would have anyone else believe. Employers, courts and tribunals are not equipped to judge anyone’s piety. Are they to follow someone around to see if they sneakily buy pork or alcohol or other taboo products? Are the employees to be required to call pastors as expert witnesses? Are employees to be given a test to see how knowledgeable they are about their professed religion’s tenets?
The third prior question is whether and if so to what extent anti-discrimination laws may be set aside for religious employers. If religious schools are allowed, should they also be allowed to discriminate in favour of teachers who share their religion? What of the caretaker, or the maths teacher, neither of whom will be engaged to pass on any religious doctrine to the children?
I imagine the ECtHR will be pleased it has been spared those three questions on this occasion. But we will need to revisit them when coming to the conclusion at the end of Part III of this article. In the meantime Jack’s accountant has advised that the probable cost of the legal advice will have important cashflow implications next month.
Sunday, 13 January 2013
Mba v Merton London Borough Council: religion and judgments
The case of Mba v Merton London Borough Council UKEAT/0332/12/SM has recently been in the news. The substantive dispute in the case provides a taster for Tuesday’s scheduled Strasbourg judgment on four religion and the law cases. The case also gave rise to an interesting debate in the comments section of the UKHR Blog last week on the form of judgments, a subject on which I happen to know something thanks to my day job. I will offer a few comments on the substantive case first - reserving a fuller consideration of the issues raised until after Tuesday.
The facts
The claimant was a residential care officer for the respondent local authority. Under her contract of employment, she could be required to work on a Sunday. It was the authority’s aim, and required nationally, that continuity of care should be maintained as far as possible. There were sound reasons for this: a lack of continuity increased the risk of significant behavioural change in those children who had difficulty in communicating going unnoticed.
After a time relations broke down between the parties and the claimant raised a grievance. The authority rejected the grievance and scheduled her to work two weekends in three in accordance with the normal rota. That would involve her actually having to work on a Sunday for the first time. She did not turn up to work and, following disciplinary action, she resigned with express regret.
The proceedings
She brought a complaint in the employment tribunal, contending that she had been subject to indirect discrimination, contrary to reg 3(1) of the Employment Regulations 2003 (since replaced by the Equality Act 2010).
Regulation (3)(1) provided:
“For the purposes of these Regulations, a person (“A”) discriminates against another person (“B”) if—
[…]
(b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same religion or belief as B, but—
(i) which puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons,
(ii) which puts B at that disadvantage, and
(iii) which A cannot show to be a proportionate means of achieving a legitimate aim.”
The tribunal ruled in favour of the authority and the claimant appealed.
The appeal
Before anyone got excited about the prospect of a point of great principle, the Appeal Tribunal stated (at para [3]):
We should make it clear at the outset of this Judgment to anyone who expects the conclusion to amount either to a ringing endorsement of an individual’s right not to be required to work on a Sunday on the one hand, or an employer’s freedom to require it on the other, that they will both be disappointed. No such broad general issue arises. The questions raised must be determined in the specific circumstances of this particular case alone.
The Appeal Tribunal also noted also that the authority was obliged by s 6(1) of the Human Rights Act 1998 to act in a compatible fashion with the European Convention on Human Rights, but it was felt that the 2003 Regulations actually imposed a higher burden on the authority than art 9 of the Convention, so the point did not add anything (though there was some evidence Strasbourg was eliding the two tests) (see [16] of the judgment).
The ruling
Three findings of the tribunal were under appeal. The first was the finding that not working on Sunday was not a core component of the Christian faith. The second was the test applied by the tribunal, which was one of “anxious scrutiny or intensive review”. The third was that it did not place the onus on the employer to justify the proportionality test, but instead (wrongly) placed it on the claimant.
The first test is seriously problematic. It involves first the employer then possibly a future court or tribunal trying to investigate what any particular religion’s tenets entail. This is not a task to which they are suited. Moreover, as we saw with the well-known case of Nicholson v Grainger [2009] All ER (D) 59 (Nov), it poses the problem about other, non-religious beliefs and practices that have the same level of importance to other people and yet will not qualify for a religious exemption. Say person A has a strong family tradition of handing down a dagger from father to son and carrying it as a reminder of a forefather’s great performance in battle. Person B is a Sikh and carries a dagger out of religious beliefs. Person B has an exemption from the criminal law but person A does not. The number of similar examples is limited only by the imagination.
As to the second test, requiring an employer to scrutinise any belief and claimed exemption anxiously is imposing yet another layer of red tape on Britain’s hard pressed employers.
So too the third requirement of any onus being on any one to satisfy anyone else whether a claimed exemption is justified.
In the event, the Appeal Tribunal held that the tribunal had reached the correct result on the facts of the case and so dismissed the appeal.
In a nutshell, there should be a distinction between direct and indirect discrimination. It is one thing – and a completely unacceptable one – if an employer states that it will not hire people of a certain faith (unless the employer is a religious organisation). It is another thing if the employer has legitimate reasons to operate on a Sunday: if so, then an employee should not accept the job and then later claim an exemption to be enforced by the state.
Of course it would have been different if the employer had promised a particular exemption as part of the employment contract. In this case there was a dispute as to whether the claimant had been promised at the outset that she would not have to work Sundays. The tribunal ruled on this point in favour of the authority: the authority had thought it likely that the rota could be organised so that the claimant could work every Saturday and have every Sunday off. This fell short of a promise never to require the claimant to work on Sundays, but it was an offer to take reasonable steps to accommodate her wishes at least in the short term.
There is a good post on the case here. I will not write anything further on the point until Strasbourg has ruled on Tuesday. But it is worth saying something about the manner in which the Appeal Tribunal’s judgment was given. It was delivered ex tempore, that is to say orally, with no note of the judgment being available until some weeks later. As a result, once word of the judgment got out, the papers were able to fashion another of their favourite headlines about Christians being persecuted.
The form of judgments
Once upon a time, ex tempore judgments were the norm in almost all courts, and were usually given at the conclusion of the argument. The Latin abbreviation one sees on old law reports “cur ad vult” (“the court took time to consider”) meant a “reserved judgment” – one delivered some days or longer after the case had finished, though it could still be read out rather than given in written form.
Nowadays extempore is still the usual method even in some courts of record, such as the Court of Appeal, Criminal Division and the Administrative Division of the High Court. About a third of the time the Court of Appeal, Civil Division delivers judgments in the same way. It can be frustrating for those interested in analysing cases, although it is also an indication that the judge does not think that the case is of general importance.
LexisNexis (for whom I work), Lawtel and the ICLR still have traditional law reporters in court recording extemps cases and producing scholarly law reports of them (to use the term adopted by Lord Neuberger in his first annual Bailii speech "No judgment-No justice"). There are also press reporters who attend the Royal Courts of Justice and report extempore judgments to the papers, though they are fewer in numbers nowadays. But none of the above would ever be likely to report extempore judgments from the Employment Appeal Tribunal as it would not be worth powder and shot to have someone attending the Tribunal every day as they do the RCJ; instead all organisations simply report the judgments when the transcripts become available.
It follows that there is still scope for misreporting when one has heard the result of the case, or listened to but not fully grasped the meaning of an oral judgment (not a slight against any reporter or lawyer since complex judgments are not always understandable to the best of us without repeated re-reading). Sometimes extemps are given in urgent matters, though they need not be: the judge could simply announce the result of the case with reasons to follow. But I don’t think that means that the practice of extemps should be ended, since it is probably more efficient for unimportant or knock-down cases to be disposed of at the conclusion of the hearing. What should happen instead is that the press ought to be more circumspect when reporting a case for which the full transcript has yet to appear - well, hope springs eternal.
The facts
The claimant was a residential care officer for the respondent local authority. Under her contract of employment, she could be required to work on a Sunday. It was the authority’s aim, and required nationally, that continuity of care should be maintained as far as possible. There were sound reasons for this: a lack of continuity increased the risk of significant behavioural change in those children who had difficulty in communicating going unnoticed.
After a time relations broke down between the parties and the claimant raised a grievance. The authority rejected the grievance and scheduled her to work two weekends in three in accordance with the normal rota. That would involve her actually having to work on a Sunday for the first time. She did not turn up to work and, following disciplinary action, she resigned with express regret.
The proceedings
She brought a complaint in the employment tribunal, contending that she had been subject to indirect discrimination, contrary to reg 3(1) of the Employment Regulations 2003 (since replaced by the Equality Act 2010).
Regulation (3)(1) provided:
“For the purposes of these Regulations, a person (“A”) discriminates against another person (“B”) if—
[…]
(b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same religion or belief as B, but—
(i) which puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons,
(ii) which puts B at that disadvantage, and
(iii) which A cannot show to be a proportionate means of achieving a legitimate aim.”
The tribunal ruled in favour of the authority and the claimant appealed.
The appeal
Before anyone got excited about the prospect of a point of great principle, the Appeal Tribunal stated (at para [3]):
We should make it clear at the outset of this Judgment to anyone who expects the conclusion to amount either to a ringing endorsement of an individual’s right not to be required to work on a Sunday on the one hand, or an employer’s freedom to require it on the other, that they will both be disappointed. No such broad general issue arises. The questions raised must be determined in the specific circumstances of this particular case alone.
The Appeal Tribunal also noted also that the authority was obliged by s 6(1) of the Human Rights Act 1998 to act in a compatible fashion with the European Convention on Human Rights, but it was felt that the 2003 Regulations actually imposed a higher burden on the authority than art 9 of the Convention, so the point did not add anything (though there was some evidence Strasbourg was eliding the two tests) (see [16] of the judgment).
The ruling
Three findings of the tribunal were under appeal. The first was the finding that not working on Sunday was not a core component of the Christian faith. The second was the test applied by the tribunal, which was one of “anxious scrutiny or intensive review”. The third was that it did not place the onus on the employer to justify the proportionality test, but instead (wrongly) placed it on the claimant.
The first test is seriously problematic. It involves first the employer then possibly a future court or tribunal trying to investigate what any particular religion’s tenets entail. This is not a task to which they are suited. Moreover, as we saw with the well-known case of Nicholson v Grainger [2009] All ER (D) 59 (Nov), it poses the problem about other, non-religious beliefs and practices that have the same level of importance to other people and yet will not qualify for a religious exemption. Say person A has a strong family tradition of handing down a dagger from father to son and carrying it as a reminder of a forefather’s great performance in battle. Person B is a Sikh and carries a dagger out of religious beliefs. Person B has an exemption from the criminal law but person A does not. The number of similar examples is limited only by the imagination.
As to the second test, requiring an employer to scrutinise any belief and claimed exemption anxiously is imposing yet another layer of red tape on Britain’s hard pressed employers.
So too the third requirement of any onus being on any one to satisfy anyone else whether a claimed exemption is justified.
In the event, the Appeal Tribunal held that the tribunal had reached the correct result on the facts of the case and so dismissed the appeal.
In a nutshell, there should be a distinction between direct and indirect discrimination. It is one thing – and a completely unacceptable one – if an employer states that it will not hire people of a certain faith (unless the employer is a religious organisation). It is another thing if the employer has legitimate reasons to operate on a Sunday: if so, then an employee should not accept the job and then later claim an exemption to be enforced by the state.
Of course it would have been different if the employer had promised a particular exemption as part of the employment contract. In this case there was a dispute as to whether the claimant had been promised at the outset that she would not have to work Sundays. The tribunal ruled on this point in favour of the authority: the authority had thought it likely that the rota could be organised so that the claimant could work every Saturday and have every Sunday off. This fell short of a promise never to require the claimant to work on Sundays, but it was an offer to take reasonable steps to accommodate her wishes at least in the short term.
There is a good post on the case here. I will not write anything further on the point until Strasbourg has ruled on Tuesday. But it is worth saying something about the manner in which the Appeal Tribunal’s judgment was given. It was delivered ex tempore, that is to say orally, with no note of the judgment being available until some weeks later. As a result, once word of the judgment got out, the papers were able to fashion another of their favourite headlines about Christians being persecuted.
The form of judgments
Once upon a time, ex tempore judgments were the norm in almost all courts, and were usually given at the conclusion of the argument. The Latin abbreviation one sees on old law reports “cur ad vult” (“the court took time to consider”) meant a “reserved judgment” – one delivered some days or longer after the case had finished, though it could still be read out rather than given in written form.
Nowadays extempore is still the usual method even in some courts of record, such as the Court of Appeal, Criminal Division and the Administrative Division of the High Court. About a third of the time the Court of Appeal, Civil Division delivers judgments in the same way. It can be frustrating for those interested in analysing cases, although it is also an indication that the judge does not think that the case is of general importance.
LexisNexis (for whom I work), Lawtel and the ICLR still have traditional law reporters in court recording extemps cases and producing scholarly law reports of them (to use the term adopted by Lord Neuberger in his first annual Bailii speech "No judgment-No justice"). There are also press reporters who attend the Royal Courts of Justice and report extempore judgments to the papers, though they are fewer in numbers nowadays. But none of the above would ever be likely to report extempore judgments from the Employment Appeal Tribunal as it would not be worth powder and shot to have someone attending the Tribunal every day as they do the RCJ; instead all organisations simply report the judgments when the transcripts become available.
It follows that there is still scope for misreporting when one has heard the result of the case, or listened to but not fully grasped the meaning of an oral judgment (not a slight against any reporter or lawyer since complex judgments are not always understandable to the best of us without repeated re-reading). Sometimes extemps are given in urgent matters, though they need not be: the judge could simply announce the result of the case with reasons to follow. But I don’t think that means that the practice of extemps should be ended, since it is probably more efficient for unimportant or knock-down cases to be disposed of at the conclusion of the hearing. What should happen instead is that the press ought to be more circumspect when reporting a case for which the full transcript has yet to appear - well, hope springs eternal.
Wednesday, 9 January 2013
Parliament and war - William Hague's proposals
Last week the Times reported that William Hague proposes to give MPs a veto over proposed military action (Times, p 6, 4 January). This proposal might be compared with the United States’ War Powers Resolution of 1973. Part of the fallout from the Vietnam War, the Resolution permits the executive to start military action, but requires Congressional approval after 60 days (with a further 30 day withdrawal period). This affords the executive the flexibility to respond to emergencies and to retain the element of surprise. It therefore answers two of the objections identified in your report about Mr Hague’s proposal.
The 1973 Resolution is not without its problems, however. For a major campaign it would be an operational nightmare for Congress suddenly to withdraw funding after two months, and political pressure not to compromise the action would be immense, so the provision may be more theoretical than real.
Secondly, during the Libyan campaign, the White House’s position was that the Resolution could not be invoked because the operation did not constitute a “war”. The reasoning given was that American forces were not engaged in sustained fighting or “active exchanges of fire with hostile forces”.
As I have argued in my book (Cases, Causes and Controversies: fifty tales from the law), that argument was entirely fallacious. The United States was (among other things) deploying armed drones to assist rebels attempting to topple the Libyan regime. Attempting to remove a sovereign government by force is a war in anyone’s language. Had a foreign-controlled drone fired on President Obama in the White House, for example, America would have considered it to have been the clearest declaration of war imaginable, and would have responded with the full weight of its armed forces without the slightest hesitation.
Thus one can expect that any mandatory veto granted to Parliament would have to allow not simply for emergency situations but also realpolitik, which seldom appears in a more cynical form than it does in the realm of armed conflict.
The 1973 Resolution is not without its problems, however. For a major campaign it would be an operational nightmare for Congress suddenly to withdraw funding after two months, and political pressure not to compromise the action would be immense, so the provision may be more theoretical than real.
Secondly, during the Libyan campaign, the White House’s position was that the Resolution could not be invoked because the operation did not constitute a “war”. The reasoning given was that American forces were not engaged in sustained fighting or “active exchanges of fire with hostile forces”.
As I have argued in my book (Cases, Causes and Controversies: fifty tales from the law), that argument was entirely fallacious. The United States was (among other things) deploying armed drones to assist rebels attempting to topple the Libyan regime. Attempting to remove a sovereign government by force is a war in anyone’s language. Had a foreign-controlled drone fired on President Obama in the White House, for example, America would have considered it to have been the clearest declaration of war imaginable, and would have responded with the full weight of its armed forces without the slightest hesitation.
Thus one can expect that any mandatory veto granted to Parliament would have to allow not simply for emergency situations but also realpolitik, which seldom appears in a more cynical form than it does in the realm of armed conflict.
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