A few weeks ago I blogged about the rather bizarre sounding messages that were coming from the Equality and Human Rights Commission on the subject of religious freedoms at work. They said they intervene in 4 cases going to the European Court of Human Rights at Strasbourg, to argue that UK law doesn’t adequately protect religious freedom. Two of those cases concern Christians who were sacked for refusing to provide services to same sex couples. The courts have been too harsh on Christians, the EHRC said, and the law should provide “reasonable accommodation” for religious views. There was an outcry: the EHRC thinks Christianity trumps gay rights, some people thought. Now, the Telegraph reports, the idea of reasonable accommodation has been dropped. Was the whole thing a sudden knee-jerk reaction? What’s actually wrong with the law, and what does the EHRC really want out of it?
As usual, Darren Newman (@DazNewman) has got there before me, in an article for XpertHR. Unfortunately I don’t subscribe to it, so I can’t read his no doubt erudite opinions on the matter. Darren, if you’re reading this, I’d be very interested in your article if you felt able to send me a copy, or if not I’d love to hear your thoughts in the comments section below.
Originally it appeared that the EHRC were planning to argue before the court that UK law should make some sort of “reasonable accommodations” provision for religious views, similar to the law on “reasonable adjustments” in disability discrimination cases (see my earlier post). They now seem to have dropped that argument from their proposed submissions to the court (saying it needs more thought) but are consulting over the idea more generally.
This leaves open the question of what they are going to argue about in court. However, at this point, they seem to have run out of ideas. Their consultation paper sets out the issues briefly, but doesn’t contain anything of substance on their proposed submissions, other than to say:
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.
A belief in early dispute resolution is all well and good, and hardly controversial. But I don’t think it qualifies as something that the European Court of Human Rights is going to be interested in.
On to the real issue…
The real issue here, in my view, is that the UK courts have actually got it wrong. Not necessarily from the perspective of the Convention on Human Rights (although that may well be the case), but simply from the perspective of UK law on indirect discrimination. If they were to approach the issue as believe the law requires, there would be no need for reasonable accommodations.
This is not to say that any of the four claimants in these cases (Ladele, Macfarlane, Eweida or Chaplin) should necessarily win. The tribunals had found that the employers’s actions in each case were objectively justified – in other words “a proportionate means of achieving a legitimate aim”, be it presenting a corporate image by way of a uniform, maintaining health and safety in hospitals, or offering services without discrimination on he basis of sexuality.
The problem is that in two of those cases – Eweida and Chaplin – the question of justification did not strictly speaking arise, because the claimants were unable to get over the hurdle of proving group disadvantage. They were unable to establish that the relevant “provision, criterion or practice” (in this case, the workplace dress code banning visible jewellery) puts persons who share their beliefs at a particular disadvantage.
The problem in my view arises from the way in which the Court of Appeal in Eweida defined the relevant group. (The tribunal in Chaplin followed similar reasoning). It reasoned that it’s not enough to show that you personally have been disadvantaged, you need to show a group disadvantage, based on people who share your belief. Since Ms Eweida is a Christian, the court thought that the relevant group should be Christians at the same workplace. It heard evidence from a Christian theologian, who said that the Christian Church does not require you to wear a cross. The court held that it was therefore a personal decision by Ms Eweida, and there was no evidence of other Christians at BA being disadvantaged. Job done, move along, nothing to see here.
This ignores the fact that belief is subjective. What Ms Eweida was seeking to protect was not the orthodox teaching of the Christian Church, but her own beliefs. Categorising that belief as Christian did not mean that the court should look at the impact of the jewellery ban on Christians as a whole, because Christians as a whole do not share Ms Eweida’s belief. The court should have looked at the impact on people who hold a belief in the importance of wearing a cross as a visible manifestation of their faith. Looked at in that way, the group disadvantage is obvious, and the fact that Ms Eweida could not find evidence of other employees at British Airways who shared that belief should not have stood in the way. There is no requirement in the legislation that tribunals can only look at the impact on employees at the same workplace. If the statistics are not there, the tribunal should be prepared to look at the position nationally, or just consult its own common sense. And I think it is a matter of common sense, if not just pure logic, that a requirement not to wear a cross necessarily “puts at a disadvantage” (or would put them at a disadvantage if it applied to them) all those people who fervently believe that they must wear a cross to please God. It is irrelevant that the belief may not be shared by all Christians, provided it qualifies as a religious or philosophical belief under the legislation.
You don’t even need to show that fellow believers are disadvantaged. You can show that they “would” be disadvantaged. “Would” is a conditional word – it needs to be followed somewhere by an “if”. But the court held that you can’t get too hypothetical with your “if”. You can’t say that the ban “would” put some hypothetical fellow believers at a disadvantage “if” they worked at the same employer. It said it means actual fellow believers who are working at at the employer, and the only “if” is “if the dress code applies to them”.
This, in my view, is a step too far. It places an undue hurdle in the way of a claimant. The real battleground in these cases should be about objective justification, and I share the EHRC’s concern that the courts have been placing undue hurdles in the way of litigants seeking to get to that issue. Perhaps removing group disadvantage would do it, since the courts are taking rather too literal a view of what group disadvantage entails. And there is no concept of group disadvantage in the European Convention on Human Rights. Article 9 protects your own personal religious belief, regardless of who else shares it. So perhaps the EHRC have a point. Even if they haven’t expressed it very well.
Comments are open below, and I welcome anyone telling me I’m talking rubbish.