Tuesday, 15 January 2013

Eweida and Others - First Views

The European Court of Human Rights decisions in the 4 cases involved in Eweida and Ors v UK  will be influential for a number of years. What is interesting is that where the European Court has agreed with the UK Courts it has often done so for other reasons and on balance even where the cases have gone against the Christians involved the legal position for religious rights is slightly better that it was previously. In particular the ECtHR has changed its previous stance that where an employee found their religious rights were infringed they should resign and get another job.

83.  Given the importance in a democratic society of freedom of religion, the Court considers that, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate.

The cases fall into two groups, Eweida and Chaplin which involved the right to wear a Christian Cross in work and Ladele and McFarlane which involved persons objecting to participation in work which involved endorsement of same sex relationships.  Eweida won her case the others lost theirs.  All claims were brought alleging breaches of Articles 9 (Freedom of Religion) and Article 14 (Freedom from Discrimination) of the European Convention on Human Rights

In the Eweida and Chaplin cases the UK courts had based their decisions against the Claimants in part on the basis that because the wearing of a Cross was not compulsory in Christianity its wearing was not a "manifestation" of religion for the purposes of Article 9.1 and so Courts did not have to consider whether any restrictions were "necessary in a democratic society" as required by 9.2.  The ECtHR clearly rejected this approach

Para 82.  In particular, there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question

89.  the Court considers that Ms Eweida’s behaviour was a manifestation of her religious belief, in the form of worship, practice and observance, and as such attracted the protection of Article 9.

97. the Court considers that [Ms Chaplin's] determination to wear the cross and chain at work was a manifestation of her religious belief and that the refusal by the health authority to allow her to remain in the nursing post while wearing the cross was an interference with her freedom to manifest her religion.

In the case of Eweida the ECtHR decided that the ban on her wearing a cross was not justified in a democratic society In the case of Chaplin who is a Nurse the ECtHR decided that the restriction related not to her wearing a cross as such but rather against her wearing a cross on a chain which could be justified on Health and Safety grounds because of the nature of her work.  This seems a fair balance to make and since the Chaplin decision relates only to wearing a cross on a chain rather than in some other way there is no issue of principle preventing the wearing of a cross by NHS or other workers.  

With Ladele and McFarlane there was a conflict between rights namely the right to manifest religion and the right not to be discriminated against and for that reason the Court held that how the balance was struck was a matter for the national authorities to decide under what is known as the "margin of appreciation"

105.  The Court recalls that in its case-law under Article 14 it has held that differences in treatment based on sexual orientation require particularly serious reasons by way of justification (see, for example, Karner v. Austria, no. 40016/98, § 37, ECHR 2003-IX; Smith and Grady, cited above, § 90; Schalk and Kopf v. Austria, no. 30141/04, § 97, ECHR 2010). It has also held that same-sex couples are in a relevantly similar situation to different-sex couples as regards their need for legal recognition and protection of their relationship, although since practice in this regard is still evolving across Europe, the Contracting States enjoy a wide margin of appreciation as to the way in which this is achieved within the domestic legal order
106.  The Court generally allows the national authorities a wide margin of appreciation when it comes to striking a balance between competing Convention rights (see, for example, Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007-I). In all the circumstances, the Court does not consider that the national authorities, that is the local authority employer which brought the disciplinary proceedings and also the domestic courts which rejected the applicant’s discrimination claim, exceeded the margin of appreciation available to them.

Therefore the decision does not prevent the UK or any other country giving individuals such as Lilian Ladele a right to conscientious objection to participating in same sex ceremonies etc but does state that it is up to individual countries whether they give such a right.

On the issue of conscientious objection there is a 


2. [Lilian Ladele's] case is not so much one of freedom of religious belief as one of freedom of conscience – that is, that no one should be forced to act against one’s conscience or be penalised for refusing to act against one’s conscience. Although freedom of religion and freedom of conscience are dealt with under the same Article of the Convention, there is a fundamental difference between the two which, in our view, has not been adequately made out in paras 79 to 88 of the judgment. Even Article 9 hints at this fundamental difference: whereas the word “conscience” features in 9.1, it is conspicuously absent in 9.2 Conscience – by which is meant moral conscience – is what enjoins a person at the appropriate moment to do good and to avoid evil. In essence it is a judgment of reason whereby a physical person recognises the moral quality of a concrete act that he is going to perform, is in the process of performing, or has already completed. This rational judgment on what is good and what is evil, although it may be nurtured by religious beliefs, is not necessarily so, and people with no particular religious beliefs or affiliations make such judgments constantly in their daily lives.

3.  We are of the view that once that a genuine and serious case of conscientious objection is established, the State is obliged to respect the individual’s freedom of conscience both positively (by taking reasonable and appropriate measures to protect the rights of the conscientious objector1) and negatively (by refraining from actions which punish the objector or discriminate against him or her). Freedom of conscience has in the past all too often been paid for in acts of heroism, whether at the hands of the Spanish Inquisition or of a Nazi firing squad. As the ECLJ observes, “It is in order to avoid that obeying one’s conscience must still require payment in heroism that the law now guarantees freedom of conscience.”

7.  Instead of practising the tolerance and the “dignity for all” it preached, the Borough of Islington pursued the doctrinaire line, the road of obsessive political correctness. It effectively sought to force the applicant to act against her conscience or face the extreme penalty of dismissal

It will be interesting to see if the case of Ladele is appealed since it raises real issue of principle which this dissenting judgement has highlighted and which deserves to be examined again. The decisions in the cases of Chaplin and McFarlane do not however raise these issues of principle and it may be sensible if they are not appealed.  With the case of Chaplin in particular any appeal raises the danger of the Appeal decision reversing or undermining the advantages for Christians obtained through the Eweida decision

Friday, 11 January 2013

Mba v Merton Council - Christians and Working on Sunday

The Employment Appeals Tribunal decision in the case of  Mba v London Borough Of Merton [2012] UKEAT 0332_12_1312  has been published and makes interesting but worrying reading.  In my view the ultimate decision in the case namely that the Claimant Ms Mba was not unlawfully discriminated against is correct but the reasoning of the EAT is extremely flawed on a crucial aspect of the case namely the attitude of Christians generally to working on a Sunday and the specific attitude of Ms Mba.

 Prior to the issuing of the written judgment the decision had been reported in the Press as meaning that "Christians Have no Right to Refuse to Work on Sunday" which is very definately NOT what the judgment says.  Indeed at para 3 of his judgment Mr Justice Langstaff says

"We should make it clear at the outset of this Judgment to anyone who expects the conclusion to amount either to a ringing endorsement of an individual’s right not to be required to work on a Sunday on the one hand, or an employer’s freedom to require it on the other, that they will both be disappointed.  No such broad general issue arises.  The questions raised must be determined in the specific circumstances of this particular case alone."

also in para 42 the EAT says

We do not think it was well expressed to say, as the Tribunal here said at 88(iii), that the belief that Sunday should be a day of rest was not a core component of the Christian religion. If that was all that was said, and if there had been no wider context in which to read it, to express matters in that way would have been capable of being offensive. It would have placed the Court where it should not be, in the position of judging the tenets of faith (see Williamson), and it would have been a misdirection of law.However, we do not think it is what the Tribunal was saying

The facts of the case are therefore significant.  In 2007 the Claimant Ms Mba was recruited to work at a registered children’s home which provided short residential breaks for children with serious disabilities and complex care needs, including such as challenging behaviour, medical needs, feeding difficulties and the like. 

The home, not surprisingly,  was open 7 days a week, 24 hours a day.  Staff worked in 3 shifts: morning, afternoon and night, covering the 24 hours with at least 3 members of staff  on duty at any  time.  Rotas for work were organised over a three week period and staff work two of the three weekends in each rota: that is, each person worked four weekend days every three weeks.  Bank and agency staff were employed but the cost to the employer for Agency staff to work weekends, rather than fulltime staff, was higher than it was for weekdays.

When the Claimant was offered the job she understood that a promise had been made to her that she need not work Sunday shifts.  Management thought that it had said it was not possible to alter the rota arrangements we have described, but recognised that it was likely to be possible that the rota could be worked so that the Claimant could work every Saturday and have every Sunday as a day off.  This fell short of a promise never to require the Claimant to work on Sunday - but it was an offer to take reasonable steps to accommodate her wishes at least in the short term.  This was a clear disagreement on the fact but the Tribunal having heard the evidence accepted that the employer’s version was correct and that decision of fact had to be accepted by the EAT.  In any event this question of whether Mrs Mba had been given a promise or not was a simple contractual issue which raised no point regarding Discrimination. 

In 2009 difficulties arose over the rostering and ultimately, by 22 June 2009,  Management said that the Claimant would be scheduled to work two weekends in three in accordance with the normal rota with effect from 13 July 2009.  Mrs Mba did not attend work on the Sundays she was rostered and Disciplinary action followed, which included a final written warning in early 2010.  An appeal against that was rejected on 25 May 2010.  Five days later the Claimant resigned.  It was noted by the EAT that there was never any question of the quality of the Claimant’s work nor her personal integrity.  Having resigned she brought a claim alleging "indirect" religious discrimination.

On the facts of her employment I have to say that I cannot see that there could be any question of Mrs Mba ever winning her case.  The Children in the home had to be fed and cared for on a Sunday just as much as on any other day and personally I would see that as performing a Christian act however my personal view on the nature of a Christians duty in this situation is not the same as Ms Mba's view and the mistake the EAT made was to take account the views of Christians such as  in balance against the views of Christians such as Ms Mba.

In the case the Employment Tribunal and the EAT had considered a witness statement that had been put in on behalf of Ms Mba by Bishop Nazir Ali which said.

“Some Christians will not work on the Sabbath (except for mercies), others may work only in an emergency.”

In deciding allegations of Indirect Discrimination, as occurred in this case, a Tribunal is supposed to be satisfied that a "group" of people are affected by the alleged Discriminatory practice and the evidence from Bishop Nazir Ali did this by stating that "some Christians will not work on the Sabbath".  The EAT however turned this around by deciding that because  "some Christians will work on the Sabbath" that meant that because only a minority of Christians would refuse to work therefore it was permissible to require Christians to work because only a minority of them would be affected.

In this respect the EAT seriously misunderstood discrimination law.  The requirement that no Christian could be guaranteed to have Sunday off affected those Christians such as Mrs Mba who were not willing to work on the Sabbath and that should have been the only relevant issue for the EAT.  Once it had decided that the rules of the Employer did affect that group of Christians then it should have gone on to decide whether the rule was justified which, on the facts of the case I am sure it was.  But they should not have tried to side step the issue by deciding that because only a minority of Christians refuse to work on a Sunday that of itself made the rule justifiable.

The legal route taken by the EAT is extremely problematic to all areas of Religious Discrimination, could Hijabs be banned because only a minority of Muslim women wear them or Sikh Turbans ?  On the basis of this decision the answer could be yes but I would be very surprised if that is how the decision is applied in practice.