RELIGION AND POLITICS IN THE WORKPLACE

Transcription

1 RELIGION AND POLITICS IN THE WORKPLACE Respecting people s religious and philosophical beliefs at work can be more challenging than it might seem. Different employees manifest their beliefs in different and often complex ways; sometimes by means that do not seem compatible with genuine business requirements such as uniform policies or hours of work. In other situations, respecting the rights of those manifesting their religion might be in conflict with rules or policies designed to protect the equality rights of other employees, such as those of homosexual employees or those of a different religion. This seminar examines the protections against discrimination on grounds of religion or belief in the Equality Act 2010 ( EA ) and the rights afforded to employees to manifest their religion under the European Convention. We shall explore key concepts of the domestic legislation such as: what is a belief; to what extent are political beliefs protected; and the difficult concept of indirect discrimination as a cause of action. We shall lastly examine the approach taken under Article 9 of the Convention, how this might differ to that currently taken by the domestic courts and what needs to happen to remedy any conflict between the two. THE SCOPE OF PROTECTION: The Meaning of Religion and Belief 1. The scope of the EA s religion and belief protections is wide. This was similarly the case with the EA s predecessor: the Employment Equality (Religion and Belief) Regulations 2003 ( the 2003 Regs ). 2. The definition of religion (if it can be called that) under section 10 of the EA was borrowed from the 2003 Regs and is any religion and also envisages a lack of religion. 3. The definition of belief is any religious or philosophical belief and again this is meant to include a lack of belief. 4. These definitions are deliberately designed to be broad so that the EA s provisions can be interpreted in line with a similarly wide interpretation of the concepts protected under Article 9 of the European Convention (freedom of thought, conscience and religion). 1

2 5. The main limitation of Article 9, as described by the explanatory notes to the EA, is supposedly that the religion or belief invoked must have a clear structure and belief system. It is also made clear, however, that a particular denomination or sect within a religion will be capable of being considered a religion or belief in its own right e.g. Protestantism or Catholicism within the wider Christian religion. 6. Case law from Strasbourg has held that Article 9 s protections only extend to beliefs that have a sufficient cogency, seriousness, cohesion and importance. There is also a fairly vague but important qualitative restriction: a religion or belief system will not be protected unless it is worthy of respect in a civilized society. Beliefs which can be said to be incompatible with human dignity are not protected (see Campbell v UK [1982] 4 EHRR 293). 7. It appears that the courts will be slow to find that an individual holds any belief (whether religious or philosophical) where the purported belief is really an opinion based in a perceived logic or an assessment of what evidence is available and what may be lacking. The EAT in McClintock v DCA [2008] IRLR 29 refused to interfere with a Tribunal judgment that a magistrate who objected to dealing with adoptions involving same sex couples, was not protected under the regulations. This was because his objection was based on his view that there was insufficient scientific evidence that same sex adoptions were in the interests of the child. 8. The domestic courts have long expressed some understandable reluctance in engaging in an exercise in defining what is and what is not a religious faith. For example, in R (Williamson & Others) v Secretary of State for Education and Employment [2003] QB 1300 Rix LJ cautioned: I am concerned that [a court] is not only ill equipped, but that it is lacks in this case the conventional means by which it would normally proceed to make such distinctions, which is evidence. I am in any event uneasy about the efficacy of such evidence: one of the problems of religion is the diversity of belief even within the umbrella of a single faith. 9. Nonetheless, the courts have had to make some effort to offer a more prescriptive definition than is offered in the wide statutory language, paying lip 2

3 service to some of the restrictions already laid down by the Strasbourg jurisprudence. How successful these efforts have been is a moot point but it is in the area of philosophical belief that they have perhaps been most pronounced. 10. The leading case on philosophical belief is still Grainger Plc v Nicholson [2010] IRLR 4, which concerned an employee who claimed that his belief in the catastrophic effects of climate change and his moral duty to mitigate these effects amounted to a philosophical belief for the purposes of the EA s predecessor 2003 Regs. 11. In upholding the decision of the Tribunal that Mr Grainger s belief did fall within the definition and thus capable of protection under the Regulations, the EAT and Burton J issued the following guidance on the limits of the definition of philosophical belief: The belief must be genuinely held; It must be a belief and not an opinion or view point based on the present state of information available (this requirement has its roots in the McClintock decision); It must be a belief as to a weighty and substantial aspect of human life and behaviour; It must be of a certain level of cogency, seriousness, cohesion and importance; It must be worthy of respect in democratic society, be not incompatible with human dignity and not in conflict with the fundamental rights of others (these last two requirements have been lifted from the ECtHR s judgment in Campbell see above). 12. Following Grainger, the EAT made a further attempt at examining the meaning of philosophical belief in Power v Greater Manchester Police Authority UKEAT/0434/09/DA. An employer appealed against a Tribunal s ruling that the Claimants spiritualist beliefs there is life after death and the dead can be contacted through mediums were worthy of respect in a democratic society and had sufficient cogency, seriousness, cohesion and importance to 3

4 fall into the category of a philosophical beliefs for the purposes of the 2003 Regulations. 13. HHJ Peter Clark made a short shrift of the employer s argument that this view was perverse. He commented that the Tribunal had properly addressed the guidance in the earlier McClintock case and that it was entitled to conclude that the Claimant s beliefs were philosophical beliefs. 14. Post Grainger, there have also been a series of first instance Tribunal decisions on what kinds of purported philosophical beliefs can and cannot satisfy the above requirements. 15. Some examples of beliefs that have been found to constituted protected philosophical beliefs: A belief in being truthful to customers. Hawkins v Universal Utilities Ltd t/a Unicom ( /12): a Tribunal held that Christian telesales worker who believed that he should not be deceiving his potential customers over the phone could have that belief protected under the EA On the facts, however, although the belief would have been protected in theory, the Claimant lost at the next hurdle which was establishing a relevant provision criterion or practice for the purposes of an indirect discrimination claim (see below): he did not adduce sufficient evidence that his employer had actually required him to lie to potential customers. An animal rights activists views on fox hunting. Hashman v Orchard Park Garden Centre: this Claimant successfully argued that his fervent objection to fox hunting amounted to a philosophical beliefs. Employment Judge Guyer of Southampton Employment Tribunal, in examining the Grainger guidelines, opined that the Claimant had a genuine belief in the sanctity of life, which extended to his fervent anti-foxhunting belief. On its face, this reasoning is difficult to reconcile with the insistence of the EAT in Grainger that the belief relate to some weight and substantial aspect of human life and behaviour. EJ Guyer accepted that the Claimant thought very deeply about the issues arising from his beliefs and that he attempted to live his life in accordance with those beliefs. 4

5 Humanist beliefs. Streatfeild v London Philharmonic Orchestra Ltd: Despite striking out the Claimant s claim for direct discrimination on the merits, a Tribunal found as a preliminary issue that humanism was capable of amounting to a philosophical belief. The Tribunal noted the non-binding guidance within the explanatory notes to the EA and the Equality Code of Practice to the effect that humanism was an example of such a qualifying belief. It noted that humanism was defined as a rationalist outlook or system of thought attaching primary importance to human rather than divine or supernatural matters and satisfied the Grainger test. 16. The following beliefs, by contrast, have been found to fall short of the Grainger definition: 7/7 conspiracy theories. Farrell v South Yorkshire Police Authority [2011] EqLR 935: in this bizarre case, a Tribunal took the unsurprising decision of holding that a claimant s view that the attacks on 9/11 and 7/7 were part of satanic conspiracy by a new world order was not capable of protection. The Tribunal held that the Claimants view lacked a certain level of cogency, seriousness, cohesion and importance as necessary under the fourth limb of Grainger. Belief in Remembrance Sunday. Lisk v Shield Guardian Co Ltd: At a PHR an employment judge held that an ex-serviceman s purported belief that we should pay our respects to those who have given lives for us by wearing a poppy from 2 November to Remembrance Sunday was not a philosophical belief. The Tribunal judge did not seek to question the seriousness of Mr Lisk s beliefs but did comment, applying Grainger, that the practice of wearing a poppy lacked sufficient cogency, cohesion and importance for it to qualify. 17. Lastly, it is a trite point that any belief (whether religious or philosophical) must be genuinely held in order to attract the protections of the EA. This point was made abundantly clear by the House of Lords in the Williamson case [2005] UKHL Lord Bingham at para 22 of the judgment said this: 5

6 When the genuineness of a claimant's professed belief is an issue in the proceedings the court will inquire into and decide this issue as a question of fact. This is a limited inquiry. The court is concerned to ensure an assertion of religious belief is made in good faith: "neither fictitious, nor capricious, and that it is not an artifice", to adopt the felicitous phrase of Iacobucci J in the decision of the Supreme Court of Canada in Syndicat Northcrest v Amselem (2004) 241 DLR (4th) 1, 27, para 52. But, emphatically, it is not for the court to embark on an inquiry into the asserted belief and judge its "validity" by some objective standard such as the source material upon which the claimant founds his belief or the orthodox teaching of the religion in question or the extent to which the claimant's belief conforms to or differs from the views of others professing the same religion Political beliefs 19. What remains somewhat unclear is the extent to which the Grainger guidelines enable political beliefs to qualify as protected philosophical beliefs under the EA. 20. In Grainger itself Burton J did comment (albeit obiter) that in his opinion there is nothing preventing a belief based on a political philosophy, or indeed on science, from qualifying as a philosophical belief. 21. However, there must be at least some inherent tension between this comment, insofar as it relates to science, and the principle espoused in McClintock (and adopted in Grainger) that a belief is not a belief if it is really an opinion based on the present state of evidence or information available. Surely many scientific beliefs are based on precisely this. 22. On political beliefs, it is worth reciting what Burton J said in full as his comments, although obiter, are instructive as to the way in which these beliefs might be examined as potential philosophical beliefs by future Tribunals: I turn to Mr Bowers next suggested limitation, relating to political belief. As appears from the passage in Hansard, the Attorney General suggested that support of a political party might not meet the description of a philosophical 6

7 belief. That must surely be so, but that does not mean that a belief in a political philosophy or doctrine would not qualify. The Attorney General s other example of a suggested non-candidate was a belief in the supreme nature of the Jedi Knights, and this would fail on the basis of non-compliance with at least four of the limitations suggested above. However, belief in the political philosophies of Socialism, Marxism, Communism or free-market Capitalism might qualify. There is nothing to my mind in the make-up of a philosophical belief particularly against the background of Article 14 of the EHCR referred to above which would disqualify a belief based on a political philosophy. The belief asserted by the Respondent in this case, by reference to his alleged philosophical belief in anthropogenic climate change, if established, is likely to be characterised as a political belief: see paragraphs 3 and 4 in my judgment in relation to Vice- President Gore s film in R (Dimmock) v Secretary of State for Education and Skills [2008] 1 AER 367. But I do not see that as a ground for excluding it, if it be otherwise qualified as a genuinely held philosophical belief. It seemed to me that the real concern that Mr Bowers had, and one which the court would naturally share, would be the fear that reliance could be placed upon an alleged philosophical belief based on a political philosophy which could be characterised as objectionable: a racist or homophobic political philosophy for example. In my judgment, the way to deal with that would be to conclude that it offended against the requirement set out in paragraph 36 of Campbell, that the belief relied on must be worthy of respect in a democratic society and not incompatible with human dignity or, in accordance with paragraph 23 of Williamson, a belief consistent with basic standards of human dignity or integrity. Paragraph 36 in Campbell expressly refers, as the source of this requirement/caveat to Article 17 of the ECHR, which deals with Prohibition of abuse of rights. 23. And so it seems political beliefs can be philosophical beliefs. Indeed Mr Grainger s own belief in catastrophic climate change could probably be described as political. 24. There appear to be two important qualifications to this, however: 7

8 It is likely that reliance membership of, or support for, a political party alone will be insufficient. This should be common sense. Members or those that support political parties often do so somewhat blindly and without holding a set of coherent or cohesive beliefs in the political philosophy underlying what that political party might advocate in its manifesto. It should therefore be insufficient for a Claimant to say that he/she has a philosophical belief in the Tory or Labour parties. Were the Claimant able to demonstrate, however, a belief in free-market capitalism or Marxist socialism then, provided the Grainger test is satisfied, there is nothing in the political nature of these beliefs which should exclude them from protection; The main stopper, it would seem, acting against opening up the EA s protections to those harbouring more extremist views, whether they be paramilitary Irish republicans or fascist supports of the EDL, is the Campbell test. A form of republicanism which supports violence as a means to achieve its aims will not be worthy of respect in a democratic society just as the views of those founded on racial hatred will surely not be a belief system capable of being consistent with human dignity. 25. In a first instance decision, Kelly v Unison ( /08) an Employment Tribunal, in applying the Campbell part of the Grainger test, refused to extend the EA s protections to a group of trade unionists who held Marxist/Trotskyist views where these views involved a belief in the right to break the law to achieve political aims and the right to deprive individuals of their homes and property. 26. This begs the question whether, despite the words of Burton J above, any form of Marxism (which usually espouses revolution and the redistribution of wealth as a means of brining about change) will be capable of amounting to a philosophical belief. Political parties and unfair dismissal 27. Running parallel to the protections under the EA, has been a planned change in the law of unfair dismissal to enable those who alleged they have been 8

9 dismissed for their political opinions to bring a claim for unfair dismissal notwistanding a lack of qualifying service. 28. The Enterprise and Regulatory Reform Act 2013, which received royal assent on 25 April 2013, introduces the following additional clause to section 108 of the Employment Rights Act 1996: (4) Subsection (1) does not apply if the reason (or, if more than one, the principal reason) for the dismissal is, or relates to, the employee s political opinions or affiliation. 29. This amendment seeks to implement the decision of the European Court of Human Rights in Redfearn v UK [2013] In that case, Mr Redfearn, a bus driver, was dismissed because his membership of the British National Party (BNP) was said to put him at risk of attacks in an area with a large ethnic population. He alleged that he was really dismissed because of his political opinions or because he was affiliated to the BNP. 30. Interestingly, Mr Redfearn did not seek to rely on the old 2003 religion and belief regulations and instead brought his claim under the Race Relations Act The Court of Appeal rejected this claim without too much hesitation on the basis that the purpose of race discrimination rules was to combat the state of mind that breeds intolerance and not to protect it. 31. However, the European Court of Human Rights upheld his case on the narrower point that his right to freedom of association under Article 11 of the Convention had been infringed because the one year (as it was then) qualifying period for unfair dismissal under UK law left no room for a possible claim that Mr Redfearn was discriminated against on grounds of his political beliefs or affiliation. 32. It is important to remember that the amendment brought about in the Enterprise and Regulatory Reform Act does not make a dismissal on the basis of political opinion or affiliation automatically unfair. It simply gives a Tribunal jurisdiction to hear a complaint that an employee was dismissed on these grounds on normal principles without the need for the normal qualifying service (now two years). 9

10 33. In other words, a dismissal for an employee who is a member of a political party might still be capable of being fair if, in the normal way, an employer can show that there was a potentially fair reason for this decision (such as some other substantial reason) and this reason was a fair reason in all the circumstances. 34. It will be interesting to see what route politically connected dismissals will take. 35. Claims under the EA will necessarily have to tie the political belief in to an underlying philosophical belief capable of fulfilling the Grainger guidelines, whilst claims for unfair dismissal might still be capable of being defended if an employer can point to some other substantial reason. 36. One can envisage an argument being made by an employer that an employee s racist beliefs and public support of the violent and intimidating tactics of the EDL might be incompatible with the continuance of an employment relationship, particularly where there is a degree of reputational damage to the employer s business in consequence of the employee s extremist and publicised political beliefs. 37. As to whether the amendment to the ERA 1996 will encourage a wealth of further unfair dismissal claims based upon political discrimination, only time will tell. INDIRECT DISCRIMINATION 38. Whilst there are still many sad examples of direct religious discrimination in the workplace, the majority of recent case law dealing with this particular protected characteristic concerns claims for indirect discrimination and the interrelationship between the protections guarding against the same in domestic legislation and those contained within Article 9 of the Convention. 39. Where direct and indirect discrimination are often said to differ is whilst the former protects against disadvantages to individuals as a result of less favourable treatment, the later guards against group disadvantage. 10

11 40. In the field of religious beliefs, it is the requirement to demonstrate a group disadvantage that has often proven particularly burdensome to individual employees. Where such employees hold genuine but idiosyncratic beliefs in religious practices or requirements, it is not always easy for them to demonstrate that any disadvantage suffered by them is shared by a wider collection of more typical followers of the same religion. 41. The balance to be struck by the law in this area is making sure that the religious beliefs of the atypical person of faith do not go unprotected whilst also not overburdening employers by asking them to be sensitive to every single unusual and isolated religious practice. 42. Section 13 of the EA deals with indirect discrimination generally and provides as follows: 43. Group disadvantage is but one of four commonly cited elements of a claim for indirect discrimination. These are as follows and are helpfully described at paragraph 21 of the judgment of the EAT in Cherfi v G4S Security Services Ltd UKEAT/0397/10: The employer applies to the employee a provision criterion or practice ( PCP ); This PCP applied, or would apply equally to persons not of the same belief as the employee but which puts or would put persons of the same religion or belief as the employee at a particular disadvantage (referred to as group disadvantage above); The PCP in fact also put the employee as that disadvantage; and The Respondent cannot show that the PCP is a proportionate means of achieving a legitimate aim. PCPs 44. There is no specific definition of provision, criterion or practice in the EA and, as with other areas of discrimination law, it is for the Tribunal to determine what fits this definition. 11

12 45. In the field of discrimination on grounds of religion and belief, the following have been held to be capable of amounting to PCPs: A requirement that employees work on Sunday (see MBA v Mayor Burgesses of the London Borough of Merton UKEAT 0322/12 discussed below); A requirement to work continuously throughout the day and not to leave the workplace on Friday lunchtimes (see Cherfi discussed below); A requirement that teachers should not cover their faces when teaching (which may put Muslim women at a disadvantage) see Azmi v Kirkless Metropolitan Borough Council [2007] IRLR 484; A uniform policy that required personal jewellery (including items worn for religious reasons) should be concealed by uniform (as applied by BA in Eweida v British Airways see below) Evidence of group disadvantage 46. As mentioned above, once a PCP has been identified currently orthodoxy dictates that Tribunals and courts will ask a Claimant to identify a group, which is adversely affected, actually or potentially, by it. 47. Sedley LJ confirmed as much when Eweida v British Airways [2010] IRLR 322 reached the Court of Appeal. It is clear from Sedley LJ s endorsement of the following passage from the earlier EAT judgment that solidary disadvantage is insufficient: in order for indirect discrimination to be established, it must be possible to make some general statements which would be true about a religious group such that an employer ought reasonably to be able to appreciate that any particular provision may have a disparate adverse impact on the group. 48. The basis in statute for this approach is said to be the reference to persons [plural] of the same religion in section 10 of the EA and its predecessors. However, as we shall see such an approach does not seem to be easily 12

13 reconcilable with the wider approach adopted by the European Court of Human Rights insofar as Article 9 rights are concerned. 49. A Claimant may go about trying to prove a group disadvantage by reference not only to statistics but also to expert evidence e.g. by calling expert witnesses (such as religious scholars) to testify as to the make up, membership and requirements of a particular religious group. 50. Where any evidence purporting to show group disadvantage is rejected or other evidence in rebuttal is preferred Tribunals will have to properly addressed their minds as to why and explain as much in their reasons. 51. This point is demonstrated by the judgment of the EAT in Chatwal v Wandsworth Borough Council UKEAT/0487/10. In this case an employee appealed against a Tribunal s decision upon a PHR that he had failed to meet the necessary burden of proving a sufficient cohort of others holding the same belief so as to constitute a group. 52. The PCP in issue was a requirement that, in order to be able to use a communal kitchen, the employee was to take his turn in cleaning the company fridge. The employee, who was an Amritdhari Sikh and member of a particular revivalist organisation within the broad Sikh community (known as GNNSJ), said that it was a belief of this sub-group of the Sikh faith that they should not come into contact with meats or meat products. Consequently, he argued, the PCP put this group to a disadvantage given that they would inevitably come into contact with meats when cleaning out the communal fridge. 53. The Tribunal had made a finding that the Claimant had failed to establish by statistical or other evidence that there were a significant number of Amridhari Sikhs who were members of GNNSJ who may (like him) believe they were not permitted to come into contact with meat. However, on the specific facts of the case the EAT held that in coming that that view the Tribunal had not explained why it had apparently rejected the evidence of one faith leader to the effect that Amritdhari Sikhs could not touch meat and an expert s conclusion that some 1000 GSNNJ members in England shared Mr Chatwal s interpretation on this point. 13

14 54. The case was remitted back to the same Tribunal for it to properly consider this evidence and whether the Claimant had not met the burden of proving that significant group of others holding the same religious belief could not touch meat and were therefore disadvantaged by the rule. 55. The EAT stressed that in a case such as Mr Chatwal s where there was no statistical material advanced by the Claimant, it was all the more crucial for a Tribunal to address and weigh the other evidence they had heard and read as to whether there were sufficient others of the same belief as Mr Chatwal to constitute a group. 56. Whilst endorsing the test espoused by the EAT in Eweida above, the EAT expressed its frustration that there was no consensus within the case law as to how large (or small) the cohort of others or group must be in order to suffice in proving group disadvantage. 57. The difficulties for an employee in satisfying this requirement of domestic law that a group disadvantage be evidenced are illustrated by the problems faced by Mrs Eweida before the Tribunal, EAT and Court of Appeal. 58. Mrs Eweida was a Christian who complained that a policy applied by BA did not permit her to wear a cross on a necklace outside her uniform. She failed in all domestic courts up to and including the Court of Appeal (her application to appeal to the Supreme Court was refused) because she could not show that the BA policy on not displaying personal jewellery outside uniform put persons of the same religion or belief as her at a particular disadvantage. 59. As shall be seen further below, the Strasbourg court took a different approach and asked not whether there was a significant cohort of those sharing the Christian faith who displayed crosses (where Ms Eweida came unstuck) but whether there was a sufficiently close and direct nexus between the act concerned and the underlying belief. 60. Importantly, it is not necessary, in applying this direct nexus test, to ask whether the particular act that is said to manifest the religion (whether that be 14

15 wearing a cross not working on a Sunday) was a mandatory duty of the religion in question. 61. It remains to be seen whether this new test will be preferred over the previous group disadvantage test or whether indeed the two tests are even inconsistent with one another. After all, one approach of the appellate courts might be to apply a direct nexus test but still enquire, as part of assessing whether there is in fact a direct nexus, into whether others in the religion manifest their underlying belief in a similar way. 62. As the editors of Harvey point out: It could be argued that if the manifestation of belief is highly individual, so that there is only individual disadvantage, then it will not satisfy the test of being sufficiently close and having a direct nexus with the underlying belief to be protected. However, there are inevitably, going to be many shades of grey. Puts the Claimant to that disadvantage 63. It is worth remembering that the requirement under the EA s modern wording of indirect discrimination is simply for a Claimant so show that they are themselves put to a disadvantage. It is NOT necessary to ask whether the Claimant can comply with the PCP as was the test under the old definition of indirect discrimination under, for example, under the Sex Discrimination Act. 64. Elias P recognised this point in the Eweida commenting that under the new wording there is no specific link to non-compliance with a PCP and noting that a person could be considered part of a disadvantage group notwithstanding that they, in practice, had been reluctantly complying with the requirement. 65. Elias P did, however, concede that examples of people prepared to compromise strongly held religious beliefs in [this] way would be rare. 66. There is not yet a complete answer as to whether, in order to avail himself of the protections against indirect discrimination, an employer needs to make it clear to an employer that a particular provision, criterion or practice is putting 15

16 him at a disadvantage because of his religion and not for some other unrelated reason. 67. Logic and fairness surely dictates that he must do. If an employee objects to work on a weekend because of a Jewish religious belief in the observing the Sabbath but omits to cite this reason to his employer, it is difficult to see how the employer could properly apply their mind to what alternatives (such as a different rota or the provision of cover) could be put in place to prevent the requirement to work Sundays placing the employee at a disadvantage. 68. Elias P made his own opinion (albeit obiter) known on this point in McClintock, where he commented that it was not right to say that an appellate can allege interference with religious or philosophical beliefs whenever action is taken against him for a reason which is in fact connected to his religion, even though he chooses to conceal that fact from the defendant. 69. The editors of Harvey conclude that: what that seems to mean is that if an individual wishes to complain that conduct which is outwardly normal and with no obvious religious or philosophical connotations (such as food preferences or not working a rest day) is in fact part of some religious belief, then he must make that linkage clear to his employer. Objective justification 70. Unlike the first three elements of indirect discrimination, the burden on justifying a PCP (once group and individual disadvantage have been identified) rests with a Respondent (per Langstaff P in MBA v the Mayor and Burgesses of the London Borough of Merton UKEAT/0332/12). 71. A Respondent shows a requirement which indirectly discriminates on grounds of religion or belief is objectively justified by 1) showing that the measure in question corresponds to a real need or legitimate aim and 2) showing that the means used were appropriate and necessary to achieving that aim. This is the classic test of justification espoused by the ECJ in Bilka- Kaufhaus GmbH v Weber von Hartz [1986] ICR

17 72. This exercise involves a necessary weighing of the legitimate need of a Respondent s business against the seriousness of detriment to the disadvantaged group (per Mummery LJ in R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213 CA at para 151). 73. This balancing exercise must consider the disadvantage to the group as a whole and not focus solely on the individual Claimant (see Langstaff P at para 11 in the MBA case. 74. In the MBA case, the Claimant, a care worker in a Children s home, had been required to work on Sundays. She argued that this requirement placed some Christians at a disadvantage because of their observance of the Sabbath. A Tribunal decided that the employer s aim in seeking to ensure that full-time staff worked on Sundays in rotation to maintain care continuity was legitimate and objectively justified. However, in so concluding the Tribunal had remarked that not working on Sundays did not appear to be core to Christian belief. 75. This was seemingly a qualitative assessment of the importance of one part of the Claimant s religion and the Claimant argued that this was offensive and not part of the Tribunal s proper task. 76. The EAT disagreed and said that whilst the comment was perhaps regrettable it had to be viewed in context. The Tribunal were attempting to reflect the evidence before them from an Anglican bishop that only some Christians felt obliged to abstain from Sunday work. The Tribunal was not attempting to tell Christians what was important to their faith. The comment was mentioned in the context of the weighing exercise envisaged by Mummery LJ in R (Elias) (above) and was a comment on the degree to which Christians numerically would be affected. 77. This case shows that it will not necessarily be impermissible for a Tribunal to consider and comment on how core or central a belief is to a faith at the justification stage (i.e. when weighing the extent of the detriment to the group against the employer s aim). 17

18 78. The message from the EAT appears to be that it will be permissible to mention how core a belief is as part of a quantitative assessment but not from a qualitative one (i.e. one that makes normative judgments about how important certain beliefs are). The following passage of the judgment of the EAT at para 46 seems to confirm this: Whereas [the Tribunal] has no right to determine matters of faith qualitatively, the weight to be given to the degree of interference with a religious belief will inevitably differ depending upon the number of believers who will be affected by the particular PCP concerned. If, for instance, on the evidence before a Tribunal, it is shown that a minority of those who ascribe to a particular belief have a specific view, then a PCP which affects the whole group, but only that small part of the group of believers adversely, will be of lesser weight than a PCP which adversely affects every one. 79. In running any objective justification defence, it will always assist a Respondent in establishing proportionality (that the PCP was appropriate and necessary in achieving the aim) to demonstrate that it has been flexible and considered alternatives. 80. If an employee is unable to work a particular day of the week it may be necessary to first consider whether they are really needed on that day or whether a change in the rota can be arranged by utilising existing employees to cover. 81. The case of Cherfi v G4S Security Services Ltd UKEAT/0379/10 demonstrates how Tribunals will apply the test for objective justification in practice and the evidence they will consider. 82. Mr Cherfi was a security officer who was refused permission to leave site on Fridays in the middle of the day to attend mosque. His employers said that it was a requirement of their contract with their client to make sure that a specific number of security officers were on site for the full duration of operating hours. 83. In upholding the Tribunal s decision that the interference was objectively justified, the EAT considered the following: 18

19 There was evidence produced by the Respondent of not only financial penalties if it could not provide full cover for the operating hours but a danger that the contract as a whole would be in danger if a full complement of staff was not on site throughout; The Respondent could show that alternatives were offered to the Claimant but these were refused. These included exploring with the Claimant whether he was prepared to amend his current contract of employment to a Monday to Thursday with the option of working Saturday or Sunday. There was work available on those days at other sites so that he would not suffer financially if he chose not to work on Fridays; Evidence was led that it would be financially impractical to employ the Claimant for a part-shift only on a Friday. There was a need to obtain another security guard for the Claimant s lunch hour and having to pay the replacement for a whole shift (whole shifts being the basis on which the guards were employed); 84. The Tribunal had considered all of the above and had undertaken a proper balancing act. It had been entitled to come to the view that the requirement to work all of Fridays was a proportionate means of achieving the aim of fulfilling a commercial contract. THE ARTICLE 9 DIMENSION: the future of religion in the workplace 85. The legislation preceding the EA 2010 hit the headlines recently in four landmark cases in the European Court of Human Rights, which deal with the compatibility of UK employment rights with Article 9 (freedom of religion) of the European Convention. Eweida and others v UK (15 January 2013) ECHR 012 (Appl Nos 48420/10, 59842/10, 51671/10 and 36516/10) 86. In these politically controversial cases, four claimants brought claims for religious discrimination in the UK Employment Tribunals: Ms Eweida, Ms Chaplin, Ms Ladele and Mr McFarlane. All relied on the Employment Equality (Religion or Belief) Regulations 2003 (which are replicated in similar language 19

20 by the provisions of the EA). 87. Both the Eweida and Chaplin cases involved the conflict between an employee s right to wear religious symbols at work and their employer s legitimate aims in restricting this right. 88. Both Ladele and McFarlane involved the conflict between an employee s religious beliefs and a requirement of their job that they carry out certain services for the benefit of gay people. 89. Only the first claimant, Ms Eweida was successful in persuading the European Court of Human Rights that her employers had violated her Article 9 rights to manifest her religion at her place of work. It is worth examining the facts and conclusions in each case in order to analysis the differences between the highly fact sensitive claims and the courts approach to justification and proportionality: Mrs Eweida s claim 90. As mentioned above, Mrs Eweida was a British Airways employee and a Pentecostal Christian. She went home from her job as a check-in worker for BA at Heathrow Airport after being told that she must conceal her silver cross necklace. At the time (in October 2006) BA operated a uniform code, which banned the wearing of any visible item of adornment around the neck. BA eventually changed their uniform policy to allow staff to display a faith or charity symbol but Mrs Eweida stayed away from work until this change took place in February 2007 and was not paid for the time she was absent. She sued BA for indirect religious discrimination under Reg. 3 of the Employment Equality (Religion or Belief) Regulations The Tribunal found that the visible bearing of a cross was not a requirement of her Christian faith but her personal choice and that she had failed to establish that BA s policy had put Christians in general at a group disadvantage within the meaning of Regulation 3, which provides as follows: (1) For the purposes of these Regulations, a person ("A") discriminates against another person ("B") if 20

21 ... (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. 92. Her appeal to the Court of Appeal (Eweida v British Airways Plc [2010] EWCA Civ 80) was rejected and the Supreme Court refused her leave to appeal. 93. The ECtHR had to examine whether Ms Eweida s right to freely manifest her religion under Article 9 had been sufficiently protected under domestic employment law. 94. Article 9 of the European Convention provides: 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and 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. 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. Article 14 provides: The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 95. The UK is not uncommon in not having provisions specifically regulating the 21

22 wearing of religious clothing and symbols in the workplace. The Court concluded that the absence of such specific regulation did not breach Ms Eweida s Article 9 right because the measures BA had taken had been examined in detail by the domestic courts. 96. However, the Court went on to conclude that in her case a fair balance had not been struck by the domestic courts between her desire to manifest her religious belief and the ability to communicate that to others on the one hand and her employer s wish to protect a certain corporate image by operating its uniform policy. 97. BA s wish in this regard did amount to a legitimate aim but the ban was not a proportionate means of achieving that aim. A number of factors appear to have informed this decision on proportionality: Other BA employees had previously been authorised to wear items of religious clothing such as turbans and hijabs without any negative impact on BA s brand or image; The fact that BA had subsequently amended the uniform code to allow for the visible wearing of religious symbolic jewellery showed that the earlier prohibition had not been of crucial importance to the company. 98. Accordingly, the judges (by 5 votes to 2) ruled that domestic UK authorities had failed to sufficiently protect Ms Eweida s right to manifest her religion. The UK was ordered to pay Ms Eweida 2,000 Euros in compensation and 30,000 in costs and expenses. Ms Chaplin 99. Mrs Chaplin, a geriatrics nurse, similarly complained that her employer, the Royal Devon and Exeter Foundation NHS Trust ( the Trust ), had asked her not to display her cross necklace The difference in Chaplin, however, was that the Trust was concerned not with its corporate image but with health and safety. They claimed that the necklace breached its health and safety guidelines because it could be grabbed by a patient and potentially hurt Mrs Chaplin. When she refused to remove or conceal the necklace, the Claimant was asked to work behind a 22

23 desk instead of with patients Her complaint of indirect religious discrimination was similarly dismissed by the Tribunal, which held that the hospital s position had been based on health and safety grounds and there was no evidence that anyone other than the applicant had been put at a particular disadvantage. Her appeal to the EAT was unsuccessful and she was refused leave to appeal to the Court of Appeal in the light of that court s decision in the Eweida case Despite the very similar facts of Mrs Chaplin s case, the ECtHR unanimously found that there had been no violation of Article 9 (either when taken alone or in conjunction with Article 14 (prohibition of discrimination)). The interference by the Trust with Mrs Chaplin s rights had been a proportionate means of achieving a legitimate aim. What appears to have weighed heavily with the Court on the question of proportionality and in distinguishing its own judgment in Eweida was: The reason for asking this employee to remove the cross, namely the protection of health and safety on a hospital ward, was inherently more important than that which applied in respect of Ms Eweida; and Hospital managers were in a better position than the courts to assess and make decisions on clinical safety. This was particular the case in respect of an international court such as the ECtHR, which had heard no direct evidence on the health and safety concerns The Court therefore found that the requirement that asked Mrs Chaplin to remove her cross had not been disproportionate and that the interference that requirement had on her Article 9 rights had been necessary in a democratic society. Ms Ladele s case 104. Both Ms Ladele and Mr McFarlane were Christians who believed that same-sex relationships are contrary to God s law and insisted that it was incompatible with their beliefs to do anything to condone homosexuality Ms Ladele was a registrar practicing in the London Borough of Islington ( the Council ). When the UK implemented in the Civil Partnerships 23

24 Act, she was informed that she would in the future be required to officiate ceremonies under the Act between homosexual couples. When she refused disciplinary proceedings ensued and she was told that she could be dismissed because her refusal placed her in breach of the Council s equality and diversity policy Her initial complaint to the Employment Tribunal was successful, the Tribunal agreed that she had been harassed under the 2003 Regulations The ECtHR concluded (by 5 votes to 2) that the Council, in operating is equality and diversity policy, was acting to promote equal opportunities and to require employees to act in a way which did not discriminate against others. This pursued a legitimate aim in the securing the rights of others, in particular same-sex couples The Court stressed, after reviewing previous jurisprudence from Strasbourg, that any difference in treatment based on sexual orientation required particularly serious justification. The UK authorities were therefore afforded a wide margin of appreciation when it came to striking a balance between the employer s right to secure the right of others not to suffer discrimination because of sexual orientation and Ms Ladele s right to manifest her religion Having decided the right balance had been struck by the UK authorities, it followed that there was no violation with either Article 9 alone or Article 9 in conjunction with Article 14. Any interference with these rights was justified as being necessary in a democratic society In an outspoken dissenting judgment, however, two of the ECtHR s judges, Nebojsa Vucinic and Vincent de Gaetano, disagreed with the decision of the majority and opined that Ms Ladele s right to freedom of conscience under Article 9 had been infringed. They commented that no one should be forced to act against one s conscience or be penalised for refusing to act against one s conscience. The dissenting judges argued that where a conscientious objection is engaged this will involve not just a negative right but a positive obligation on the state to take reasonable and appropriate measures to protect the rights of the conscientious objector. They distinguished Mr McFarlane s case below by pointing out that when Ms 24

25 Ladele started in her role she could not have known that she would ever have to officiate civil partnerships as the Act was not then in force. Mr McFarlane 111. Mr McFarlane s case was very similar to Ms Ladele s. He was a relationship counselor who was dismissed by his employer, Relate Avon, after she had objected to giving therapy to same-sex couples. Similarly, he claimed that the requirement to counsel such couples in effect asked him to promote gay sex and the requirement therefore placed him at a particular disadvantage because his Christian believes meant that he was unable to do the same His claim for religious discrimination was dismissed by the Tribunal and he had an appeal rejected in the EAT. The Court of Appeal refused him leave as there was no reasonable prospect of his case being sensibly distinguished from Ms Ladele s A unanimous ECtHR reached the same conclusion as the majority in Ladele and for largely the same reasons. Any interference with Mr McFarlane s Article 9 and 14 rights was justified because the requirement had been a proportionate means of achieving the same legitimate aim of protecting the rights of sex-same couples to be free from different treatment The judgments appear to be the end of the road for Ms Ladele, Mr McFarlane and Ms Chaplin. On 27 May 2013 the ECtHR refused requests by the three losing Claimants to appeal to the Grand Chamber of the court. Comment 115. Generally, I would argue that the ECtHR should be applauded for a well reasoned judgment and for striking the right balance in these four difficult cases On the face of it, the Eweida and Chaplin decisions appear somewhat contradictory. What distinguished them was the perceived importance placed on the legitimate aim pursued by each employer. Health and Safety concerns are, perhaps not surprisingly, thought of as more important than an 25