A question of faith: Religious discrimination and article 9 ECHR claims

Peter ReadingDirector of Legal PolicyEquality and Human Rights Commission

Outline of presentation

1. A Question of faith: Equinet report on religious discrimination in Europe

2. UK cases of religious discrimination and article 9 claims in employment

3. UK cases of religious discrimination and article 9 claims: conflicts with sexual orientation

4. The future

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1. Equinet report: A question of faith

Why focus on religious discrimination?

Raises issues of religious identity versus- secularity and neutrality of the State and private

companies;- Conflicts with the fundamental rights of others

identified by sexual orientation, gender, children, race

- Issues of counter-terrorism and national security

Raises issues of relationship between religious discrimination and article 9 and 14 ECHR3

1. Equinet report: A question of faith

Report examines:

- The Legal framework: EU Equality Directives, national laws, and article 9 of the ECHR;

- Religious discrimination and article 9 cases in the sectors of employment, education, the provision of goods and services and banning full veil in public spaces;

- Religious discrimination and article 9 cases where there is a conflict with fundamental rights: sexual orientation, gender, children;

- Conclusions that can be drawn for change: eg GOR exception, Proposed Directive4

Framework Directive 2000/78/EC

Prohibits both direct and indirect and religious discrimination in employment

Proposed Directive to extend protection to provision of goods and services, education, housing but stalled

However many Member States have broader national laws

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Article 9: Freedom of religion

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

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Article 9: Freedom of religion

2. Freedom to manifest one’s religion or beliefs shall be subject only to

- such limitations as are prescribed by law and - are necessary in a democratic society in the

interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

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2. Religious discrimination and article 9 claims in employment

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Working FridaysAhmad v UK (1981) 4 EHRR 128

• Mr Ahmad complained that he was forced to resign as a teacher because he was refused permission to attend a mosque on Fridays to worship during work hours.

• European Commission of Human Rights concluded that there had been no interference with his Art 9 rights as freedom of religion is not absolute: the person’s particular circumstances had to be taken into account.

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Working SundaysStedman v UK (1997) 23 EHHR CD 168

• Mrs Stedman was a Christian who complained that a requirement to work on Sundays interfered with her Art 9 rights

• European Commission of Human Rights found that a refusal to work certain hours for religious reasons did not give rise to protection under Art 9:

• Mrs Stedman was not pressurised to change her religious views or prevented from manifesting her religion and was free to resign: no interference and her claim was ill founded.

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Eweida v British Airways [2010] EWCA CV 80, Court of Appealsee also Chaplin v Devon and Exeter Hospital [2010] ET Case Number: 17288862009

• Ms Eweida worked as a stewardess at British Airways• was refused permission to wear a necklace with a cross

over her uniform as this was in breach of her employer’s uniform policy

• Other religious groups such as Muslims and Sikhs were permitted to wear headscarfs and turbans;

• Eweida refused to do administrative work which would have not required a uniform

• BA eventually changed its policy to permit wearing of cross but would not refund salary while Eweida was suspended.

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Eweida v British Airways [2010] EWCA CV 80, Court of Appeal

• Claim of indirect religious discrimination and article 9 breach

• No indirect discrimination as:

- was a personal choice to wear the cross not a requirement of the faith

- she was unable to establish that the requirement to conceal her cross put Christians generally at a particular disadvantage;

- the policy was proportionate: never raised issue for seven years and refused alternative role

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Eweida v British Airways [2010] EWCA CV 80, Court of Appeal

Article 9 claim rejected:

- Article 9 does not protect every act motivated by religion;

- No interference with article 9 where person voluntarily undertakes employment role and they can continue to manifest their religion outside employment

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Eweida v UK, Chaplin v UK, ECtHRClaimed breaches of articles 9 and 14.

British domestic religious discrimination law must be interpreted compatibly with the Human Rights Act and the ECHR (article 9 and 14)

EHRC arguments that interpretation by British domestic courts of religious discrimination law not compliant with article 9

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Eweida v UK, Chaplin v UK, ECtHREHRC arguments:

• Do not necessarily need to establish manifestation is required by religion (eg Jakobski v Poland (2010) 30 BHRC 417, R (Bashir) v Independent Adjudicator [2011] EWHC 1108

• Choice: too high threshold for establishing article 9 interference, insufficient consideration of justification

• Establishing group rather than individual disadvantage may not always be appropriate for religion re article 14

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NB R(Bashir) v The Independent Adjudicator [2011] EWHC 1108

• Prison had a policy of conducting random drug tests. Claimant was a devout Muslim and was fasting for three days and could not provide a urine sample

• Prison policy made adjustments during Ramadan festival but not for voluntary fast.

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NB R(Bashir) v The Independent Adjudicator [2011] EWHC 1108

• Bashir was disciplined for failing to give urine sample to drug test with an increased sentence.

• Claimed a breach of article 9.• Government argued either there was no

interference with article 9 or if so was proportionate

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NB R(Bashir) v The Independent Adjudicator [2011] EWHC 1108

• Failure to properly consider and apply article 9 : no need to establish that manifestation mandatory

• Failure to consider “making adjustments”

• Quashed decision to increase sentence

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3. Religious discrimination and article 9 claims: conflicts with sexual orientation

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Ladele v Islington Borough Council [2009] EWCA CV 1357, Court of Appeal

 Ms Ladele, a Registrar of Marriages in Islington Council

Claimed she was discriminated against for refusing on religious grounds to carry out civil partnership ceremonies.

Dignity at work policy included non discrimination in provision of services of Council

Some other councils made adjustments to allow registrars not to perform civil partnerships

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Ladele v Islington Borough Council Discrimination claim[2009] EWCA CV 1357, Court of Appeal

Indirect discrimination was objectively justified for the following reasons:

 – would undermine the Council's commitment

to their non discrimination objectives.

– Ms Ladele was employed in a public job working for a public authority and she was required to perform a secular task.

– Her refusal to perform that task amounted to discrimination against lesbian and gay service users. 21

Ladele – Article 9 claim

Court applied the following principles:

• ‘Article 9 does not require that one should be allowed to manifest one’s religion at any time and place of one’s own choosing.’

• The right to manifest a religion can be appropriately limited to protect the fundamental rights of others, in this case gay and lesbian services users of the Council

• Relevant that Sexual Orientation Regulations 2007 prohibiting discrimination in provision of goods and services had been introduced

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McFarlane v Relate Avon Ltd 2010/EWCA/Civ B1 (EAT)

 • Employer provided relationship counselling • Employer had a policy to provide services to

all persons without discrimination.• McFarlane sought to be exempted from

providing counselling to same sex couples on religious grounds

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McFarlane Relate Avon 2010/EWCA/Civ B1

 • Claims of direct and indirect religious

discrimination• Both claims dismissed by EAT citing

Ladele • Policy of preventing discrimination was a

proportionate means of achieving a legitimate aim therefore indirect discrimination was justified

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Ladele v UK and McFarlane v UK, ECtHR

 Claims of article 9 and 14 breaches. EHRC submissions

• Correct principles applied in cases• Limiting manifestation of religions will

usually be justified where the policy or practice seeks to protect others from discrimination

• Particularly important where a public role such as in Ladele

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4. The future • Eweida, Chaplin, Ladele and McFarlane: important to

examine relationship between EU religious discrimination law and article 9 (EU accession to ECHR)

• Need for Proposed Directive to be introduced to harmonise and improve protection

• Guidance by European Commission on dealing with religious discrimination cases?

• Reasonable accommodation provision for religion? The Canadian model

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