Friday, 12 August 2011

Abortion and the Equality Act

Wearing my (unpaid) hat of Director of the Thomas More Legal Centre I have recently successfully represented two Roman Catholic Nurses who were told that they could not refuse to work at a weekly Abortion Clinic run by their Hospital. In doing this I relied on what is, I believe, a new use of the Religion and Belief provisions in the Equality Act 2010

The two nurses were employed at the Hospital for ordinary Nursing duties and were then allocated to work once a week at an Abortion Clinic in the Hospital. The Abortion process did not involve surgical abortion but the increasingly common process of "early medical abortion" (EMA) involving the termination of pregnancy, by means of a combination of drugs rather than surgery. where women are issued with the drug Mifepristone followed some days later by administration of the drug misoprostol which then causes an induced miscarriage. (See para 10 of judgement in
When they became aware that they were participating in Abortion they told their management that they did not want to continue but where then told that they had no choice in the matter. One Manager in fact commented "What would happen if we allowed all the Christian Nurses to refuse". Following this the nurses approached the Hospitals Catholic Chaplain who contacted the Thomas More Legal Centre.

From the facts it was clear that the Hospital had not recognised or accepted that the Nurses had a legal right to refuse to participate. EMA has been held by the High Court, in the BPAS case mentioned, to be an Abortion procedure under the Abortion Act 1967 and as such the Nurses had an absolute right to refuse to participate under the conscientious objection provisions of s4 of the Abortion Act.

Abortion Act 1967 - 4. Conscientious objection to participation in treatment
(1) Subject to sub-section (2) of this section, no person shall be under any duty whether by contract or by any statutory or other legal requirement to participate in any treatment authorised by this Act to which he has a conscientious objection
TMLC wrote to the hospital stating that the Nurses were refusing to work in the Clinic and quoting their rights under s4 Abortion Act. The letter also stated that their belief in the sanctity of life from conception onwards was a philosophical belief protected under the Equality Act and therefore any attempt to pressure them into participating in the Abortion Clinic or to suggest that their refusal would affect their career would be illegal under the Equality Act 2010.

This particular interpretation of the Equality Act has never, to my knowledge, been argued before however since the Courts have accepted that the philosophical belief in Global warming is protected under Equality legislation, see Grainger Plc & Ors v. Nicholson [2009] UKEAT 0219_09_0311 I could see no reason why belief that human life begins at conception should not be equally protected.

The reason for including the Equality Act in the letters to the Hospital was in order to provide the Nurses with additional protections. Section 4 of the Abortion Act though it is clear does not provide any enforcement mechanism and also does not protect a conscientious objector from being pressurised to participate in Abortion, held back in their career due to their pro-life belief or indeed not employed in the first place. However using the Equality Act as well as s4 of the Abortion Act meant that the Nurses would be able to claim Harassment, Victimisation or Discrimination in an Employment Tribunal if they were put under pressure at work because of their reliance on the conscientious objection protection in s4.

The Hospital attempted to tell the Nurses that they could be excused from actually administering the Abortion inducing drugs but would otherwise have to work in the Clinic. TMLC again wrote making it clear that this proposal was unacceptable because the nurses would still be morally complicit in Abortion if they worked as nurses in the Abortion Clinic even if they did not actually administer the pills and again relying on s4 and the Equality Act. The Hospital eventually backed down and the nurses were allocated to other duties.

Besides using Equality Act argument on behalf of these pro-life nurses I have advanced the same argument in another case where TMLC have issued an Employment Tribunal claim on behalf of another NHS worker. The lawyers for the NHS have accepted in their defence that belief in the sanctity of unborn life is a philosophical belief which is protected under the Equality Act.

Personally I hope that this use of the Equality Act will be of assistance for pro-life Doctors and Nurses and Pharmacists who find themselves being pressurised to participate in Abortion in particular these new forms of Abortion induced through pills. Now they are not only are protected under s4 of the Abortion Act but they are also protected from Harassment, Victimisation or Discrimination because of their pro-life stand.

Incidentally I am not naming the nurses or their Hospital at the specific request of the Nurses themselves. After all not everyone wants to become a media personality!