Reasonable adjustments for religion: the EHRC explains all

Commission proposes ‘reasonable accommodation’ for religion or belief is needed

That’s the headline of the EHRC press release from Tuesday this week, when it announced that it was going to intervene in 4 controversial cases currently before the European Court of Human Rights in Strasbourg. The UK courts have come in for considerable criticism from religious groups over their allegedly pro-secular and anti-Christian stance, particularly over the thorny issue of where religious freedom meets gay rights. How is this going to be resolved?

The cases

The Strasbourg cases fall into two camps:

Religion and sexual orientation

  • Ladele: Local authority registrar who refused to perform civil partnership ceremonies based on her Christian disapproval of same-sex unions. Court of Appeal ruled her dismissal was not discriminatory.
  • MacFarlane: Marriage guidance counsellor who refused to counsel same-sex couples, for same reason. Court of Appeal followed Ladele.

Uniform policies and the Christian cross

  • Eweida: Airline worker who wanted to wear cross on necklace outside her clothes, as an expression of her Christian faith, in breach of BA’s uniform policy which banned visible jewellery. Court of Appeal held no discrimination. BA have changed their policy in any case.
  • Chaplin: Nurse who wanted to wear cross or crucifix visibly on necklace, in breach of hospital health and safety rules banning all necklaces since they could be grabbed by disturbed patients. Employment tribunal dismissed her discrimination claim.

Their applications to Strasbourg are here (Ladele and Macfarlane) and here (Eweida and Chaplin).

The EHRC press release says, rather boldly, that “Judges have interpreted the law too narrowly in religion or belief discrimination claims”, and proposes some kind of “reasonable accommodations” or “reasonable adjustments” solution, possibly similar to that in disability discrimination cases, to enable people’s religious convictions to be given more leeway in the workplace.

Outrage

This has, of course, prompted outrage. It’s hardly surprising in many ways, the commission’s press release was rather ambiguous as to what exactly was being proposed, and it could easily be interpreted as giving the impression that actually the commission would like  employees to be allowed a legitimate outlet for their homophobia at work, provided it is religiously motivated.

But we may have misread the EHRC’s intentions. (Actually, that’s too generous; they didn’t explain it properly). An email was subsequently circulated on Wednsesday by the EHRC’s “Director of Stakeholder Relations” to organisations on their “stakeholder” circulation list, but the text of it was for some reason not put on the website. This is unfortunate, since it could help dispel some of the unfortunate conclusions being drawn from their earlier release (and which has led, for example, to this stream of invective on the Guardian site).

The full text of their email is below. I really don’t know why they don’t put this online, but this is the blogosphere, so I’m doing it for them, in the interest of properly-informed debate.

The EHRC’s email to stakeholders

Dear colleague,

Following our press release sent to you earlier today (please see this attached below) the Commission has received requests for us to clarify our application to intervene in four cases at the European Court of Human Rights involving religious discrimination in the workplace. We’ve produced a Q and A which we hope will help clarify this application.

Q       Why did the Commission make applications to intervene in these four cases?

These four cases were already before European Court of Human Rights (ECtHR) before the Commission considered intervening and it is our expectation that all four are highly likely to be heard together because they involve the same legal question.

Commissioners on our Regulatory Committee took the view that, given our role as the National Human Rights Institution and equality regulator, it was not appropriate for these important cases to be heard without our input into the complex equality and human rights issues, including to ensure the principle of ‘reasonable accommodation’ is considered by the court.

We recognise that our stakeholders have important practical experience of how these issues affect the workplace and we intend to seek the views of our stakeholders before making submissions to the ECtHR . We will therefore be contacting our stakeholders as soon as we receive notification from the Court that our intervention is permitted for their views in the anticipated 3 week period during which we prepare our submissions.

Q.  Who is the Commission supporting?

The Court does not permit interventions to support one party or to comment on the facts. In our role as an intervener in existing legal proceedings, we do not support either party in a case but simply seek to aid the court with the benefit of the Commission’s policy input and interpretation of the law.

The purpose of our intervention is to explain that the law should consider how it may give better respect for religious rights within the workplace than has hitherto been the case, without diminishing the rights of others.  We want to change the view that there needs to be an either/or situation.  The spotlight and focus is placed too frequently on conflict in place of dialogue that could help identify other acceptable workable solutions.

The accommodation of rights is not a zero sum equation whereby one right cancels out or trumps another.  We believe that if the law and practice were considered more widely, then in many situations there would be scope for diverse rights to be respected.

Our view is that careful, sensitive and balanced treatment and consideration is discouraged by the approach taken by the courts to date.  In turn, this hinders the development and dissemination of better practice amongst those with duties. We believe that where possible ways should be found within the law of promoting the resolution of disputes at an early stage, without protracted, costly, complex legal proceedings that irretrievably damage relations between the parties.

Q       Does this intervention reflect a new approach to the Commission’s  work to ensure equality and prevent discrimination on grounds of sexual orientation?

Certainly not.  We do not and will not licence discrimination and we continue to believe in the importance of taking action to eliminate it. For example, we will continue to support the appeal to the Court of Appeal to defend the rights of the gay couple who were not allowed to share a double room at a hotel on behalf of civil partners Martyn Hall and Steve Preddy.

There is not – and cannot be -  any change in the Commission’s role as the NHRI and equality regulator with responsibility for preventing discrimination against people on grounds of sexual orientation, a responsibility that we aspire to fulfil to the best of our ability.

We would like to reassure our stakeholders that under no circumstances would the Commission condone or permit the refusal of public services to lesbian or gay people.

I hope you find this useful.

So there you have it. Comments and debate welcome below as to what any of this means.

About Mrs Markleham

Employment lawyer, discrimination lawyer, mildly peevish old woman.
This entry was posted in Press hyperbole, Religion, Sexual orientation. Bookmark the permalink.

3 Responses to Reasonable adjustments for religion: the EHRC explains all

  1. Rick says:

    I’m glad you posted this. I was going to do a stream of invective too, so you’ve saved me the embarassment. I’m still not happy about the EHRC sticking its oar in though. It has muddied the waters again just as they were starting to become clearer.

    At times like this I find myself sounding like a right-wing ranter and calling for the EHRC’s abolition. OK, that’s an over-reaction and I’m sure it does some good work. But wading in on something like this doesn’t help. It will only encourage all the other crackpots and chancers to have another go.

  2. Pingback: Making sense of the EHRC’s stance on religion | Mrs Markleham

  3. Pingback: Actually, Eweida has a point but she’ll still lose today | Mrs Markleham

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