Last week the Supreme Court predictably dismissed the appeal of a Christian couple who had refused to let a double room to a homosexual couple who were in a civil partnership (Hall and another v Bull and another [2013] All ER (D) 307 (Nov)). They insisted that only married couples could stay in such rooms, so the homosexual couple sued under the Equality Act (Sexual Orientation) Regulations 2007 (since replaced by the Equality Act 2010, without material alteration). The regulations prohibited anyone offering services to the public from discriminating on various grounds, including sexual orientation.
According to the proprietors, they were not discriminating directly on the ground of sexual orientation, but rather on the ground that the couple were not married. It was accepted that, if so, the policy would have been indirectly discriminatory against homosexuals, since (at the time) they could never get married, whereas a heterosexual couple could. In those circumstances, the proprietors offered two ways in which the policy could be justified or excused.
The Supreme Court held that the policy equated to direct discrimination. Whatever explanation was offered, the blunt truth was that the policy of the proprietors treated homosexual couples differently. At that point the arguments about indirect discrimination fell away (though the Supreme Court held that the proprietors would have lost on them anyway).
Did the result mean that the rights of homosexuals to equal treatment "trumped" those of Christians wanting respect for their beliefs? No, said Lady Hale, because the result would have been the same in reverse. That is, had a homosexual couple run a B&B and refused admission to a Christian couple for whatever reason, the Christian couple would have been able to sue them in the same fashion.
The logic is simple: those offering goods or services to the public cannot discriminate on certain grounds, including gender, sexual orientation and religion.
So why then did Universities UK, the representative organisation for the UK's universities, publish guidance suggesting it might be acceptable for a religious speaker at a university - of all places - to demand segregated seating before speaking? Indeed, such an event occurred recently, though the guidance mentions it only as a hypothetical possibility. Nick Cohen takes apart the argument in the Spectator.
If a homosexual couple being disallowed to share a room with a double bed is unlawful discrimination, why is it not equally discriminatory to allow two men to sit together at a university event but not a man and a woman (even married)? If the speaker used to belong to the Dutch Reformed Church and demanded that black and white students be separated, they would be sent on their way. So too a religious bigot who demanded Jews and Gentiles be separated. And so should anyone trying it on with gender discrimination.
Of course one might also wonder why a university was keen on someone preaching religious-based discrimination speaking there in the first place. The cornerstone of any university has to be that ideas have to be advanced on the basis of reason and evidence. All theories have to be subjected to falsification. If any theory is found inconsistent with counter-arguments and evidence, it should be modified or abandoned accordingly. Any religious leader showing up to offer his (and it is usually his) theory that men and women should not sit together can and should expect to have to argue the case, not simply declare it and assume there will be unquestioning and even fawning acceptance. So too any other arguments they might offer on any subject whatever.
It is not too much of an exaggeration to say that all of our present day prosperity and freedom derives from the Enlightenment, and all the hard fights against superstition, obscurantism and intolerance that were fought and won in those times. It seems all those battles are having to be fought all over again.
Showing posts with label religion. Show all posts
Showing posts with label religion. Show all posts
Wednesday, 4 December 2013
Friday, 22 February 2013
Harassment and His Holiness: Heafield v Times Newspaper Ltd (Religion or Belief Discrimination) [2013] UKEAT 1305_12_1701
It is as well that one Mr Heafield did not get a job in the timber yards where I worked over a couple of summers as a student. For the majority of the staff and customers the use of the “f word” was not so much bad language as a way of life. It was rare that they would manage a sentence without it, unless a female was present, in which case it would be watered down to every other sentence. I was always amused by the fact that sometimes they could use it in a sentence as a substitute for the noun, adjective and verb and yet convey their meaning perfectly.
Heafield instead worked as a casual sub-editor at the slightly more rarefied atmosphere of the Times Newspaper in London. He was there during the time of the Pope’s visit to the United Kingdom in 2010. On the evening of 12 March the newsdesk was preparing a story about allegations that the Pope had protected a paedophile priest. One of the editors in the newsroom, a Mr Wilson (no relation), shouted across to the senior production executives “can anyone tell what’s happening to the fucking Pope?” When there was no response he repeated the question more loudly.
Heafield, a Roman Catholic, took offence at this. He raised a complaint, which in his view was not properly progressed, and he then brought a claim in the employment tribunal for harassment and victimisation on the ground of his religious belief.
The definition of harassment at the time was contained in reg 5 of the Employment Equality (Religion or Belief) Regulations 2003 (since replaced by the Equality Act 2010). Regulation 5 provided:
“(1) For the purposes of these Regulations, a person (“A”) subjects another person (“B”) to harassment where, on grounds of religion or belief, A engages in unwanted conduct which has the purpose or effect of -
(a) violating B’s dignity; or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(2) Conduct shall be regarded as having the effect specified in paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect.”
The tribunal adopted the same approach as had been followed under the Race Relations Act 1976 by the Employment Appeal Tribunal in Richmond Pharmaceuticals v Dhaliwal [2009] ICR 724:
“As a matter of formal analysis it is not difficult to break down the necessary elements of liability under section 3A. They can be expressed as three-fold:
(1) The unwanted conduct: Did the Respondent engage in unwanted conduct;
(2) The purpose or effect of that conduct: Did the conduct in question either
(a) have the purpose or,
(b) have the effect
of either (i) violating the claimant’s dignity or (ii) creating an adverse environment for her. …
(3) The grounds for the conduct. Was that conduct on the grounds of the Claimant’s race (or ethnic or national origins) ?”
The tribunal went on to hold that Wilson’s bad language was merely an expression of bad temper which might have amounted to “unwanted conduct”, but was not intended to express hostility to the Pope or Roman Catholicism. Element (1) of the test in Richmond Pharmaceuticals had therefore been established but not elements (2) or (3). Wilson had not known that Heafield was Catholic and, more to the point, there had been no anti-Catholic purpose in what he said. His use of the f-word was simply a manifestation of his stress at the time.
By a fairly tortuous route, the details of which need not concern us here, the matter ended up before the Employment Appeal Tribunal.
The Appeal Tribunal held that the employment tribunal had been plainly right in finding that, to the extent that Heathfield felt his dignity to be violated or that an adverse environment had been created, that was not a reasonable reaction. At para [10] of its judgment it stated:
What Mr Wilson said was not only not ill-intentioned or anti-Catholic or directed at the Pope or at Catholics: it was evidently not any of those things. No doubt in a perfect world he should not have used an expletive in the context of a sentence about the Pope, because it might be taken as disrespectful by a pious Catholic of tender sensibilities, but people are not perfect and sometimes use bad language thoughtlessly: a reasonable person would have understood that and made allowance for it.
The Appeal Tribunal went on to say that the facts of the present case were a good illustration of the kind of case in which the imposition of legal liabilities was undesirable and outside the scope of the legislation.
The case seems to me to be a victory for common sense. Far too often in different contexts courts have had to consider claims for compensation on the ground that someone has been “offended” without any more tangible loss or damage than that. One can no doubt conceive of situations in which such offence or hostility is generated that it amounts to harassment or an impossible working environment, but Heathfield’s case as presented to the employment tribunal came nowhere near.
Legend has it that during the infamous “Bodyline” cricket series between Australia and England in the early 1930s the England captain, Douglas Jardine, went to the Australian dressing room after a day’s play to complain that he had been called a “bastard” by one of the Australian team. He demanded an apology. The Australian captain turned around and shouted across the room “Alright, which one of you bastards called this bastard a bastard?”
History has not been enormously kind to Jardine, who is generally remembered as a pompous sort whose actions on and off the pitch were rarely to be admired. Mr Heafield should take note.
Heafield instead worked as a casual sub-editor at the slightly more rarefied atmosphere of the Times Newspaper in London. He was there during the time of the Pope’s visit to the United Kingdom in 2010. On the evening of 12 March the newsdesk was preparing a story about allegations that the Pope had protected a paedophile priest. One of the editors in the newsroom, a Mr Wilson (no relation), shouted across to the senior production executives “can anyone tell what’s happening to the fucking Pope?” When there was no response he repeated the question more loudly.
Heafield, a Roman Catholic, took offence at this. He raised a complaint, which in his view was not properly progressed, and he then brought a claim in the employment tribunal for harassment and victimisation on the ground of his religious belief.
The definition of harassment at the time was contained in reg 5 of the Employment Equality (Religion or Belief) Regulations 2003 (since replaced by the Equality Act 2010). Regulation 5 provided:
“(1) For the purposes of these Regulations, a person (“A”) subjects another person (“B”) to harassment where, on grounds of religion or belief, A engages in unwanted conduct which has the purpose or effect of -
(a) violating B’s dignity; or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(2) Conduct shall be regarded as having the effect specified in paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect.”
The tribunal adopted the same approach as had been followed under the Race Relations Act 1976 by the Employment Appeal Tribunal in Richmond Pharmaceuticals v Dhaliwal [2009] ICR 724:
“As a matter of formal analysis it is not difficult to break down the necessary elements of liability under section 3A. They can be expressed as three-fold:
(1) The unwanted conduct: Did the Respondent engage in unwanted conduct;
(2) The purpose or effect of that conduct: Did the conduct in question either
(a) have the purpose or,
(b) have the effect
of either (i) violating the claimant’s dignity or (ii) creating an adverse environment for her. …
(3) The grounds for the conduct. Was that conduct on the grounds of the Claimant’s race (or ethnic or national origins) ?”
The tribunal went on to hold that Wilson’s bad language was merely an expression of bad temper which might have amounted to “unwanted conduct”, but was not intended to express hostility to the Pope or Roman Catholicism. Element (1) of the test in Richmond Pharmaceuticals had therefore been established but not elements (2) or (3). Wilson had not known that Heafield was Catholic and, more to the point, there had been no anti-Catholic purpose in what he said. His use of the f-word was simply a manifestation of his stress at the time.
By a fairly tortuous route, the details of which need not concern us here, the matter ended up before the Employment Appeal Tribunal.
The Appeal Tribunal held that the employment tribunal had been plainly right in finding that, to the extent that Heathfield felt his dignity to be violated or that an adverse environment had been created, that was not a reasonable reaction. At para [10] of its judgment it stated:
What Mr Wilson said was not only not ill-intentioned or anti-Catholic or directed at the Pope or at Catholics: it was evidently not any of those things. No doubt in a perfect world he should not have used an expletive in the context of a sentence about the Pope, because it might be taken as disrespectful by a pious Catholic of tender sensibilities, but people are not perfect and sometimes use bad language thoughtlessly: a reasonable person would have understood that and made allowance for it.
The Appeal Tribunal went on to say that the facts of the present case were a good illustration of the kind of case in which the imposition of legal liabilities was undesirable and outside the scope of the legislation.
The case seems to me to be a victory for common sense. Far too often in different contexts courts have had to consider claims for compensation on the ground that someone has been “offended” without any more tangible loss or damage than that. One can no doubt conceive of situations in which such offence or hostility is generated that it amounts to harassment or an impossible working environment, but Heathfield’s case as presented to the employment tribunal came nowhere near.
Legend has it that during the infamous “Bodyline” cricket series between Australia and England in the early 1930s the England captain, Douglas Jardine, went to the Australian dressing room after a day’s play to complain that he had been called a “bastard” by one of the Australian team. He demanded an apology. The Australian captain turned around and shouted across the room “Alright, which one of you bastards called this bastard a bastard?”
History has not been enormously kind to Jardine, who is generally remembered as a pompous sort whose actions on and off the pitch were rarely to be admired. Mr Heafield should take note.
Friday, 1 February 2013
The Times goes to the legal naughty step: AI v MT [2013] EWHC 100 (Fam)
Update: this post has now also been published on the UK Human Rights Blog here.
The Times today deserves a spell on the legal naughty step. Its headline announces that a judge's decision "opens way to divorces by Sharia". One might expect therefore to find that the judgment giving rise to the headline - the decision of Baker J in the Family Court in AI v MT [2013] EWHC 100 (Fam) - was about Sharia law, or otherwise had something to do with it. In fact the judgment concerned a Jewish divorce under the auspices of the Beth Din, and had nothing to do with Sharia at all.
The decision
The judge approved a final order in matrimonial proceedings by consent. That consent order had arisen from the Beth Din. It did not elevate the Beth Din to the status of the High Court. To the contrary, the judge stated that the following legal principles applied (paras [27]-[30]):
[27] First, insofar as the court has jurisdiction to determine issues arising out of the marriage, or concerning the welfare and upbringing of the children, that jurisdiction cannot be ousted by agreement. The parties cannot lawfully make an agreement either not to invoke the jurisdiction or to control the powers of the court where jurisdiction is invoked: see Lord Hailsham in Hyman v Hyman [1929] AC 601.
[28] Secondly, save where statute provides otherwise, when considering issues concerning the upbringing of children, it is the child's welfare that is the paramount consideration. Statute does otherwise provide in respect of applications for the summary return of children under the Hague Convention. Applications for summary return under the inherent jurisdiction, on the other hand, are to be determined by reference to the child's welfare, for the reasons explained by Baroness Hale of Richmond in In re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40, [2006] 1 AC 80 at paragraph 25:
"In all non-Convention cases the courts have consistently held that they must act in accordance with the welfare of the individual child. If they did decide to return the child, that is because it is in the best interests to do so not because the welfare principle has been superseded by some other consideration."
[29] Thirdly, this court gives appropriate respect to the cultural practice and religious beliefs of orthodox Jews as it does to the practices of all other cultures and faiths. But that respect does not oblige the court to depart from the welfare principle because, as explained by Baroness Hale in Re J at paragraphs 37 to 38, the welfare principle is sufficiently broad and flexible to accommodate many cultural and religious practices:
"It would be wrong to say that the future of every child who is within the jurisdiction of our courts should be decided according to a conception of child welfare which exactly corresponds to that which is current here. In a world which values difference, one culture is not inevitably to be preferred to another. Indeed we do not have any fixed concept of what will be in the best interests of the individual child… We are not so arrogant as to think that we know best… Hence our law does not start from any a priori assumptions about what is best for any individual child. It looks at the child and weighs a number of factors in the balance, now set out in the well known checklist in section 1 (3) of the Children Act 1989: These include his own wishes and feelings, his physical and emotional and educational needs, and the relative capacities of the adults around him to meet those needs, the effect of change, his own characteristics and background, including his ethnicity, culture and religion, and any harm he has suffered or risks suffering in the future. There is nothing in those principles which prevents a court from giving great weight to the culture in which a child has been brought up when deciding how and where he will fare best in the future. Our own society is a multi-cultural one."
[30] Fourthly, it is always in the interests of parties to try to resolve disputes by agreement wherever possible, including disputes concerning the future of children and ancillary relief of the breakdown of a marriage. As Thorpe LJ observed in Al Khatib v Masry [2004] EWCA Civ 1353 [2005] 1 FLR 381 at paragraph 17:
"there is no case, however conflicted, which is not potentially open to successful mediation, even if mediation has not been attempted or has failed during the trial process"
In international child abduction cases, the charity Reunite, has run a highly successful mediation scheme for a number of years. It is important to add, however, that, whilst the court will encourage parties to try to resolve disputes by agreement, and will permit parties fully to participate in any process designed to achieve an agreed settlement, including where appropriate a process established by the culture or faith to which they belong or adhere, it must be careful to avoid endorsing any process that has or might have the effect of ousting the jurisdiction of the court, particularly (but not exclusively) in respect of the welfare of children.
The effect
In other words, the parties chose to resolve their differences by means of the Beth Din, but they still required the court's approval. The court happened to approve the Beth Din's ruling as reflected in the consent order, but it is the court's order, and not the Beth Din's ruling, that has force in English law. True, this might mean that other religious rulings might in future be recognised in the same fashion, but the court's approval is not a rubber stamp. If for whatever reason (public policy, lack of valid consent by one or both of the parties, misrepresentation, whatever) that process offended English law then the religious tribunal's decision would not be recognised and would not then attain any status in English law. Baker J stressed that the arbitration was non-binding, and it is clear (see eg para [37]) that he examined the outcome as closely as he would have a settlement reached by any other means.
Comment
Freedom of contract is a central concept under the common law. Arbitration - in commercial or family contexts - is but a subcategory of freedom of contract. Parties are free to agree on dispute resolution mechanisms just as they are free to agree on anything else - within the law. In the commercial world very sophisticated arbitration processes have developed over the years within different industries - shipping, commodity trading, whatever - and London is one of the great world centres for commercial arbitration. Thus every working day in the city tribunals constituted by grain boards or oil traders or shipowners or whatever sit, hear evidence and decide the fate of many millions of pounds. They will attempt to apply the law of the contract, which is often English law but by no means always - a Liberian shipowner might be involved in a dispute with a New York broker and a London insurer and the contract might state that New York law applies. The decision of the arbitrators will be enforceable in English law if the English courts approve, and it might be challenged in the English courts under various (fairly narrow in the commercial context) provisions in the Arbitration Act.
The key point is this: if the courts recognise and allow the enforcement of an arbitration conducted under (say) New York law, that involves no importation of New York law into English law. It is simply a manifestation of the common law doctrine of freedom of contract. The parties agreed they would resolve their dispute under X arbitration process pursuant to Y system of law, and unless there is a good reason (such as the examples given above regarding duress or other circumstances in which the parties cannot in fact be said to have "agreed" despite the face of a contractual document) there is no reason why English law would not recognise it.
Returning to the family context, the courts are more wary of straightforward enforcement of apparent agreements presented to them by consent orders, because it is rare for both parties to be sophisticated entities with independent advisers and a long history of similar transactions between them. It will be even more cautious where the parties purport to resolve their differences according to a different religious or cultural tradition, because, contrary to the odd scaremongering headline, English law will not allow what it otherwise considers persecution to be explained away for cultural or religious reasons - despite the fact that it normally tries to respect cultural and religious differences, as per the quote from Lady Hale in In re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40 above (though I should note that I have some criticims of that judgment, which can wait for another day). Thus, two parties could agree to a divorce under Lord of the Rings' law and if there was no counterveiling reason, the courts might well agree to a consent order based on the outcome. But, for the reasons given above, that would not pave the way for fantasy books to become part of English law.
The Times today deserves a spell on the legal naughty step. Its headline announces that a judge's decision "opens way to divorces by Sharia". One might expect therefore to find that the judgment giving rise to the headline - the decision of Baker J in the Family Court in AI v MT [2013] EWHC 100 (Fam) - was about Sharia law, or otherwise had something to do with it. In fact the judgment concerned a Jewish divorce under the auspices of the Beth Din, and had nothing to do with Sharia at all.
The decision
The judge approved a final order in matrimonial proceedings by consent. That consent order had arisen from the Beth Din. It did not elevate the Beth Din to the status of the High Court. To the contrary, the judge stated that the following legal principles applied (paras [27]-[30]):
[27] First, insofar as the court has jurisdiction to determine issues arising out of the marriage, or concerning the welfare and upbringing of the children, that jurisdiction cannot be ousted by agreement. The parties cannot lawfully make an agreement either not to invoke the jurisdiction or to control the powers of the court where jurisdiction is invoked: see Lord Hailsham in Hyman v Hyman [1929] AC 601.
[28] Secondly, save where statute provides otherwise, when considering issues concerning the upbringing of children, it is the child's welfare that is the paramount consideration. Statute does otherwise provide in respect of applications for the summary return of children under the Hague Convention. Applications for summary return under the inherent jurisdiction, on the other hand, are to be determined by reference to the child's welfare, for the reasons explained by Baroness Hale of Richmond in In re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40, [2006] 1 AC 80 at paragraph 25:
"In all non-Convention cases the courts have consistently held that they must act in accordance with the welfare of the individual child. If they did decide to return the child, that is because it is in the best interests to do so not because the welfare principle has been superseded by some other consideration."
[29] Thirdly, this court gives appropriate respect to the cultural practice and religious beliefs of orthodox Jews as it does to the practices of all other cultures and faiths. But that respect does not oblige the court to depart from the welfare principle because, as explained by Baroness Hale in Re J at paragraphs 37 to 38, the welfare principle is sufficiently broad and flexible to accommodate many cultural and religious practices:
"It would be wrong to say that the future of every child who is within the jurisdiction of our courts should be decided according to a conception of child welfare which exactly corresponds to that which is current here. In a world which values difference, one culture is not inevitably to be preferred to another. Indeed we do not have any fixed concept of what will be in the best interests of the individual child… We are not so arrogant as to think that we know best… Hence our law does not start from any a priori assumptions about what is best for any individual child. It looks at the child and weighs a number of factors in the balance, now set out in the well known checklist in section 1 (3) of the Children Act 1989: These include his own wishes and feelings, his physical and emotional and educational needs, and the relative capacities of the adults around him to meet those needs, the effect of change, his own characteristics and background, including his ethnicity, culture and religion, and any harm he has suffered or risks suffering in the future. There is nothing in those principles which prevents a court from giving great weight to the culture in which a child has been brought up when deciding how and where he will fare best in the future. Our own society is a multi-cultural one."
[30] Fourthly, it is always in the interests of parties to try to resolve disputes by agreement wherever possible, including disputes concerning the future of children and ancillary relief of the breakdown of a marriage. As Thorpe LJ observed in Al Khatib v Masry [2004] EWCA Civ 1353 [2005] 1 FLR 381 at paragraph 17:
"there is no case, however conflicted, which is not potentially open to successful mediation, even if mediation has not been attempted or has failed during the trial process"
In international child abduction cases, the charity Reunite, has run a highly successful mediation scheme for a number of years. It is important to add, however, that, whilst the court will encourage parties to try to resolve disputes by agreement, and will permit parties fully to participate in any process designed to achieve an agreed settlement, including where appropriate a process established by the culture or faith to which they belong or adhere, it must be careful to avoid endorsing any process that has or might have the effect of ousting the jurisdiction of the court, particularly (but not exclusively) in respect of the welfare of children.
The effect
In other words, the parties chose to resolve their differences by means of the Beth Din, but they still required the court's approval. The court happened to approve the Beth Din's ruling as reflected in the consent order, but it is the court's order, and not the Beth Din's ruling, that has force in English law. True, this might mean that other religious rulings might in future be recognised in the same fashion, but the court's approval is not a rubber stamp. If for whatever reason (public policy, lack of valid consent by one or both of the parties, misrepresentation, whatever) that process offended English law then the religious tribunal's decision would not be recognised and would not then attain any status in English law. Baker J stressed that the arbitration was non-binding, and it is clear (see eg para [37]) that he examined the outcome as closely as he would have a settlement reached by any other means.
Comment
Freedom of contract is a central concept under the common law. Arbitration - in commercial or family contexts - is but a subcategory of freedom of contract. Parties are free to agree on dispute resolution mechanisms just as they are free to agree on anything else - within the law. In the commercial world very sophisticated arbitration processes have developed over the years within different industries - shipping, commodity trading, whatever - and London is one of the great world centres for commercial arbitration. Thus every working day in the city tribunals constituted by grain boards or oil traders or shipowners or whatever sit, hear evidence and decide the fate of many millions of pounds. They will attempt to apply the law of the contract, which is often English law but by no means always - a Liberian shipowner might be involved in a dispute with a New York broker and a London insurer and the contract might state that New York law applies. The decision of the arbitrators will be enforceable in English law if the English courts approve, and it might be challenged in the English courts under various (fairly narrow in the commercial context) provisions in the Arbitration Act.
The key point is this: if the courts recognise and allow the enforcement of an arbitration conducted under (say) New York law, that involves no importation of New York law into English law. It is simply a manifestation of the common law doctrine of freedom of contract. The parties agreed they would resolve their dispute under X arbitration process pursuant to Y system of law, and unless there is a good reason (such as the examples given above regarding duress or other circumstances in which the parties cannot in fact be said to have "agreed" despite the face of a contractual document) there is no reason why English law would not recognise it.
Returning to the family context, the courts are more wary of straightforward enforcement of apparent agreements presented to them by consent orders, because it is rare for both parties to be sophisticated entities with independent advisers and a long history of similar transactions between them. It will be even more cautious where the parties purport to resolve their differences according to a different religious or cultural tradition, because, contrary to the odd scaremongering headline, English law will not allow what it otherwise considers persecution to be explained away for cultural or religious reasons - despite the fact that it normally tries to respect cultural and religious differences, as per the quote from Lady Hale in In re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40 above (though I should note that I have some criticims of that judgment, which can wait for another day). Thus, two parties could agree to a divorce under Lord of the Rings' law and if there was no counterveiling reason, the courts might well agree to a consent order based on the outcome. But, for the reasons given above, that would not pave the way for fantasy books to become part of English law.
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.
Saturday, 29 December 2012
R (on the application of Hodkin) v Church of Scientology: religion, religous premises and the law once more
UPDATE: The Supreme Court has given permission to appeal in this decision. The hearing will take place on 18 July 2013.
Readers of this blog will know that I have long advocated a separation of church and state. Broadly speaking, there are three main justifications. First, the state should be neutral as between competing world views. There is no way of deciding which religion if any is the correct one, and therefore the state should not even try.
Secondly, everyone is entitled to their own beliefs or lack of beliefs. Accordingly, the fact that one chooses to follow a particular religion or no religion should not be a ground for discrimination against oneself – be it positive or negative discrimination.
Thirdly, everyone is entitled to respect for the right to hold their beliefs – but not to those beliefs themselves. Therefore, I can claim that my beliefs (spiritual, religious, whatever) require me to lead lifestyle x, but I have no claim on the state to fund that lifestyle, rendering it hard cheese if I cannot afford it.
Sadly, at present the United Kingdom does not have a separation of church and state, and therefore regularly infringes all of those principles. A good recent example is the case of R (on the application of Lousia Hodkin) v Registrar General of Births, Deaths and Marriages [2012] EWHC 3635 (Admin).
The facts
The claimant was a Scientologist who wished to marry her fiancé, another Scientologist, at a chapel of the Church of Scientology in London. The chapel was not registered under s 2 of the Places of Worship Registration Act 1855 as a “place of meeting for religious worship”. Accordingly it was not a registered building under s 26 of the Marriage Act 1949. Unless it could be registered under s 2 of the earlier Act, no application could be made under the later Act and the marriage would have to take place elsewhere.
The defendant registrar held that she was bound to find that a scientology chapel was not a “place of meeting for religious worship” within the meaning of the 1855 Act, following the decision of the Court of Appeal in R v Registrar General ex p Segerdal [1970] 2 QB 697 (Segerdal).
The claim
The claimant applied for judicial review. Of course the decision in Segerdal was, on its face, also binding on the High Court. She argued that the court was nevertheless entitled to depart from the earlier decision, because Scientology’s beliefs and services had evolved since 1970 to the extent that the reasoning of the Court of Appeal in Segerdal was no longer applicable. She adduced much evidence about Scientology’s practices and beliefs in support.
The decision
The claim failed on two bases. First, whether or not Scientology was a “religion” (something left open though doubted in Segerdal), its services did not involve “acts of worship”. The judge found it “difficult to see [Scientology] as a theistic religion”. He found that there had been no significant change in the beliefs of Scientologists and their services since 1970 and therefore it was not open to him or the registrar to depart from Segerdal.
Comment
Not for the first time, the High Court has had to undertake an exercise to which it is manifestly unsuited and which no-one on any side of the equation would wish it to undertake. The UK Human Rights Blog has a good post summarising the decision here. I have added in the comments section the point that there is something inherently wrong with judges having to sift through evidence and decide whether something is or is not a “religion” and I cannot imagine either religious or secular people being happy with it.
Ouseley J referred to the decision of the High Court of Australia in Church of the New Faith v Commissioner of Pay-Roll Tax (Victoria) (1983) 154 CLR 120 which had to decide whether or not Scientology was a religion for payroll tax purposes. The House of Lords had to do something similar with the Mormon Church in Gallagher (Valuation Officer) v Church of Jesus Christ of Latter-Day Saints [2008] 4 All ER 640, where the issue was whether or not a temple was “a place of public worship” and therefore exempt from commercial rates under the Local Government Finance Act 1988.
The tax cases can be dealt with shortly. The rule of law is hopelessly compromised in the United Kingdom by the endless series of tax exemptions, and exemptions to exemptions, that have all kinds of negative consequences. These include (but are not limited to) opportunities for loopholes for the wealthy (who are the only ones able to afford the advice to exploit them); a drain on the public finances caused by the avoided tax and the endless litigation about who or what falls within a particular class; and manifestly unfair results since some intended exemptions will fail on a technicality but unintended claims for exemptions will succeed. I wrote about this in chapter 28 of my book.
Those are all points of general application, but there is no need even to reach that far when it comes to religious organisations and their premises. If a religion is doing charitable work then it is the charitable aspect, not the religious aspect, which should qualify for tax exemption. The overarching principle is the third stated above: everyone is entitled to their own beliefs, but they are not entitled to be able to avoid taxes or otherwise ask anyone else to fund those beliefs.
The same overarching principles apply in the case of marriage. The state should not be regulating religious marriage. Instead my proposed solution, as I have written about before, is for the state to run marriages along French lines. It should set out a list of criteria (age, competence and so on) and a prescribed fee. Anyone meeting those criteria could then apply and be granted a legal marriage certificate. No ceremony would be involved; it would be along the lines of a driving licence. Then everyone would be free to have any ceremony they wanted on any premises that would have them. No religious person would consider the state’s certificate to be anything other than a formality: instead, they would consider the blessing of their church to be the only point of significance. This would free religious groups to do as they wished since they would only be performing private activities according to private contracts. Anti-discrimination laws would never enter the equation for religious groups since the laws would only apply to the state issuing its marriage certificates, not any subsequent private ceremony.
Such a solution, it seems to me, would answer any religiously-based objection to gay marriage, as well as ending the sort of dispute brought by Miss Hodkin. Instead of the courts poring over arcane texts to try and decide whether they constitute a “religion”, Miss Hodkin and her fiancé would be able to obtain a certificate from the state and then hold, just like everyone else, a “marriage ceremony” in the building of their choosing.
Tuesday, 23 October 2012
Black and Morgan v Wilkinson: religious discrimination once more
In advance of the expected judgments of the Supreme Court and the European Court of Human Rights on the issue of sexual equality and religious freedom, the Slough County Court has had to have a go at the issue, in the case of Black and anor v Wilkinson. The judgment can be found here.
The facts
A gay couple asked for a room at a B&B and were refused. They would have been offered separate rooms but none were available, and the owner objected to unmarried couples sharing a bed. The couple brought a claim for direct discrimination under the regime then in force, namely reg 4(1) of the Equality Act (Sexual Orientation) Regulations 2007 (since repealed by the Equality Act 2010). That regulation made it unlawful for a person concerned with the provision of services to the public to discriminate against a person who sought to obtain those services on the ground of that person's sexual orientation by refusing to serve them.
The discrimination was not that the proprietor refused gay couples a room per se, but rather all unmarried couples. It was therefore a question of indirect discrimination, since gay couples presently do not have the right to get married. The couple involved in the case were not in a civil partnership either as it happens, and on that ground differed from those in the well-known case of Bull v Preddy, though it does not seem to be a material difference. Incidentally there was evidence that on the odd occasion unmarried couples had been allowed to share a bed, though apparently only when the proprietor had not discovered that they were unmarried until after granting them the room.
A second issue concerned whether the B&B was really a business, or was so closely connected to the proprietor's home that it should be considered as part of the home and thus no-one else's concern. That might be a grey area in some cases, although in the present case it seems tolerably clear that the defendants were indeed operating a business. But in order to keep this post to manageable length I will leave the point to another day.
Comment
On the face of it, the decision seems straightforward. It is a generally accepted principle of equality that in offering services to the public, one may not discriminate on proscribed grounds. Few would wish to see B&Bs once again able to display signs saying "no blacks or Irish", and President Obama was rightly applauded when he observed he now held the top job in a city in which many restaurants would have refused to serve his father within living memory.
A slightly differing view is found in this analysis on the UK Human Rights Blog by Alasdair Henderson. There are some erudite and interesting comments in the discussion thread below as well. Mr Henderson states:
There does seem to be a good argument for a different approach to cases where religious belief clashes with discrimination law (as has been suggested previously on this blog). At present, the impression given by the courts is that Article 9 is about the least effective part of the European Convention. Although the protection of the holding of a belief under Article 9(1) is absolute, the protection of manifestations of belief under Article 9(2) is interpreted so narrowly as to have almost no impact at all in relation to whole swathes of public life.
(...)
Article 9 protects a poor form of religious freedom indeed, if it does not extend to either the workplace or the marketplace. The current approach is in danger of forcing millions of people to be hypocrites; able to act in line with their beliefs in their own homes or at the mosque/church/synagogue/temple, but having to put on a different face at work or in business. That is unacceptable and unworkable.
With this I respectfully disagree. The link in Mr Henderson's article is to a previous blog by Aiden O'Neill QC, to which I responded here. My conclusion was (and remains) that one is entitled to respect for the right to hold beliefs, but not respect for those beliefs themselves. Just because a person is entitled to hold a belief does not mean that another person has to pay for it, or suffer unlawful discrimination because of it. What is unworkable is trying to determine when and how people are entitled to exemptions from the general law because of a professed religious belief - or belief which they say should be elevated to the same status as religion.
Mr Henderson observes that
... the principle of non-discrimination on grounds of sexual orientation is also hugely important, and carving out exceptions would make it meaningless. Reconciling the two is difficult, but there must be a means of doing so that ensures religious freedom is more than just the freedom to believe what you want in private, and which celebrates and protects the fact that we live in a society which tolerates all kinds of different belief systems.
The problem is that the moment religion enters the public domain one is forced to pick and choose which religions and which of their practices are to be permitted and which are not. This is not a straightforward exercise, to say the least. A private member's bill has recently been introduced to the Lords to address one example, and it has provoked some illuminating if disturbing discussion in Hansard.
Still, I cannot help but think that the courts are not always the best way to deal with disagreements. By using the cudgel of the state's coercive powers to prevent all manifestations of beliefs that we find objectionable, we are in danger of replacing one form of intolerance with another. It is not as though the B&B proprietors in this case or in Bull were out to ban homosexuality or otherwise oppress gay people; they simply had what others would find old fashioned views about marriage. Nor is it their fault that gay marriage is not presently lawful. Mr Henderson correctly applauds the relatively civil fashion in which the dispute was conducted (in contradistinction to others who dipped their oars into the matter), but given that civility I wonder if litigation was really necessary.
Then again, let us look to the not-so-distant past and a different form of discrimination. In the mid-1970s the Sex Discrimination Act came into force. Yet in some well-known cases that followed soon after(1), elderly male judges ignored the plain meaning of the Act and everything that had ever been said about its purpose. Instead they announced found that separate treatment of men and women might be justified on the grounds of “chivalry and administrative convenience” or disregarded as de minimus.
The judgments read like quaint pieces of social history to modern readers. Perhaps the judges of the day did not see what the fuss was about, or felt that their views were nothing more than “common sense” – as indeed they probably were to an earlier generation. But just as we would now insist in a similar case that the law be applied and the discrimination against women outlawed, so we must decide cases on discrimination involving sexual orientation in the same fashion – unlawful discrimination is unlawful discrimination.
(1) See eg Peake v Automotive Products Ltd [1978] Q.B. 233, where Lord Denning MR offered in the context of different treatment of male and female factory workers "I must say it would be very wrong to my mind if this statute were thought to obliterate the differences between men and women or to do away with the chivalry and courtesy which we expect mankind to give womankind. The natural differences of sex must be regarded even in the interpretation of an Act of Parliament."
The facts
A gay couple asked for a room at a B&B and were refused. They would have been offered separate rooms but none were available, and the owner objected to unmarried couples sharing a bed. The couple brought a claim for direct discrimination under the regime then in force, namely reg 4(1) of the Equality Act (Sexual Orientation) Regulations 2007 (since repealed by the Equality Act 2010). That regulation made it unlawful for a person concerned with the provision of services to the public to discriminate against a person who sought to obtain those services on the ground of that person's sexual orientation by refusing to serve them.
The discrimination was not that the proprietor refused gay couples a room per se, but rather all unmarried couples. It was therefore a question of indirect discrimination, since gay couples presently do not have the right to get married. The couple involved in the case were not in a civil partnership either as it happens, and on that ground differed from those in the well-known case of Bull v Preddy, though it does not seem to be a material difference. Incidentally there was evidence that on the odd occasion unmarried couples had been allowed to share a bed, though apparently only when the proprietor had not discovered that they were unmarried until after granting them the room.
A second issue concerned whether the B&B was really a business, or was so closely connected to the proprietor's home that it should be considered as part of the home and thus no-one else's concern. That might be a grey area in some cases, although in the present case it seems tolerably clear that the defendants were indeed operating a business. But in order to keep this post to manageable length I will leave the point to another day.
Comment
On the face of it, the decision seems straightforward. It is a generally accepted principle of equality that in offering services to the public, one may not discriminate on proscribed grounds. Few would wish to see B&Bs once again able to display signs saying "no blacks or Irish", and President Obama was rightly applauded when he observed he now held the top job in a city in which many restaurants would have refused to serve his father within living memory.
A slightly differing view is found in this analysis on the UK Human Rights Blog by Alasdair Henderson. There are some erudite and interesting comments in the discussion thread below as well. Mr Henderson states:
There does seem to be a good argument for a different approach to cases where religious belief clashes with discrimination law (as has been suggested previously on this blog). At present, the impression given by the courts is that Article 9 is about the least effective part of the European Convention. Although the protection of the holding of a belief under Article 9(1) is absolute, the protection of manifestations of belief under Article 9(2) is interpreted so narrowly as to have almost no impact at all in relation to whole swathes of public life.
(...)
Article 9 protects a poor form of religious freedom indeed, if it does not extend to either the workplace or the marketplace. The current approach is in danger of forcing millions of people to be hypocrites; able to act in line with their beliefs in their own homes or at the mosque/church/synagogue/temple, but having to put on a different face at work or in business. That is unacceptable and unworkable.
With this I respectfully disagree. The link in Mr Henderson's article is to a previous blog by Aiden O'Neill QC, to which I responded here. My conclusion was (and remains) that one is entitled to respect for the right to hold beliefs, but not respect for those beliefs themselves. Just because a person is entitled to hold a belief does not mean that another person has to pay for it, or suffer unlawful discrimination because of it. What is unworkable is trying to determine when and how people are entitled to exemptions from the general law because of a professed religious belief - or belief which they say should be elevated to the same status as religion.
Mr Henderson observes that
... the principle of non-discrimination on grounds of sexual orientation is also hugely important, and carving out exceptions would make it meaningless. Reconciling the two is difficult, but there must be a means of doing so that ensures religious freedom is more than just the freedom to believe what you want in private, and which celebrates and protects the fact that we live in a society which tolerates all kinds of different belief systems.
The problem is that the moment religion enters the public domain one is forced to pick and choose which religions and which of their practices are to be permitted and which are not. This is not a straightforward exercise, to say the least. A private member's bill has recently been introduced to the Lords to address one example, and it has provoked some illuminating if disturbing discussion in Hansard.
Still, I cannot help but think that the courts are not always the best way to deal with disagreements. By using the cudgel of the state's coercive powers to prevent all manifestations of beliefs that we find objectionable, we are in danger of replacing one form of intolerance with another. It is not as though the B&B proprietors in this case or in Bull were out to ban homosexuality or otherwise oppress gay people; they simply had what others would find old fashioned views about marriage. Nor is it their fault that gay marriage is not presently lawful. Mr Henderson correctly applauds the relatively civil fashion in which the dispute was conducted (in contradistinction to others who dipped their oars into the matter), but given that civility I wonder if litigation was really necessary.
Then again, let us look to the not-so-distant past and a different form of discrimination. In the mid-1970s the Sex Discrimination Act came into force. Yet in some well-known cases that followed soon after(1), elderly male judges ignored the plain meaning of the Act and everything that had ever been said about its purpose. Instead they announced found that separate treatment of men and women might be justified on the grounds of “chivalry and administrative convenience” or disregarded as de minimus.
The judgments read like quaint pieces of social history to modern readers. Perhaps the judges of the day did not see what the fuss was about, or felt that their views were nothing more than “common sense” – as indeed they probably were to an earlier generation. But just as we would now insist in a similar case that the law be applied and the discrimination against women outlawed, so we must decide cases on discrimination involving sexual orientation in the same fashion – unlawful discrimination is unlawful discrimination.
(1) See eg Peake v Automotive Products Ltd [1978] Q.B. 233, where Lord Denning MR offered in the context of different treatment of male and female factory workers "I must say it would be very wrong to my mind if this statute were thought to obliterate the differences between men and women or to do away with the chivalry and courtesy which we expect mankind to give womankind. The natural differences of sex must be regarded even in the interpretation of an Act of Parliament."
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