An ill-judged intervention from the Equality and Human Rights Commission

Savi Hensman
By Savi Hensman
18 Jul 2011

Judges have interpreted the law too narrowly on faith-related discrimination, the Equality and Human Rights Commission (EHRC) claims. On 11 July 2011, the UK equalities watchdog announced that it is applying to intervene at the European Court of Human Rights in four cases in which Christians allege they have been unfairly treated. In the EHRC’s view, ‘reasonable accommodation’ could have been made for belief in all these cases.

However, this ill-judged intervention is likely to intensify confusion, damage the EHRC’s credibility and do more harm than good to Christianity.

Equality, human rights, faith and the law

At present, UK residents are generally protected by law against being discriminated against on grounds of ethnicity, gender, disability, religion and belief, age, sexual orientation and gender reassignment.

To quote the explanatory notes to the Equality Act 2010, the beliefs protected must “be worthy of respect in a democratic society, compatible with human dignity and not conflict with the fundamental rights of others” and would include not only Protestant, Catholic and other faith-related beliefs but also non-religious ones like humanism and atheism.

Service users, job applicants and employees are protected. There are some limited exceptions, in particular where there is a ‘genuine occupational requirement’ (for instance casting a white woman to act the part of Elizabeth I in an historical drama).

Religious organisations can insist that those appointed to lead worship must be believers. Indeed it can be required that they be heterosexual and/or male, if this is in line with doctrine or the strongly-held convictions of a significant number of followers. Employees in general can expect reasonable accommodation by employers, for instance flexibility around working hours to enable them to take part in worship, provided this does not interfere too much with workplace needs.

In general, however, employees may be required to enable other people to do things that they themselves would not do because of deeply-held (and sometimes religiously-inspired) beliefs. A vegetarian careworker might be expected to help an elderly person to eat bacon and eggs, and a teetotal firefighter might have to help put out a blaze in a pub. This might be distasteful to staff, but respecting others’ identity and choices is often an essential part of workplace duties, especially in the public sector.

There are occasional grey areas. But otherwise, people of faith – like the rest of the population – are usually both protected by the law from being treated less favourably and prohibited from giving others inferior treatment. For Christians who hold fast to Jesus’ advice “whatever you wish that others would do to you, do also to them” (Matthew 7.12), this is no great hardship.

If the European Court of Human Rights overturns UK courts’ judgement on all four of these (actually significantly different) cases, this may change, causing confusion and leaving many people, including Christians, more vulnerable to discrimination.

It should be made clear that this is not a disagreement between those who are supportive of and against religion. Indeed some of the judges who have been accused of making ‘anti-Christian’ judgements are themselves Christians who have sought to act justly.

In contrast, campaigners who have argued for greater privileges for those practicing a certain kind of Christianity risk creating the impression that Christians are biased and care little about others’ rights.

While there may be arguable reasons to reconsider at least some of these cases, the way in which the issues have been publicised, including claims of 'persecution', is often less than helpful.

Meanwhile, there are countries where Christians or other people of faith really are being persecuted. Creating alliances to challenge this is made harder by exaggeration about the situation in the UK, where the Church of England, in particular, still enjoys certain privileges.

The purpose of the intervention

According to the EHRC’s news release statement:

If given leave to intervene, the Commission will argue that the way existing human rights and equality law has been interpreted by judges is insufficient to protect freedom of religion or belief.

It will say that the courts have set the bar too high for someone to prove that they have been discriminated against because of their religion or belief; and that it is possible to accommodate expression of religion alongside the rights of people who are not religious and the needs of businesses...

The Commission will propose the idea of ‘reasonable accommodations’ that will help employers and others manage how they allow people to manifest their religion or belief.

For example, if a Jew asks not to have to work on a Saturday for religious reasons, his employer could accommodate this with minimum disruption simply by changing the rota. This would potentially be reasonable and would provide a good outcome for both employee and employer...

The Commission has sought permission to intervene in the following cases to be heard in the European Court of Human Rights:

* Nadia Eweida & Shirley Chaplin against the United Kingdom (Application numbers 48420/10 and 59842/10)
* Lillian Ladele and Gary McFarlane against the United Kingdom (Application numbers 51671/10 and 36516/10)

This is potentially misleading. For years, employers have been making adjustments of the type cited. To quote guidance from ACAS (Advisory, Conciliation and Arbitration Service) on Religion or belief and the workplace: Putting the Employment Equality (Religion or Belief) Regulations 2003 into practice:

employers should consider whether their policies, rules and procedures indirectly discriminate against staff of particular religions or beliefs and if so whether reasonable changes might be made...

Many religions or beliefs have special festival or spiritual observance days. A worker may request holiday in order to celebrate festivals or attend ceremonies. An employer should sympathetically consider such a request where it is reasonable and practical for the employee to be away from work, and they have sufficient holiday entitlement in hand.

Explanatory notes to the Equality Act 2006 state that indirect discrimination:

occurs where person A applies to person B a provision, criterion or practice, which he applies equally to other people, but which puts people of person B’s religion or belief at a disadvantage compared with some or all other people... It would not be unlawful however if the action causing disadvantage to person B could be reasonably justified by reference to matters other than B’s religion or belief: for example, if it was performed to meet security or health and safety concerns, or if the efficiency of a business would be seriously jeopardised by failure to take the action complained about.

What the EHRC seems to wish to do is to alter the balance in favour of the employee, even if this affects the employers' ability to conduct their business efficiently and in a way that protects other staff and customers or clients.

Different cases, different issues

The four cases cited, I think, raise several different questions. The one with greatest merit is that of Nadia Eweida.

Are open displays of faith offensive and divisive?

British Airways (BA) employee Eweida lost her appeal to openly wear a cross necklace at work at a check-in counter at Heathrow. Uniform policy stated that jewellery should be worn under one’s outer clothes while at work. Many felt this was unfair, especially since some Muslims wore headscarves.

While wearing a cross is not a requirement for Christians, it clearly meant a lot to this individual, and perhaps the uniform policy could have been relaxed to allow greater individuality for staff. If a plumber turned up to mend a leak and he was wearing a Star of David, symbol of Pan or badge claiming that God does not exist, I would not mind too much provided he was good at plumbing! It might even be an opening for an interesting conversation. I suspect many of us, in today’s pluralistic society, feel the same.

Shami Chakrabarti, director of rights campaigning organisation Liberty, backed her case while opposing the claims of Lilian Ladele (see below).

Should displays of faith take priority over patient and staff safety?

Hospitals today look different from many other workplaces. On wards, staff tend to wear short sleeves, men do not have ties and both sexes have little or no jewellery.

Safety has become a major concern. There are all too many assaults of staff and patients, in part because many patients and visitors are confused or distressed, and employees are discouraged from wearing anything that might easily be grabbed and thus make them more vulnerable in a confrontation. Hospital-acquired infections have also caused tremendous harm, including many deaths in horrific circumstances. So anything that could trail infection from one patient to another tends to be banned.

Shirley Chaplin, a nurse, took out a case against Royal Devon and Exeter Hospital after managers had told her that she could not wear a necklace with a crucifix, which she had worn for many years, outside her clothing. The problem was not with displaying the cross but rather the necklace: a health and safety assessment had identified a risk that a patient might try to grab it. Chaplin was backed by the Christian Legal Centre.

The hospital was found to have acted reasonably. In reality, the risk was probably not that great: understaffed wards, for instance, are I believe a much greater hazard. So perhaps the employer should have been more flexible. But many of us – especially if personally affected by safety failings in the NHS – would feel that keeping patients and staff safe is a top priority. The failure of some ‘Christian’ campaigners even to acknowledge this as a concern is hurtful to the many who have been seriously harmed in healthcare facilities.

Can belief justify discrimination against others?

The cases of Lillian Ladele and Gary McFarlane – both dismissed for insisting on their right to discriminate against lesbian, gay, bisexual and trans (LGBT) people – are the most contentious.

Ladele, a registrar in Islington, was dismissed by the Council because she refused to conduct same-sex civil partnerships “as a matter of religious conscience”. The Court of Appeal, though acknowledging the strength of her beliefs, upheld the dismissal, which was because of her failure to carry out her responsibilities.

Though perhaps there were enough registrars in that borough to have adjusted the rotas, guaranteeing availability of already overstretched public services everywhere if staff could opt out of core duties on grounds of belief would be practically impossible.

Gary McFarlane, a relationship counsellor, was sacked by Relate Avon because he refused to provide sex therapy to same-sex couples. This was upheld by the court, in a case where Lord Justice Laws (himself a devout Christian) gave a thoughtful explanation of the limits of imposing one’s faith on others.

As he put it:

The general law may of course protect a particular social or moral position which is espoused by Christianity, not because of its religious imprimatur, but on the footing that in reason its merits commend themselves. So it is with core provisions of the criminal law: the prohibition of violence and dishonesty. The Judaeo-Christian tradition, stretching over many centuries, has no doubt exerted a profound influence upon the judgment of lawmakers as to the objective merits of this or that social policy. And the liturgy and practice of the established Church are to some extent prescribed by law. But the conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled. It imposes compulsory law, not to advance the general good on objective grounds, but to give effect to the force of subjective opinion...

We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion – any belief system – cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other. If they did, those out in the cold would be less than citizens; and our constitution would be on the way to a theocracy, which is of necessity autocratic.

... the law must firmly safeguard the right to hold and express religious belief; equally firmly, it must eschew any protection of such a belief's content in the name only of its religious credentials...

To give effect to the applicant's position would necessarily undermine Relate's proper and legitimate policy.

Quite apart from the fact that many people are both LGBT and Christian, so that homophobic discrimination has a direct and damaging effect, many Christians have put considerable effort over the years into trying to overcome their prejudices and behave justly towards everyone. To try to make out that respect for Christianity means that employees should be allowed to practice discrimination on supposedly faith-based grounds is highly misleading.

It would also open the door to other types of discrimination, e.g. on grounds of gender. And, indeed, it could be turned against Christians.

Upholding justice for all

If the EHRC were to succeed, Christianity’s reputation would be further damaged among those who come to associate it with institutionalised prejudice and abuse of power.

Christians too could find themselves on the receiving end of ‘conscientious’ discrimination. For instance, at present, if a church were vandalised, a police officer sent to the scene would be expected to do his job sensitively and diligently. This would be so even if he happened to be an ardent atheist in his private life who believed that religion was the source of most of the world’s evil. But if he believed that his belief could override his duty, he might refuse to go.

What is more, discrimination against Christians might appear increasingly justifiable, especially among those who do not know that – in practice – many churchgoers are reasonably sensible, accepting people, very different from the most vocal campaigners against ‘persecution’.

If, say, a headteacher were appointing a primary school teacher, and one of the candidates mentioned that she was active in a local church, the head might fear that – if appointed – she might refuse to teach much of the standard science curriculum because she was a creationist, and refuse to deal respectfully with parents who were unmarried or same-sex couples and with their children. This might be thoroughly unfair on the individual concerned. But giving people of faith in effect an opt-out clause for carrying out their duties could backfire spectacularly.

In addition Christians, like others, might be affected if certain services became erratic because of one or more staff members opting out of aspects of their work, on grounds of philosophical or religious belief. Alternatively, Christians might be among those being expected to take on extra work when already overloaded. For instance, if one hospital porter refused to move blood products for transfusions, and another would not handle drugs tested on animals in a way she regarded as unethical, there would be an impact on other staff and patients.

Many Christians and other people of faith, along with agnostics and atheists, will be relieved if the European Court of Human Rights reaches a sensible decision that upholds religious liberty, but not the right to treat others unjustly on supposedly religious grounds.

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© Savi Hensman is a Christian writer and commentator who works in the social care and equalities sector. She is an Ekklesia associate.

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