The Supreme Court has issued its decision in the case of Bull v Hall [2013] UKSC 73 which involves a couple, Mr & Mrs Bull, who owned a B&B in Cornwall and who refused to provide a double bedded room to a Gay couple who were in a Civil Partnership. They justified this on the basis that they only provided double bedded rooms to Heterosexual Married couples. They were then successfully sued for breach of the Sexual Orientation Regulations 2007, which are now incorporated in the Equality Act 2010
The Bulls had originally lost their case in the Court of Appeal Bull v Hall [2012] EWCA Civ 83 which I blogged about HERE where they had been found to have engaged in Direct as Opposed to Indirect discrimination. In the Supreme Court 3 all the Judges agreed that the Bulls had engaged in unlawful Discrimination but 3 held it was Direct Discrimination and 2 held it was Indirect Discrimination. The decision by the Supreme Court also has the effect of overriding the decision of the Court of Appeal in Black v Wilkinson [2013] EWCA Civ 820 where a similar situation to that of the Bulls was considered by the Court of Appeal to be Indirect Discrimination. The fact that so many eminent Judges can disagree on so fundamental a legal issue hardly inspires confidence in the legal drafting behind the Equality Act 2010
That said the decision by the Supreme Court was predictable and follows the logic of similar decisions in Canada Eadie and Thomas v. Riverbend Bed and Breakfast and others (No. 2),2012 BCHRT 247 and in the USA Elane Photography v Vanessa Willock New Mexico Supreme Court August 22, 2013 and the decision re Lillian Ladelle in the European Court of Human Rights all of which I have previously blogged about. Article 9 of the European Convention of Human Rights was here, as so often before, shown to be a toothless Human Right
The summation of the present legal situation and the philosophy behind it was put by Lady Hale who did the lead judgment in the case
52.Sexual orientation is a core component of a person’s identity which requires fulfilment through relationships with others of the same orientation.
53. Heterosexuals have known this about themselves and been able to fulfil themselves in this way throughout history. Homosexuals have also known this about themselves but were long denied the possibility of fulfilling themselves through relationships with others. This was an affront to their dignity as human beings which our law has now (some would say belatedly) recognised. Homosexuals can enjoy the same freedom and the same relationships as any others. But we should not underestimate the continuing legacy of those centuries of discrimination, persecution even, which is still going on in many parts of the world. It is no doubt for that reason that Strasbourg requires “very weighty reasons” to justify discrimination on grounds of sexual orientation. It is for that reason that we should be slow to accept that prohibiting hotel keepers from discriminating against homosexuals is a disproportionate limitation on their right to manifest their religion.
54. There is no question of (as Rafferty LJ put it) replacing “legal oppression of one community (homosexual couples) with legal oppression of another (those sharing the defendants’ beliefs)” (para 56). If Mr Preddy and Mr Hall ran a hotel which denied a double room to Mr and Mrs Bull, whether on the ground of their Christian beliefs or on the ground of their sexual orientation, they would find themselves in the same situation that Mr and Mrs Bull find themselves today.
The point I would ask is what sort of legal system or society needs to punish a couple who run a small B&B merely because they disagree with the, now overwhelming, consensus ? Why on earth can society not accommodate them, what ever happened to the idea of human freedom ?
Also as regards the fatuous comparison Lady Hale made in para 54 surely the point would be why the Preddy and Hall were denying the room to the Bulls ? Lady Hale simply did not try to address the basic point behind the Bulls objection namely the fact that giving a double room to an unmarried couple would make the Bulls morally complicit in an immoral act. Were they, for example, running a restaurant and had refused to give a meal to a same sex couple then that would have been simple discrimination but their stand was more nuanced than that and it is unfortunate that that British Courts seem unable to recognise that point
Thursday, 28 November 2013
Sunday, 10 November 2013
The Coronation Oath - A Legal Challenge ??!!
It has been reported that the National Secular Society is instructing Lawyers to consider the possibility of making a legal challenge to the Coronation Oath in particular that part where the Monarch promises to maintain the Protestant Religion
Archbishop. Will you to the utmost of your power maintain the Laws of God and the true profession of the Gospel? Will you to the utmost of your power maintain in the United Kingdom the Protestant Reformed Religion established by law? Will you maintain and preserve inviolably the settlement of the Church of England, and the doctrine, worship, discipline, and government thereof, as by law established in England? And will you preserve unto the Bishops and Clergy of England, and to the Churches there committed to their charge, all such rights and privileges, as by law do or shall appertain to them or any of them?
Queen. All this I promise to do.
The NSS apparently wants to ensure that this part of the Oath is changed before the next Coronation. Now leaving aside the fact that talking about the wording of the Oath for the next Coronation whilst the present Queen is alive and in good health is in exceedingly bad taste the idea that there could be a legal challenge to the Coronation Oath using the Human Rights Act 1998 is simply legal fairyland.
To begin with neither the NSS nor anyone in it has legal standing to bring a claim since s7 of the Act says (my emphasis)
7(1) (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act
and therefore the only person who could claim to be a "victim" of the wording of the Coronation Oath is Prince Charles who will, in all probability, be taking the Oath at some unspecified time in the future. The simple legal, as well as political question is,
"If Prince Charles does not object to taking the Oath what right has anyone else got to object on his behalf ?"
The fact that the (miniscule) membership of the NSS may object to the wording of the Oath is irrelevant. Lord Diplock noted in R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 the need
"to prevent the time of the court being wasted by busybodies with misguided or trivial complaints"
After all if the NSS could legally object to the wording of the Coronation Oath because they found it "objectionable" then by the same logic any group which objected the existance of the Monarchy itself could equally object to a Coronation itself on the basis that they found that "objectionable"
Finally as was noted by the Canadian Courts in O’Donohue v. Canada, 2003 CanLII 41404 (ON SC) and 2005 CanLII 6369 (ON SC) which dealt with the position of Queen Elizabeth II as Queen of Canada the Monarchy of the United Kingdom is a Monarchy that is shared with Fifteen other Commonwealth Realms and any changes to the Coronation Oath or the rules relating to eligibility to the Throne cannot be imposed unilaterally by the Government, Parliaments or Courts of any of individual realm but have to be agreed by all the Realms. In short any attempted legal challenge to the Coronation Oath in the Courts of the UK would be an attempt to interfere in the Government and Constitutions of fifteen other Nations
The NSS will I am sure be aware that the entire story is nonsense and no legal challenge would ever get off the ground however they have got their publicity which is I suspect all they ever really wanted
My other Blogs re the Monarchy
A Catholic Monarch ? The Act of Settlement 1701
Myths about Catholics and the Monarchy
Archbishop. Will you to the utmost of your power maintain the Laws of God and the true profession of the Gospel? Will you to the utmost of your power maintain in the United Kingdom the Protestant Reformed Religion established by law? Will you maintain and preserve inviolably the settlement of the Church of England, and the doctrine, worship, discipline, and government thereof, as by law established in England? And will you preserve unto the Bishops and Clergy of England, and to the Churches there committed to their charge, all such rights and privileges, as by law do or shall appertain to them or any of them?
Queen. All this I promise to do.
The NSS apparently wants to ensure that this part of the Oath is changed before the next Coronation. Now leaving aside the fact that talking about the wording of the Oath for the next Coronation whilst the present Queen is alive and in good health is in exceedingly bad taste the idea that there could be a legal challenge to the Coronation Oath using the Human Rights Act 1998 is simply legal fairyland.
To begin with neither the NSS nor anyone in it has legal standing to bring a claim since s7 of the Act says (my emphasis)
7(1) (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act
and therefore the only person who could claim to be a "victim" of the wording of the Coronation Oath is Prince Charles who will, in all probability, be taking the Oath at some unspecified time in the future. The simple legal, as well as political question is,
"If Prince Charles does not object to taking the Oath what right has anyone else got to object on his behalf ?"
The fact that the (miniscule) membership of the NSS may object to the wording of the Oath is irrelevant. Lord Diplock noted in R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 the need
"to prevent the time of the court being wasted by busybodies with misguided or trivial complaints"
After all if the NSS could legally object to the wording of the Coronation Oath because they found it "objectionable" then by the same logic any group which objected the existance of the Monarchy itself could equally object to a Coronation itself on the basis that they found that "objectionable"
Finally as was noted by the Canadian Courts in O’Donohue v. Canada, 2003 CanLII 41404 (ON SC) and 2005 CanLII 6369 (ON SC) which dealt with the position of Queen Elizabeth II as Queen of Canada the Monarchy of the United Kingdom is a Monarchy that is shared with Fifteen other Commonwealth Realms and any changes to the Coronation Oath or the rules relating to eligibility to the Throne cannot be imposed unilaterally by the Government, Parliaments or Courts of any of individual realm but have to be agreed by all the Realms. In short any attempted legal challenge to the Coronation Oath in the Courts of the UK would be an attempt to interfere in the Government and Constitutions of fifteen other Nations
The NSS will I am sure be aware that the entire story is nonsense and no legal challenge would ever get off the ground however they have got their publicity which is I suspect all they ever really wanted
My other Blogs re the Monarchy
A Catholic Monarch ? The Act of Settlement 1701
Myths about Catholics and the Monarchy
Tuesday, 22 October 2013
Beekeeping, God and Taxes - Blackburn v HMRC
A couple of staunchly religious beekeepers who said their beliefs meant they could not meet HMRC’s requirement to file their Value Added Tax (VAT|) returns online have won their case in the Tax Chamber of the First Tier Tribunal case of Blackburn v HM Revenue & Customs [2013] UKFTT 525 (TC)
From the 1st April 2010 HMRC have required all businesses to serve VAT returns via the Internet. However Reg 25A(6) of the VAT Regulations states that
A person who the Commissioners are satisfied is a practising member of a religious society or order whose beliefs are incompatible with the use of electronic communications, is not required to make a return required by regulation 25 using an electronic return system.
Graham and Abigail Blackburn, who run Cornish Moorland Honey, in Bodmin, are both devout members of the Seventh Day Adventist Church and view the internet as an intrusion of 'worldliness' into their lives of 'righteousness'. They said that they should be allowed to continue with paper tax submissions, as they had before the new regulations came into force in April.
Graham Blackburn told the FTT that he and wife renounced the use of computers, the internet, televisions and mobile phones in their home. In para 14 of the judgment it was noted that the couple
" have chosen to entirely shun computers and television. They do not possess a computer or television. They do not use them. Mr Blackburn gave unchallenged evidence that he would regard it as incompatible with his beliefs to go to the library to use a computer to make a VAT return or to ask someone (such as an agent) to make his online VAT return on his behalf. They will not use computers nor have someone use them on their behalf."
However HMRC lawyers argued that the couple's stance was 'really a personal preference and not part of their religion.' It noted that the Seventh Day Adventist Church does not ban its members from using the internet , although it does require its members to avoid 'unwholesome' or 'sordid' influences in the mass media. The church does, for example, run its own website.
The Judge found therefore that the religious society of which Mr & Mrs Blackburn were members, the Seventh-day Adventist Church, did not consider its beliefs to be incompatible with the use of electronic communications and so her conclusion was that Regulation 25A(6) in relation to the Blackburns, if seen purely as a question of the normal rules of construction and without reference to the effect of the Human Rights Act 1998 (“HRA”), menat that the Blackburns were not entitled to the religious exemption from liability to file online contained within the Regulation
The Tribunal Judge however rejected this argument and ruled that by refusing to exempt the Blackburns from online filing, HMRC had breached their right to freely manifest their religion, as laid down in Article 9 of the European Convention on Human Rights.
The judge said: ‘I find that, by entirely shunning computers, the Blackburns considered they were acting, as the Bible required them to do, in accordance with their religious conscience. They were manifesting their religious beliefs by refusing to use computers.’
The judge described the justifications put forward by HMRC for refusing to exempt the couple as 'clearly insufficient' and noted that for there to be a breach of Artcle 9 there was no requirement that the particular religious belief had to be a mandatory requirement of the particular religion all that was required was that the person was acting in accordance with a religious belief. Once that was established HMRC had not put forward any argument that would justify overriding the religious beliefs of the Blackburn family and so insisting on them using the Internet to file their VAT returns was a breach of Article 9 and therefore unlawful under sections 3 & 6 of the Human Rights Act 1998
In general terms this is a decision very much on its own facts but to be welcomed as much as anything else because Government Departments should not be able to boss everyone around. Getting VAT returns via the Internet is undoubtedly convenient to HMRC but there is no reason why a person who, for whatever reason, prefers not to use the Internet should be forced to do so
From the 1st April 2010 HMRC have required all businesses to serve VAT returns via the Internet. However Reg 25A(6) of the VAT Regulations states that
A person who the Commissioners are satisfied is a practising member of a religious society or order whose beliefs are incompatible with the use of electronic communications, is not required to make a return required by regulation 25 using an electronic return system.
Graham and Abigail Blackburn, who run Cornish Moorland Honey, in Bodmin, are both devout members of the Seventh Day Adventist Church and view the internet as an intrusion of 'worldliness' into their lives of 'righteousness'. They said that they should be allowed to continue with paper tax submissions, as they had before the new regulations came into force in April.
Graham Blackburn told the FTT that he and wife renounced the use of computers, the internet, televisions and mobile phones in their home. In para 14 of the judgment it was noted that the couple
" have chosen to entirely shun computers and television. They do not possess a computer or television. They do not use them. Mr Blackburn gave unchallenged evidence that he would regard it as incompatible with his beliefs to go to the library to use a computer to make a VAT return or to ask someone (such as an agent) to make his online VAT return on his behalf. They will not use computers nor have someone use them on their behalf."
However HMRC lawyers argued that the couple's stance was 'really a personal preference and not part of their religion.' It noted that the Seventh Day Adventist Church does not ban its members from using the internet , although it does require its members to avoid 'unwholesome' or 'sordid' influences in the mass media. The church does, for example, run its own website.
The Judge found therefore that the religious society of which Mr & Mrs Blackburn were members, the Seventh-day Adventist Church, did not consider its beliefs to be incompatible with the use of electronic communications and so her conclusion was that Regulation 25A(6) in relation to the Blackburns, if seen purely as a question of the normal rules of construction and without reference to the effect of the Human Rights Act 1998 (“HRA”), menat that the Blackburns were not entitled to the religious exemption from liability to file online contained within the Regulation
The Tribunal Judge however rejected this argument and ruled that by refusing to exempt the Blackburns from online filing, HMRC had breached their right to freely manifest their religion, as laid down in Article 9 of the European Convention on Human Rights.
The judge said: ‘I find that, by entirely shunning computers, the Blackburns considered they were acting, as the Bible required them to do, in accordance with their religious conscience. They were manifesting their religious beliefs by refusing to use computers.’
The judge described the justifications put forward by HMRC for refusing to exempt the couple as 'clearly insufficient' and noted that for there to be a breach of Artcle 9 there was no requirement that the particular religious belief had to be a mandatory requirement of the particular religion all that was required was that the person was acting in accordance with a religious belief. Once that was established HMRC had not put forward any argument that would justify overriding the religious beliefs of the Blackburn family and so insisting on them using the Internet to file their VAT returns was a breach of Article 9 and therefore unlawful under sections 3 & 6 of the Human Rights Act 1998
In general terms this is a decision very much on its own facts but to be welcomed as much as anything else because Government Departments should not be able to boss everyone around. Getting VAT returns via the Internet is undoubtedly convenient to HMRC but there is no reason why a person who, for whatever reason, prefers not to use the Internet should be forced to do so
Friday, 18 October 2013
Gay and Lesbian Clergy v Bishop of Auckland
There has been an interesting case in New Zealand before their Human Rights Review Tribunal which deals with alleged breaches of the New Zealand Human Rights Act 1993 which is an Anti-Discrimination Statute similar to the British Equality Act 2010. It could have some relevance if a similar case is brought in Britain
In the case of Gay and Lesbian Clergy Anti-Discrimination Society Inc v Bishop of Auckland [2013] NZHRRT 36 the Claimant who wanted to study to be a Clergyman in the Anglican Church in New Zealand sought to enter a time of discernment during which his sense of call would be tested and a decision made by a bishop whether training for the ministry should begin. The Bishop of Auckland, refused to allow him to participate in the process of discernment because he was in an unmarried same-sex relationship and could not therefore be ordained into the ministry. The Claimant alleged that this constituted unlawful Discrimination contrary to the Human Rights Act 1993 alleging Discrimination on the basis of his Sexual Orientation.
The New Zealand Act makes it unlawful to Discriminate on the grounds of Sexual Orinentation but provides an exemption in s39 which says
39 Exceptions in relation to qualifying bodies
(1) Nothing in section 38 shall apply where the authorisation or qualification is needed for, or facilitates engagement in, a profession or calling for the purposes of an organised religion and is limited to one sex or to persons of that religious belief so as to comply with the doctrines or rules or established customs of that religion.
this provision is very similar to the exemptions given to religious organisations in Britain by Schedule 9 Part 1(2) of the Equality Act 2010 where exemptions are given
so as to comply with the doctrines of the religion..... so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers.
In the New Zealand case reference was made to the recently passed New Zealand Marriage (Definition of Marriage) Amendment Act 2013 which like the British Marriage (Same Sex Couples) Act 2013 changed the legal definition of Marriage so as to permit Marriage between Same-Sex couples. The Tribunal however held that this change did not affect the case before them nor did it assist the Claimant in his argument with the Anglican Church
19. The purpose of [ the Marriage (Definition of Marriage) Amendment Act 2013 ] was to amend the Marriage Act 1955 by clarifying that for the purpose of New Zealand secular law, a marriage is between two people regardless of their sex, sexual orientation, or gender identity. The Amendment Act did not amend the doctrine of any church, including in particular that of the Anglican Church, regarding the sacrament of marriage as conceived by that church
In the case the Bishop of Auckland gave evidence about the Christian doctrine on Marriage as understood in the Anglican [and indeed all mainstream Christian] Churches as being between a Man and a Woman and that sexual relationships could only be approved of within such a marriage; therefore the relationship that the Claimant was in was incompatible with the doctrines of the Church. He stated that the, admitted, fact that some Bishops had made ordination decisions inconsistent with the doctrines of the Anglican Church did not change the doctrine of the Church.
There was some "evidence" from activists disputing this view of Anglican Doctrine but the Tribunal refused to be drawn into this noting
[33.3] Only Archbishop Richardson and Bishop Bay can speak for the Anglican Church. They spoke not just as experts, but as spokespersons for the Church and their evidence must be accepted. The separation of church and state must be maintained. The Tribunal cannot determine what is at heart an ecclesiastical dispute.
Para 42 of the Judgment is also worth quoting in its entirety as a very fine analysis of the nature of Religious Liberty
[42] The right of religious communities to determine and administer their own internal religious affairs without interference from the state is referred to as religious group autonomy (or “church autonomy”, to use the traditional label). See Ahdar and Leigh op cit 374 where it is noted that the importance of religious group autonomy to any overall scheme of religious liberty has been described as “most important”, “critical”, and “exceptionally high”:
Religious group autonomy is the freedom asserted by religious communities as groups. This freedom is not merely a “compound” or “aggregation” of individual members’ freedoms; it is the right the group asserts to its own religious exercise, separate and distinct from the rights and interests of its members. If religious groups are merely a combination of individual interests, a means to enhance personal autonomy, then this implies that these groups “are presumptively entitled to constitutional protection only to the extent that they do, in fact, enhance individual liberty”. This in turn implies greater vulnerability to state intervention into the internal affairs of such groups since the focus would be on vindicating individuals and their interests, not the group and its interests. In our view, this characteristically liberal and atomistic way of viewing religious groups (an aggregation of individuals contingently linked by religious preferences) seriously undermines religious freedom.
Religion is seldom if ever solely an individual matter. While a lone individual may clearly follow his or her own unique chosen path in matters of belief, worship, and practice, the vast majority of human beings only find it meaningful to pursue their religious objectives together with other like-minded individuals. There is an ineradicable collective or communal dimension to religion. Organizations or associations are formed to give effect to this communal aspiration. An individual’s religious life is very much tied to and dependent upon the health of the religious community to which that believer belongs. It requires a religious “infrastructure”.
The Judgment is of a high standard and considers European, American and British Judgments relating to the nature of religious freedom. As with all cases it ultimately relies on its own facts and its own National Legislation but it will undoubtedly be a valuable persuasive precedent in any future cases brought in Britain which challenge employment or similar decisions made by Churches in particular decisions by Churches refusing to offer or participate in Same-Sex Marriage ceremonies.
In the case of Gay and Lesbian Clergy Anti-Discrimination Society Inc v Bishop of Auckland [2013] NZHRRT 36 the Claimant who wanted to study to be a Clergyman in the Anglican Church in New Zealand sought to enter a time of discernment during which his sense of call would be tested and a decision made by a bishop whether training for the ministry should begin. The Bishop of Auckland, refused to allow him to participate in the process of discernment because he was in an unmarried same-sex relationship and could not therefore be ordained into the ministry. The Claimant alleged that this constituted unlawful Discrimination contrary to the Human Rights Act 1993 alleging Discrimination on the basis of his Sexual Orientation.
The New Zealand Act makes it unlawful to Discriminate on the grounds of Sexual Orinentation but provides an exemption in s39 which says
39 Exceptions in relation to qualifying bodies
(1) Nothing in section 38 shall apply where the authorisation or qualification is needed for, or facilitates engagement in, a profession or calling for the purposes of an organised religion and is limited to one sex or to persons of that religious belief so as to comply with the doctrines or rules or established customs of that religion.
this provision is very similar to the exemptions given to religious organisations in Britain by Schedule 9 Part 1(2) of the Equality Act 2010 where exemptions are given
so as to comply with the doctrines of the religion..... so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers.
In the New Zealand case reference was made to the recently passed New Zealand Marriage (Definition of Marriage) Amendment Act 2013 which like the British Marriage (Same Sex Couples) Act 2013 changed the legal definition of Marriage so as to permit Marriage between Same-Sex couples. The Tribunal however held that this change did not affect the case before them nor did it assist the Claimant in his argument with the Anglican Church
19. The purpose of [ the Marriage (Definition of Marriage) Amendment Act 2013 ] was to amend the Marriage Act 1955 by clarifying that for the purpose of New Zealand secular law, a marriage is between two people regardless of their sex, sexual orientation, or gender identity. The Amendment Act did not amend the doctrine of any church, including in particular that of the Anglican Church, regarding the sacrament of marriage as conceived by that church
In the case the Bishop of Auckland gave evidence about the Christian doctrine on Marriage as understood in the Anglican [and indeed all mainstream Christian] Churches as being between a Man and a Woman and that sexual relationships could only be approved of within such a marriage; therefore the relationship that the Claimant was in was incompatible with the doctrines of the Church. He stated that the, admitted, fact that some Bishops had made ordination decisions inconsistent with the doctrines of the Anglican Church did not change the doctrine of the Church.
There was some "evidence" from activists disputing this view of Anglican Doctrine but the Tribunal refused to be drawn into this noting
[33.3] Only Archbishop Richardson and Bishop Bay can speak for the Anglican Church. They spoke not just as experts, but as spokespersons for the Church and their evidence must be accepted. The separation of church and state must be maintained. The Tribunal cannot determine what is at heart an ecclesiastical dispute.
Para 42 of the Judgment is also worth quoting in its entirety as a very fine analysis of the nature of Religious Liberty
[42] The right of religious communities to determine and administer their own internal religious affairs without interference from the state is referred to as religious group autonomy (or “church autonomy”, to use the traditional label). See Ahdar and Leigh op cit 374 where it is noted that the importance of religious group autonomy to any overall scheme of religious liberty has been described as “most important”, “critical”, and “exceptionally high”:
Religious group autonomy is the freedom asserted by religious communities as groups. This freedom is not merely a “compound” or “aggregation” of individual members’ freedoms; it is the right the group asserts to its own religious exercise, separate and distinct from the rights and interests of its members. If religious groups are merely a combination of individual interests, a means to enhance personal autonomy, then this implies that these groups “are presumptively entitled to constitutional protection only to the extent that they do, in fact, enhance individual liberty”. This in turn implies greater vulnerability to state intervention into the internal affairs of such groups since the focus would be on vindicating individuals and their interests, not the group and its interests. In our view, this characteristically liberal and atomistic way of viewing religious groups (an aggregation of individuals contingently linked by religious preferences) seriously undermines religious freedom.
Religion is seldom if ever solely an individual matter. While a lone individual may clearly follow his or her own unique chosen path in matters of belief, worship, and practice, the vast majority of human beings only find it meaningful to pursue their religious objectives together with other like-minded individuals. There is an ineradicable collective or communal dimension to religion. Organizations or associations are formed to give effect to this communal aspiration. An individual’s religious life is very much tied to and dependent upon the health of the religious community to which that believer belongs. It requires a religious “infrastructure”.
The Judgment is of a high standard and considers European, American and British Judgments relating to the nature of religious freedom. As with all cases it ultimately relies on its own facts and its own National Legislation but it will undoubtedly be a valuable persuasive precedent in any future cases brought in Britain which challenge employment or similar decisions made by Churches in particular decisions by Churches refusing to offer or participate in Same-Sex Marriage ceremonies.
Tuesday, 1 October 2013
An Imam as an Employee
In my Blog on 17 May 2013 I discussed the case of President of the Methodist Conference v Preston [2013] UKSC 29 where the Supreme Court decided that, on the facts, a Methodist Minister was not an employee but was an office holder. I had noted at the time
"On the basis of the [Preston] decision it seems clear that Catholic, Orthodox or Anglican Diocesan Priests are not Employees though they might be if they were employed as Chaplains by, for example the NHS. For other religions with a much more decentralised structure such a many Free Churches, Synagogues or Mosques it is quite possible that their religious Ministers could be employees."
This view was based in part on comments in the case by Lady Hale who had noted at para 36
"It is normal for rabbis to be employed by a particular synagogue, for example."
I had actually not noticed the earlier 2012 case of Ur- Rehman v Doncaster Jahia Mosque [2012] UKEAT 0117_12_1008 where it had been accepted by both the Employment Tribunal and EAT that the Imam in question was an employee.
In a very interesting article Nabilla Mallick looks at the question "Are Imams Employees Of Mosques" and reaches the clear view that they are. The article looks at a an Employment Tribunal case Hasan v Redcoat Community Centre ( East London Employment Tribunal) which was decided that the Imam was an employee. He could bring a claim for unfair dismissal though he lost on the facts.
In view of recent tragic events in Kenya it is perhaps worth noting that the reason the Imam was sacked by the Committee was apparently the political nature of his Khutbahs (Friday Sermons).
The Article reads (c) Nabila Mallick
"An Imam performs the duty of offering prayer for the congregation in mosques. Essentially mosques are a centre of community worship where Muslims perform ritual prayer and where historically they also gathered for political, social and cultural functions. The function of the mosque is summarised by the 13th Century jurist Ibn Taymiyah as a place of gathering where prayer was celebrated and where public affairs were conducted. Services connected to marriages or birth are not usually performed inside the mosque. The rites that are important and integral to the function of many churches such as confession, penitence and confirmation do not exist in mosques.[1]
Imams are expected to look after the cleanliness of mosque and propagate Islamic faith. They are expected to be well versed in the shariat[2], the holy Quran, the hadiths[3], ethics, philosophy, social, economic and religious aspects. The Imam like the Parish priest is expected to make himself available to his congregation whenever he is needed. However, unlike Churches who have designated clergy , mosques may have either one Imam or a number of Imams in its service. There is no hierarchy, but each Mosque Committee determines how a Mosque is to be run.
Since there is no hierarchical religious authority, it is virtually impossible for any religious body to govern the diversity [4]. Many mosque committees would argue against statutory governance of the arrangements with its Imams on the basis that they require flexibility to run the mosques to meet the needs of the differing local communities. On the other hand many Imams would point to frequent and serious denial of justice and equity when they are left with no entitlement on dismissal.[5]
The Islamic response to the dti, has been, very much in favour of the extension of employment status to Imams. The principal reason for such intervention is that it is a way of bringing order and support to Imams, who rely on salaries funded by local communities, often receiving less than the minimum wage and working ill defined hours, duties and working conditions. There can be no protection against dismissal, which can be ad hoc and capricious frequently driven by grassroots politics.[6] The question is how is balance to be maintained between the balancing the needs of the local Muslim community to that of its Imams.
Recently the in Hasan v Redcoat Community Centre , the East London Employment Tribunal had to address this issue and decided that the Imam was an employee.[7] In coming to its decision it had particular regard to the case of Preston –v- President of the Methodist Church [ 2012] UKSC 29. In that case, the Supreme Court, drew distinction between office holders defined by rules of the institution and employee defined by the contract. It further considered the spiritual nature of a minister of religion’s calling.
In giving Judgement Lord Sumption referred to the decision of Percy v Board of National Mission of Church of Scotland [2006] 2AC 28, Lord Nicholls considered an office holder an unsatisfactory criterion for determining whether the minister was an employee and concluded the two were not always mutually exclusive. Turning to the spiritual nature, Lord Nicholls recognised its relevance and cited President of the Methodist Conference v Parfitt [1984] QB 368 as a life time commitment by a minister, who could not unilaterally resign. In that case, it was concluded that the Minister was an office holder and not an employee. He held that there was no cogent reason why there should be a distinction between posts that are religious and those that are not.
In Preston, the court refused to reintroduce the concept of non contractual status and the court concluded there can be no presumption. The question of status is determined by whether there were arrangements of an employment nature at all. In finding there was no such contract, it was said that it could not ignore the fact that, because of the way the church organises its own affairs, the basis for the rights and duties is to be found in the constitutional provisions of the church. However Lady Hale dissented- it was a very specific arrangement for a particular post, at a particular time, with a particular manse and particular stipend with a particular set of responsibilities. The spiritual nature of some of the duties did not necessarily entail a different conclusion.
The Employment Tribunal, relying on Preston at § 10 of Lord Sumption’s Judgement, posed itself the question, what was the manner in which the minister (Imam) was engaged and the rule or terms governing service? This was to be considered against the fundamental spiritual purpose of the functions of ministers of religion.[8]
The Employment Tribunal was further informed by the case of Autoclenz –v- Belcher [2011] IRLR 820 and the approval by Lord Clarke of the decision of Mackenna J ‘s decision in Ready-Mix (concrete) –v- Minster of Pensions [1968] 2QB 497, - the condition of contract of service are fulfilled :
1.the servant agrees in consideration of wage or other remuneration he will provide his own skill in the performance of service
2. he agrees expressly or impliedly that in the performance of his duties he will be subject to control.
3.Other terms of contract are not inconsistent with it being a contract of service, although the freedom to do the job either by ones hand or another are, limited power of delegation may not be.
Therefore the Employment Tribunal considered that RCC is a charity that functioned through an executive committee. There was a written constitution that provided inter alia for the purpose of RCC to promote education, training, housing, arts, health and any other aspects of the lives of the local community, provide and assist leisure facilities for the Young and to promote understanding of religion in the local community. In furtherance of its objectives the Respondent was empowered to ‘employ’ anyone to meet its objectives.
The Claimant had responded to an advert and was engaged in the position of Imam with RCC until his contract was terminated because of the political nature of his Khutbahs (Friday Sermons). He was given a written document that described hours of work as full time (self employed), no statutory sick pay or holiday pay with the duty of leading the congregation in prayer, imparting Islamic education and dealing with religious queries from the local community.
There was dispute between the parties as to why the terms of engagement made reference to self employment. Although it suited the Imam to be responsible for his own income tax and National Insurance, this went to legality of the contract rather than the issue of whether he was an employee. It was noted that the Imam started his duties each day before sun rise and completed his duties an hour after sunset. He was responsible for opening and closing the mosque. On Fridays and Sundays he had extra duties of teaching the Quran. He also answered religious queries from the local community. He was only excused from such duties for the Haj period, when he substituted the Muezzin to undertake his duties, as he did some mornings when he could not attend for the morning prayer. There was a degree of autonomy in that he crafted his own sermons and did not have to work to any RCC guidelines. However, there was also a degree of control of his attendance at the Mosque, the fact he was expected to attend thirty minutes before each prayer and stay behind thirty minutes thereafter. Further RCC also attempted to control the subject matter of his sermons and there was evidence that the Imam had to excuse non -attendance. Having regard to the documentary evidence fixing terms of engagement, the control exercised by the RCC, minimal rights of substitution and a fixed weekly salary, irrespective of absence, it was held that the true position was that the Imam was employed by the RCC committee. However, the Imam’s claim did not succeed because it was tainted by illegality.
Conclusion
Whilst research indicates that the issue of Employment rights of Imams have arisen in a number of jurisdictions, including the Arab countries, it is the writers opinion that legislative intervention is unnecessary, as the present common law position allows parties the freedom to define their relationship as they choose to meet the needs of the local community. Having said that, it is incumbent on Mosque Committees to ensure that any agreement genuinely reflects the status of the Imam.[9] Mosque Committees must also remember that employing Imams allows them to control activities within the Mosques, such as the content of the khutbah (sermon), which may be desirable in the current political climate.
[1] All India Imam Organisations and others v Union of India and others no.715 of 1990 DT-13-5-1993 – Decision of India supreme Court
[2] Shariat is the body of doctrine that regulate the lives of those who profess Islam.
[3] Hadith are sayings of the Prophet.
[4] Preston -v- President of Methodist Church [2012] UKSC 29, Baroness Hale provided authoritative account of the running of Protestant churches and the engagement of those in its service.
[5] Birmingham Mosque Trust Ltd v Alavi [1992] ICR 435
[6] Employment status in relation to statutory rights - December 2002
[7] Ur Rahman v Doncaster Jahia Mosque [2012] UKEAT 0117/12
[8] Whilst Lady Hale differed in her conclusion, her reasoning was not inconsistent to Lord Sumptions.
[9] Mosque committees consider themselves guided by the Spiritual nature of the Imam’s duties and the edicts of the Quran. However, this is not inconsistent with UK Employment Law ( Quran – ‘give just measure and weight, do not withhold from the people the things that are their due’ [11:85] – fulfill your covenants [5:1]- fulfill your engagements for every engagement will be enquired into [17:34]). Therefore terms of engagement must reflect the true position of the Imam and be detailed. "
"On the basis of the [Preston] decision it seems clear that Catholic, Orthodox or Anglican Diocesan Priests are not Employees though they might be if they were employed as Chaplains by, for example the NHS. For other religions with a much more decentralised structure such a many Free Churches, Synagogues or Mosques it is quite possible that their religious Ministers could be employees."
This view was based in part on comments in the case by Lady Hale who had noted at para 36
"It is normal for rabbis to be employed by a particular synagogue, for example."
I had actually not noticed the earlier 2012 case of Ur- Rehman v Doncaster Jahia Mosque [2012] UKEAT 0117_12_1008 where it had been accepted by both the Employment Tribunal and EAT that the Imam in question was an employee.
In a very interesting article Nabilla Mallick looks at the question "Are Imams Employees Of Mosques" and reaches the clear view that they are. The article looks at a an Employment Tribunal case Hasan v Redcoat Community Centre ( East London Employment Tribunal) which was decided that the Imam was an employee. He could bring a claim for unfair dismissal though he lost on the facts.
In view of recent tragic events in Kenya it is perhaps worth noting that the reason the Imam was sacked by the Committee was apparently the political nature of his Khutbahs (Friday Sermons).
Hasan v Redcoat Community Centre , the East London Employment Tribunal
- See more at:
http://www.no5.com/news-and-publications/publications/237-are-imams-employees-of-mosques-/#sthash.e2XVWQs2.dpuf
The Article reads (c) Nabila Mallick
"An Imam performs the duty of offering prayer for the congregation in mosques. Essentially mosques are a centre of community worship where Muslims perform ritual prayer and where historically they also gathered for political, social and cultural functions. The function of the mosque is summarised by the 13th Century jurist Ibn Taymiyah as a place of gathering where prayer was celebrated and where public affairs were conducted. Services connected to marriages or birth are not usually performed inside the mosque. The rites that are important and integral to the function of many churches such as confession, penitence and confirmation do not exist in mosques.[1]
Imams are expected to look after the cleanliness of mosque and propagate Islamic faith. They are expected to be well versed in the shariat[2], the holy Quran, the hadiths[3], ethics, philosophy, social, economic and religious aspects. The Imam like the Parish priest is expected to make himself available to his congregation whenever he is needed. However, unlike Churches who have designated clergy , mosques may have either one Imam or a number of Imams in its service. There is no hierarchy, but each Mosque Committee determines how a Mosque is to be run.
Since there is no hierarchical religious authority, it is virtually impossible for any religious body to govern the diversity [4]. Many mosque committees would argue against statutory governance of the arrangements with its Imams on the basis that they require flexibility to run the mosques to meet the needs of the differing local communities. On the other hand many Imams would point to frequent and serious denial of justice and equity when they are left with no entitlement on dismissal.[5]
The Islamic response to the dti, has been, very much in favour of the extension of employment status to Imams. The principal reason for such intervention is that it is a way of bringing order and support to Imams, who rely on salaries funded by local communities, often receiving less than the minimum wage and working ill defined hours, duties and working conditions. There can be no protection against dismissal, which can be ad hoc and capricious frequently driven by grassroots politics.[6] The question is how is balance to be maintained between the balancing the needs of the local Muslim community to that of its Imams.
Recently the in Hasan v Redcoat Community Centre , the East London Employment Tribunal had to address this issue and decided that the Imam was an employee.[7] In coming to its decision it had particular regard to the case of Preston –v- President of the Methodist Church [ 2012] UKSC 29. In that case, the Supreme Court, drew distinction between office holders defined by rules of the institution and employee defined by the contract. It further considered the spiritual nature of a minister of religion’s calling.
In giving Judgement Lord Sumption referred to the decision of Percy v Board of National Mission of Church of Scotland [2006] 2AC 28, Lord Nicholls considered an office holder an unsatisfactory criterion for determining whether the minister was an employee and concluded the two were not always mutually exclusive. Turning to the spiritual nature, Lord Nicholls recognised its relevance and cited President of the Methodist Conference v Parfitt [1984] QB 368 as a life time commitment by a minister, who could not unilaterally resign. In that case, it was concluded that the Minister was an office holder and not an employee. He held that there was no cogent reason why there should be a distinction between posts that are religious and those that are not.
In Preston, the court refused to reintroduce the concept of non contractual status and the court concluded there can be no presumption. The question of status is determined by whether there were arrangements of an employment nature at all. In finding there was no such contract, it was said that it could not ignore the fact that, because of the way the church organises its own affairs, the basis for the rights and duties is to be found in the constitutional provisions of the church. However Lady Hale dissented- it was a very specific arrangement for a particular post, at a particular time, with a particular manse and particular stipend with a particular set of responsibilities. The spiritual nature of some of the duties did not necessarily entail a different conclusion.
The Employment Tribunal, relying on Preston at § 10 of Lord Sumption’s Judgement, posed itself the question, what was the manner in which the minister (Imam) was engaged and the rule or terms governing service? This was to be considered against the fundamental spiritual purpose of the functions of ministers of religion.[8]
The Employment Tribunal was further informed by the case of Autoclenz –v- Belcher [2011] IRLR 820 and the approval by Lord Clarke of the decision of Mackenna J ‘s decision in Ready-Mix (concrete) –v- Minster of Pensions [1968] 2QB 497, - the condition of contract of service are fulfilled :
1.the servant agrees in consideration of wage or other remuneration he will provide his own skill in the performance of service
2. he agrees expressly or impliedly that in the performance of his duties he will be subject to control.
3.Other terms of contract are not inconsistent with it being a contract of service, although the freedom to do the job either by ones hand or another are, limited power of delegation may not be.
Therefore the Employment Tribunal considered that RCC is a charity that functioned through an executive committee. There was a written constitution that provided inter alia for the purpose of RCC to promote education, training, housing, arts, health and any other aspects of the lives of the local community, provide and assist leisure facilities for the Young and to promote understanding of religion in the local community. In furtherance of its objectives the Respondent was empowered to ‘employ’ anyone to meet its objectives.
The Claimant had responded to an advert and was engaged in the position of Imam with RCC until his contract was terminated because of the political nature of his Khutbahs (Friday Sermons). He was given a written document that described hours of work as full time (self employed), no statutory sick pay or holiday pay with the duty of leading the congregation in prayer, imparting Islamic education and dealing with religious queries from the local community.
There was dispute between the parties as to why the terms of engagement made reference to self employment. Although it suited the Imam to be responsible for his own income tax and National Insurance, this went to legality of the contract rather than the issue of whether he was an employee. It was noted that the Imam started his duties each day before sun rise and completed his duties an hour after sunset. He was responsible for opening and closing the mosque. On Fridays and Sundays he had extra duties of teaching the Quran. He also answered religious queries from the local community. He was only excused from such duties for the Haj period, when he substituted the Muezzin to undertake his duties, as he did some mornings when he could not attend for the morning prayer. There was a degree of autonomy in that he crafted his own sermons and did not have to work to any RCC guidelines. However, there was also a degree of control of his attendance at the Mosque, the fact he was expected to attend thirty minutes before each prayer and stay behind thirty minutes thereafter. Further RCC also attempted to control the subject matter of his sermons and there was evidence that the Imam had to excuse non -attendance. Having regard to the documentary evidence fixing terms of engagement, the control exercised by the RCC, minimal rights of substitution and a fixed weekly salary, irrespective of absence, it was held that the true position was that the Imam was employed by the RCC committee. However, the Imam’s claim did not succeed because it was tainted by illegality.
Conclusion
Whilst research indicates that the issue of Employment rights of Imams have arisen in a number of jurisdictions, including the Arab countries, it is the writers opinion that legislative intervention is unnecessary, as the present common law position allows parties the freedom to define their relationship as they choose to meet the needs of the local community. Having said that, it is incumbent on Mosque Committees to ensure that any agreement genuinely reflects the status of the Imam.[9] Mosque Committees must also remember that employing Imams allows them to control activities within the Mosques, such as the content of the khutbah (sermon), which may be desirable in the current political climate.
[1] All India Imam Organisations and others v Union of India and others no.715 of 1990 DT-13-5-1993 – Decision of India supreme Court
[2] Shariat is the body of doctrine that regulate the lives of those who profess Islam.
[3] Hadith are sayings of the Prophet.
[4] Preston -v- President of Methodist Church [2012] UKSC 29, Baroness Hale provided authoritative account of the running of Protestant churches and the engagement of those in its service.
[5] Birmingham Mosque Trust Ltd v Alavi [1992] ICR 435
[6] Employment status in relation to statutory rights - December 2002
[7] Ur Rahman v Doncaster Jahia Mosque [2012] UKEAT 0117/12
[8] Whilst Lady Hale differed in her conclusion, her reasoning was not inconsistent to Lord Sumptions.
[9] Mosque committees consider themselves guided by the Spiritual nature of the Imam’s duties and the edicts of the Quran. However, this is not inconsistent with UK Employment Law ( Quran – ‘give just measure and weight, do not withhold from the people the things that are their due’ [11:85] – fulfill your covenants [5:1]- fulfill your engagements for every engagement will be enquired into [17:34]). Therefore terms of engagement must reflect the true position of the Imam and be detailed. "
An
Imam performs the duty of offering prayer for the congregation in
mosques. Essentially mosques are a centre of community worship where
Muslims perform ritual prayer and where historically they also gathered
for political, social and cultural functions. The function of the mosque
is summarised by the 13th Century jurist Ibn Taymiyah as a
place of gathering where prayer was celebrated and where public affairs
were conducted. Services connected to marriages or birth are not usually
performed inside the mosque. The rites that are important and integral
to the function of many churches such as confession, penitence and
confirmation do not exist in mosques.[1]
Imams are expected to look after the cleanliness of mosque and propagate Islamic faith. They are expected to be well versed in the shariat[2], the holy Quran, the hadiths[3], ethics, philosophy, social, economic and religious aspects. The Imam like the Parish priest is expected to make himself available to his congregation whenever he is needed. However, unlike Churches who have designated clergy , mosques may have either one Imam or a number of Imams in its service. There is no hierarchy, but each Mosque Committee determines how a Mosque is to be run.
Since there is no hierarchical religious authority, it is virtually impossible for any religious body to govern the diversity [4]. Many mosque committees would argue against statutory governance of the arrangements with its Imams on the basis that they require flexibility to run the mosques to meet the needs of the differing local communities. On the other hand many Imams would point to frequent and serious denial of justice and equity when they are left with no entitlement on dismissal.[5]
The Islamic response to the dti, has been, very much in favour of the extension of employment status to Imams. The principal reason for such intervention is that it is a way of bringing order and support to Imams, who rely on salaries funded by local communities, often receiving less than the minimum wage and working ill defined hours, duties and working conditions. There can be no protection against dismissal, which can be ad hoc and capricious frequently driven by grassroots politics.[6] The question is how is balance to be maintained between the balancing the needs of the local Muslim community to that of its Imams.
Recently the in Hasan v Redcoat Community Centre , the East London Employment Tribunal had to address this issue and decided that the Imam was an employee.[7] In coming to its decision it had particular regard to the case of Preston –v- President of the Methodist Church [ 2012] UKSC 29. In that case, the Supreme Court, drew distinction between office holders defined by rules of the institution and employee defined by the contract. It further considered the spiritual nature of a minister of religion’s calling.
In giving Judgement Lord Sumption referred to the decision of Percy v Board of National Mission of Church of Scotland [2006] 2AC 28, Lord Nicholls considered an office holder an unsatisfactory criterion for determining whether the minister was an employee and concluded the two were not always mutually exclusive. Turning to the spiritual nature, Lord Nicholls recognised its relevance and cited President of the Methodist Conference v Parfitt [1984] QB 368 as a life time commitment by a minister, who could not unilaterally resign. In that case, it was concluded that the Minister was an office holder and not an employee. He held that there was no cogent reason why there should be a distinction between posts that are religious and those that are not.
In Preston, the court refused to reintroduce the concept of non contractual status and the court concluded there can be no presumption. The question of status is determined by whether there were arrangements of an employment nature at all. In finding there was no such contract, it was said that it could not ignore the fact that, because of the way the church organises its own affairs, the basis for the rights and duties is to be found in the constitutional provisions of the church. However Lady Hale dissented- it was a very specific arrangement for a particular post, at a particular time, with a particular manse and particular stipend with a particular set of responsibilities. The spiritual nature of some of the duties did not necessarily entail a different conclusion.
The Employment Tribunal, relying on Preston at § 10 of Lord Sumption’s Judgement, posed itself the question, what was the manner in which the minister (Imam) was engaged and the rule or terms governing service? This was to be considered against the fundamental spiritual purpose of the functions of ministers of religion.[8]
The Employment Tribunal was further informed by the case of Autoclenz –v- Belcher [2011] IRLR 820 and the approval by Lord Clarke of the decision of Mackenna J ‘s decision in Ready-Mix (concrete) –v- Minster of Pensions [1968] 2QB 497, - the condition of contract of service are fulfilled :
1.the servant agrees in consideration of wage or other remuneration he will provide his own skill in the performance of service
2. he agrees expressly or impliedly that in the performance of his duties he will be subject to control.
3.Other terms of contract are not inconsistent with it being a contract of service, although the freedom to do the job either by ones hand or another are, limited power of delegation may not be.
Therefore the Employment Tribunal considered that RCC is a charity that functioned through an executive committee. There was a written constitution that provided inter alia for the purpose of RCC to promote education, training, housing, arts, health and any other aspects of the lives of the local community, provide and assist leisure facilities for the Young and to promote understanding of religion in the local community. In furtherance of its objectives the Respondent was empowered to ‘employ’ anyone to meet its objectives.
The Claimant had responded to an advert and was engaged in the position of Imam with RCC until his contract was terminated because of the political nature of his Khutbahs (Friday Sermons). He was given a written document that described hours of work as full time (self employed), no statutory sick pay or holiday pay with the duty of leading the congregation in prayer, imparting Islamic education and dealing with religious queries from the local community.
There was dispute between the parties as to why the terms of engagement made reference to self employment. Although it suited the Imam to be responsible for his own income tax and National Insurance, this went to legality of the contract rather than the issue of whether he was an employee. It was noted that the Imam started his duties each day before sun rise and completed his duties an hour after sunset. He was responsible for opening and closing the mosque. On Fridays and Sundays he had extra duties of teaching the Quran. He also answered religious queries from the local community. He was only excused from such duties for the Haj period, when he substituted the Muezzin to undertake his duties, as he did some mornings when he could not attend for the morning prayer. There was a degree of autonomy in that he crafted his own sermons and did not have to work to any RCC guidelines. However, there was also a degree of control of his attendance at the Mosque, the fact he was expected to attend thirty minutes before each prayer and stay behind thirty minutes thereafter. Further RCC also attempted to control the subject matter of his sermons and there was evidence that the Imam had to excuse non -attendance. Having regard to the documentary evidence fixing terms of engagement, the control exercised by the RCC, minimal rights of substitution and a fixed weekly salary, irrespective of absence, it was held that the true position was that the Imam was employed by the RCC committee. However, the Imam’s claim did not succeed because it was tainted by illegality.
Conclusion
Whilst research indicates that the issue of Employment rights of Imams have arisen in a number of jurisdictions, including the Arab countries, it is the writers opinion that legislative intervention is unnecessary, as the present common law position allows parties the freedom to define their relationship as they choose to meet the needs of the local community. Having said that, it is incumbent on Mosque Committees to ensure that any agreement genuinely reflects the status of the Imam.[9] Mosque Committees must also remember that employing Imams allows them to control activities within the Mosques, such as the content of the khutbah (sermon), which may be desirable in the current political climate.
The writer practices in the field of Employment Law and studied Islamic Jurisprudence at undergraduate level, she can be contacted to provide advice to Mosque Committees on the drafting of agreements, employee handbook to encompass Islamic doctrine and all matters concerning employment, in particular, disciplinary and grievance procedures.
Please click here to view Nabila Mallick's profile.
- See more at: http://www.no5.com/news-and-publications/publications/237-are-imams-employees-of-mosques-/#sthash.zDwCA2Mg.dpuf
Imams are expected to look after the cleanliness of mosque and propagate Islamic faith. They are expected to be well versed in the shariat[2], the holy Quran, the hadiths[3], ethics, philosophy, social, economic and religious aspects. The Imam like the Parish priest is expected to make himself available to his congregation whenever he is needed. However, unlike Churches who have designated clergy , mosques may have either one Imam or a number of Imams in its service. There is no hierarchy, but each Mosque Committee determines how a Mosque is to be run.
Since there is no hierarchical religious authority, it is virtually impossible for any religious body to govern the diversity [4]. Many mosque committees would argue against statutory governance of the arrangements with its Imams on the basis that they require flexibility to run the mosques to meet the needs of the differing local communities. On the other hand many Imams would point to frequent and serious denial of justice and equity when they are left with no entitlement on dismissal.[5]
The Islamic response to the dti, has been, very much in favour of the extension of employment status to Imams. The principal reason for such intervention is that it is a way of bringing order and support to Imams, who rely on salaries funded by local communities, often receiving less than the minimum wage and working ill defined hours, duties and working conditions. There can be no protection against dismissal, which can be ad hoc and capricious frequently driven by grassroots politics.[6] The question is how is balance to be maintained between the balancing the needs of the local Muslim community to that of its Imams.
Recently the in Hasan v Redcoat Community Centre , the East London Employment Tribunal had to address this issue and decided that the Imam was an employee.[7] In coming to its decision it had particular regard to the case of Preston –v- President of the Methodist Church [ 2012] UKSC 29. In that case, the Supreme Court, drew distinction between office holders defined by rules of the institution and employee defined by the contract. It further considered the spiritual nature of a minister of religion’s calling.
In giving Judgement Lord Sumption referred to the decision of Percy v Board of National Mission of Church of Scotland [2006] 2AC 28, Lord Nicholls considered an office holder an unsatisfactory criterion for determining whether the minister was an employee and concluded the two were not always mutually exclusive. Turning to the spiritual nature, Lord Nicholls recognised its relevance and cited President of the Methodist Conference v Parfitt [1984] QB 368 as a life time commitment by a minister, who could not unilaterally resign. In that case, it was concluded that the Minister was an office holder and not an employee. He held that there was no cogent reason why there should be a distinction between posts that are religious and those that are not.
In Preston, the court refused to reintroduce the concept of non contractual status and the court concluded there can be no presumption. The question of status is determined by whether there were arrangements of an employment nature at all. In finding there was no such contract, it was said that it could not ignore the fact that, because of the way the church organises its own affairs, the basis for the rights and duties is to be found in the constitutional provisions of the church. However Lady Hale dissented- it was a very specific arrangement for a particular post, at a particular time, with a particular manse and particular stipend with a particular set of responsibilities. The spiritual nature of some of the duties did not necessarily entail a different conclusion.
The Employment Tribunal, relying on Preston at § 10 of Lord Sumption’s Judgement, posed itself the question, what was the manner in which the minister (Imam) was engaged and the rule or terms governing service? This was to be considered against the fundamental spiritual purpose of the functions of ministers of religion.[8]
The Employment Tribunal was further informed by the case of Autoclenz –v- Belcher [2011] IRLR 820 and the approval by Lord Clarke of the decision of Mackenna J ‘s decision in Ready-Mix (concrete) –v- Minster of Pensions [1968] 2QB 497, - the condition of contract of service are fulfilled :
1.the servant agrees in consideration of wage or other remuneration he will provide his own skill in the performance of service
2. he agrees expressly or impliedly that in the performance of his duties he will be subject to control.
3.Other terms of contract are not inconsistent with it being a contract of service, although the freedom to do the job either by ones hand or another are, limited power of delegation may not be.
Therefore the Employment Tribunal considered that RCC is a charity that functioned through an executive committee. There was a written constitution that provided inter alia for the purpose of RCC to promote education, training, housing, arts, health and any other aspects of the lives of the local community, provide and assist leisure facilities for the Young and to promote understanding of religion in the local community. In furtherance of its objectives the Respondent was empowered to ‘employ’ anyone to meet its objectives.
The Claimant had responded to an advert and was engaged in the position of Imam with RCC until his contract was terminated because of the political nature of his Khutbahs (Friday Sermons). He was given a written document that described hours of work as full time (self employed), no statutory sick pay or holiday pay with the duty of leading the congregation in prayer, imparting Islamic education and dealing with religious queries from the local community.
There was dispute between the parties as to why the terms of engagement made reference to self employment. Although it suited the Imam to be responsible for his own income tax and National Insurance, this went to legality of the contract rather than the issue of whether he was an employee. It was noted that the Imam started his duties each day before sun rise and completed his duties an hour after sunset. He was responsible for opening and closing the mosque. On Fridays and Sundays he had extra duties of teaching the Quran. He also answered religious queries from the local community. He was only excused from such duties for the Haj period, when he substituted the Muezzin to undertake his duties, as he did some mornings when he could not attend for the morning prayer. There was a degree of autonomy in that he crafted his own sermons and did not have to work to any RCC guidelines. However, there was also a degree of control of his attendance at the Mosque, the fact he was expected to attend thirty minutes before each prayer and stay behind thirty minutes thereafter. Further RCC also attempted to control the subject matter of his sermons and there was evidence that the Imam had to excuse non -attendance. Having regard to the documentary evidence fixing terms of engagement, the control exercised by the RCC, minimal rights of substitution and a fixed weekly salary, irrespective of absence, it was held that the true position was that the Imam was employed by the RCC committee. However, the Imam’s claim did not succeed because it was tainted by illegality.
Conclusion
Whilst research indicates that the issue of Employment rights of Imams have arisen in a number of jurisdictions, including the Arab countries, it is the writers opinion that legislative intervention is unnecessary, as the present common law position allows parties the freedom to define their relationship as they choose to meet the needs of the local community. Having said that, it is incumbent on Mosque Committees to ensure that any agreement genuinely reflects the status of the Imam.[9] Mosque Committees must also remember that employing Imams allows them to control activities within the Mosques, such as the content of the khutbah (sermon), which may be desirable in the current political climate.
The writer practices in the field of Employment Law and studied Islamic Jurisprudence at undergraduate level, she can be contacted to provide advice to Mosque Committees on the drafting of agreements, employee handbook to encompass Islamic doctrine and all matters concerning employment, in particular, disciplinary and grievance procedures.
Please click here to view Nabila Mallick's profile.
[1]
All India Imam Organisations and others v Union of India and others
no.715 of 1990 DT-13-5-1993 – Decision of India supreme Court
[2] Shariat is the body of doctrine that regulate the lives of those who profess Islam.
[3] Hadith are sayings of the Prophet.
[4]
Preston -v- President of Methodist Church [2012] UKSC 29, Baroness Hale
provided authoritative account of the running of Protestant churches
and the engagement of those in its service.
[5] Birmingham Mosque Trust Ltd v Alavi [1992] ICR 435
[6] Employment status in relation to statutory rights - December 2002
[7] Ur Rahman v Doncaster Jahia Mosque [2012] UKEAT 0117/12
[8] Whilst Lady Hale differed in her conclusion, her reasoning was not inconsistent to Lord Sumptions.
[9]
Mosque committees consider themselves guided by the Spiritual nature of
the Imam’s duties and the edicts of the Quran. However, this is not
inconsistent with UK Employment Law ( Quran – ‘give just measure and
weight, do not withhold from the people the things that are their due’
[11:85] – fulfill your covenants [5:1]- fulfill your engagements for
every engagement will be enquired into [17:34]). Therefore terms of
engagement must reflect the true position of the Imam and be detailed.
An
Imam performs the duty of offering prayer for the congregation in
mosques. Essentially mosques are a centre of community worship where
Muslims perform ritual prayer and where historically they also gathered
for political, social and cultural functions. The function of the mosque
is summarised by the 13th Century jurist Ibn Taymiyah as a
place of gathering where prayer was celebrated and where public affairs
were conducted. Services connected to marriages or birth are not usually
performed inside the mosque. The rites that are important and integral
to the function of many churches such as confession, penitence and
confirmation do not exist in mosques.[1]
Imams are expected to look after the cleanliness of mosque and propagate Islamic faith. They are expected to be well versed in the shariat[2], the holy Quran, the hadiths[3], ethics, philosophy, social, economic and religious aspects. The Imam like the Parish priest is expected to make himself available to his congregation whenever he is needed. However, unlike Churches who have designated clergy , mosques may have either one Imam or a number of Imams in its service. There is no hierarchy, but each Mosque Committee determines how a Mosque is to be run.
Since there is no hierarchical religious authority, it is virtually impossible for any religious body to govern the diversity [4]. Many mosque committees would argue against statutory governance of the arrangements with its Imams on the basis that they require flexibility to run the mosques to meet the needs of the differing local communities. On the other hand many Imams would point to frequent and serious denial of justice and equity when they are left with no entitlement on dismissal.[5]
The Islamic response to the dti, has been, very much in favour of the extension of employment status to Imams. The principal reason for such intervention is that it is a way of bringing order and support to Imams, who rely on salaries funded by local communities, often receiving less than the minimum wage and working ill defined hours, duties and working conditions. There can be no protection against dismissal, which can be ad hoc and capricious frequently driven by grassroots politics.[6] The question is how is balance to be maintained between the balancing the needs of the local Muslim community to that of its Imams.
Recently the in Hasan v Redcoat Community Centre , the East London Employment Tribunal had to address this issue and decided that the Imam was an employee.[7] In coming to its decision it had particular regard to the case of Preston –v- President of the Methodist Church [ 2012] UKSC 29. In that case, the Supreme Court, drew distinction between office holders defined by rules of the institution and employee defined by the contract. It further considered the spiritual nature of a minister of religion’s calling.
In giving Judgement Lord Sumption referred to the decision of Percy v Board of National Mission of Church of Scotland [2006] 2AC 28, Lord Nicholls considered an office holder an unsatisfactory criterion for determining whether the minister was an employee and concluded the two were not always mutually exclusive. Turning to the spiritual nature, Lord Nicholls recognised its relevance and cited President of the Methodist Conference v Parfitt [1984] QB 368 as a life time commitment by a minister, who could not unilaterally resign. In that case, it was concluded that the Minister was an office holder and not an employee. He held that there was no cogent reason why there should be a distinction between posts that are religious and those that are not.
In Preston, the court refused to reintroduce the concept of non contractual status and the court concluded there can be no presumption. The question of status is determined by whether there were arrangements of an employment nature at all. In finding there was no such contract, it was said that it could not ignore the fact that, because of the way the church organises its own affairs, the basis for the rights and duties is to be found in the constitutional provisions of the church. However Lady Hale dissented- it was a very specific arrangement for a particular post, at a particular time, with a particular manse and particular stipend with a particular set of responsibilities. The spiritual nature of some of the duties did not necessarily entail a different conclusion.
The Employment Tribunal, relying on Preston at § 10 of Lord Sumption’s Judgement, posed itself the question, what was the manner in which the minister (Imam) was engaged and the rule or terms governing service? This was to be considered against the fundamental spiritual purpose of the functions of ministers of religion.[8]
The Employment Tribunal was further informed by the case of Autoclenz –v- Belcher [2011] IRLR 820 and the approval by Lord Clarke of the decision of Mackenna J ‘s decision in Ready-Mix (concrete) –v- Minster of Pensions [1968] 2QB 497, - the condition of contract of service are fulfilled :
1.the servant agrees in consideration of wage or other remuneration he will provide his own skill in the performance of service
2. he agrees expressly or impliedly that in the performance of his duties he will be subject to control.
3.Other terms of contract are not inconsistent with it being a contract of service, although the freedom to do the job either by ones hand or another are, limited power of delegation may not be.
Therefore the Employment Tribunal considered that RCC is a charity that functioned through an executive committee. There was a written constitution that provided inter alia for the purpose of RCC to promote education, training, housing, arts, health and any other aspects of the lives of the local community, provide and assist leisure facilities for the Young and to promote understanding of religion in the local community. In furtherance of its objectives the Respondent was empowered to ‘employ’ anyone to meet its objectives.
The Claimant had responded to an advert and was engaged in the position of Imam with RCC until his contract was terminated because of the political nature of his Khutbahs (Friday Sermons). He was given a written document that described hours of work as full time (self employed), no statutory sick pay or holiday pay with the duty of leading the congregation in prayer, imparting Islamic education and dealing with religious queries from the local community.
There was dispute between the parties as to why the terms of engagement made reference to self employment. Although it suited the Imam to be responsible for his own income tax and National Insurance, this went to legality of the contract rather than the issue of whether he was an employee. It was noted that the Imam started his duties each day before sun rise and completed his duties an hour after sunset. He was responsible for opening and closing the mosque. On Fridays and Sundays he had extra duties of teaching the Quran. He also answered religious queries from the local community. He was only excused from such duties for the Haj period, when he substituted the Muezzin to undertake his duties, as he did some mornings when he could not attend for the morning prayer. There was a degree of autonomy in that he crafted his own sermons and did not have to work to any RCC guidelines. However, there was also a degree of control of his attendance at the Mosque, the fact he was expected to attend thirty minutes before each prayer and stay behind thirty minutes thereafter. Further RCC also attempted to control the subject matter of his sermons and there was evidence that the Imam had to excuse non -attendance. Having regard to the documentary evidence fixing terms of engagement, the control exercised by the RCC, minimal rights of substitution and a fixed weekly salary, irrespective of absence, it was held that the true position was that the Imam was employed by the RCC committee. However, the Imam’s claim did not succeed because it was tainted by illegality.
Conclusion
Whilst research indicates that the issue of Employment rights of Imams have arisen in a number of jurisdictions, including the Arab countries, it is the writers opinion that legislative intervention is unnecessary, as the present common law position allows parties the freedom to define their relationship as they choose to meet the needs of the local community. Having said that, it is incumbent on Mosque Committees to ensure that any agreement genuinely reflects the status of the Imam.[9] Mosque Committees must also remember that employing Imams allows them to control activities within the Mosques, such as the content of the khutbah (sermon), which may be desirable in the current political climate.
The writer practices in the field of Employment Law and studied Islamic Jurisprudence at undergraduate level, she can be contacted to provide advice to Mosque Committees on the drafting of agreements, employee handbook to encompass Islamic doctrine and all matters concerning employment, in particular, disciplinary and grievance procedures.
Please click here to view Nabila Mallick's profile.
- See more at: http://www.no5.com/news-and-publications/publications/237-are-imams-employees-of-mosques-/#sthash.zDwCA2Mg.dpuf
Imams are expected to look after the cleanliness of mosque and propagate Islamic faith. They are expected to be well versed in the shariat[2], the holy Quran, the hadiths[3], ethics, philosophy, social, economic and religious aspects. The Imam like the Parish priest is expected to make himself available to his congregation whenever he is needed. However, unlike Churches who have designated clergy , mosques may have either one Imam or a number of Imams in its service. There is no hierarchy, but each Mosque Committee determines how a Mosque is to be run.
Since there is no hierarchical religious authority, it is virtually impossible for any religious body to govern the diversity [4]. Many mosque committees would argue against statutory governance of the arrangements with its Imams on the basis that they require flexibility to run the mosques to meet the needs of the differing local communities. On the other hand many Imams would point to frequent and serious denial of justice and equity when they are left with no entitlement on dismissal.[5]
The Islamic response to the dti, has been, very much in favour of the extension of employment status to Imams. The principal reason for such intervention is that it is a way of bringing order and support to Imams, who rely on salaries funded by local communities, often receiving less than the minimum wage and working ill defined hours, duties and working conditions. There can be no protection against dismissal, which can be ad hoc and capricious frequently driven by grassroots politics.[6] The question is how is balance to be maintained between the balancing the needs of the local Muslim community to that of its Imams.
Recently the in Hasan v Redcoat Community Centre , the East London Employment Tribunal had to address this issue and decided that the Imam was an employee.[7] In coming to its decision it had particular regard to the case of Preston –v- President of the Methodist Church [ 2012] UKSC 29. In that case, the Supreme Court, drew distinction between office holders defined by rules of the institution and employee defined by the contract. It further considered the spiritual nature of a minister of religion’s calling.
In giving Judgement Lord Sumption referred to the decision of Percy v Board of National Mission of Church of Scotland [2006] 2AC 28, Lord Nicholls considered an office holder an unsatisfactory criterion for determining whether the minister was an employee and concluded the two were not always mutually exclusive. Turning to the spiritual nature, Lord Nicholls recognised its relevance and cited President of the Methodist Conference v Parfitt [1984] QB 368 as a life time commitment by a minister, who could not unilaterally resign. In that case, it was concluded that the Minister was an office holder and not an employee. He held that there was no cogent reason why there should be a distinction between posts that are religious and those that are not.
In Preston, the court refused to reintroduce the concept of non contractual status and the court concluded there can be no presumption. The question of status is determined by whether there were arrangements of an employment nature at all. In finding there was no such contract, it was said that it could not ignore the fact that, because of the way the church organises its own affairs, the basis for the rights and duties is to be found in the constitutional provisions of the church. However Lady Hale dissented- it was a very specific arrangement for a particular post, at a particular time, with a particular manse and particular stipend with a particular set of responsibilities. The spiritual nature of some of the duties did not necessarily entail a different conclusion.
The Employment Tribunal, relying on Preston at § 10 of Lord Sumption’s Judgement, posed itself the question, what was the manner in which the minister (Imam) was engaged and the rule or terms governing service? This was to be considered against the fundamental spiritual purpose of the functions of ministers of religion.[8]
The Employment Tribunal was further informed by the case of Autoclenz –v- Belcher [2011] IRLR 820 and the approval by Lord Clarke of the decision of Mackenna J ‘s decision in Ready-Mix (concrete) –v- Minster of Pensions [1968] 2QB 497, - the condition of contract of service are fulfilled :
1.the servant agrees in consideration of wage or other remuneration he will provide his own skill in the performance of service
2. he agrees expressly or impliedly that in the performance of his duties he will be subject to control.
3.Other terms of contract are not inconsistent with it being a contract of service, although the freedom to do the job either by ones hand or another are, limited power of delegation may not be.
Therefore the Employment Tribunal considered that RCC is a charity that functioned through an executive committee. There was a written constitution that provided inter alia for the purpose of RCC to promote education, training, housing, arts, health and any other aspects of the lives of the local community, provide and assist leisure facilities for the Young and to promote understanding of religion in the local community. In furtherance of its objectives the Respondent was empowered to ‘employ’ anyone to meet its objectives.
The Claimant had responded to an advert and was engaged in the position of Imam with RCC until his contract was terminated because of the political nature of his Khutbahs (Friday Sermons). He was given a written document that described hours of work as full time (self employed), no statutory sick pay or holiday pay with the duty of leading the congregation in prayer, imparting Islamic education and dealing with religious queries from the local community.
There was dispute between the parties as to why the terms of engagement made reference to self employment. Although it suited the Imam to be responsible for his own income tax and National Insurance, this went to legality of the contract rather than the issue of whether he was an employee. It was noted that the Imam started his duties each day before sun rise and completed his duties an hour after sunset. He was responsible for opening and closing the mosque. On Fridays and Sundays he had extra duties of teaching the Quran. He also answered religious queries from the local community. He was only excused from such duties for the Haj period, when he substituted the Muezzin to undertake his duties, as he did some mornings when he could not attend for the morning prayer. There was a degree of autonomy in that he crafted his own sermons and did not have to work to any RCC guidelines. However, there was also a degree of control of his attendance at the Mosque, the fact he was expected to attend thirty minutes before each prayer and stay behind thirty minutes thereafter. Further RCC also attempted to control the subject matter of his sermons and there was evidence that the Imam had to excuse non -attendance. Having regard to the documentary evidence fixing terms of engagement, the control exercised by the RCC, minimal rights of substitution and a fixed weekly salary, irrespective of absence, it was held that the true position was that the Imam was employed by the RCC committee. However, the Imam’s claim did not succeed because it was tainted by illegality.
Conclusion
Whilst research indicates that the issue of Employment rights of Imams have arisen in a number of jurisdictions, including the Arab countries, it is the writers opinion that legislative intervention is unnecessary, as the present common law position allows parties the freedom to define their relationship as they choose to meet the needs of the local community. Having said that, it is incumbent on Mosque Committees to ensure that any agreement genuinely reflects the status of the Imam.[9] Mosque Committees must also remember that employing Imams allows them to control activities within the Mosques, such as the content of the khutbah (sermon), which may be desirable in the current political climate.
The writer practices in the field of Employment Law and studied Islamic Jurisprudence at undergraduate level, she can be contacted to provide advice to Mosque Committees on the drafting of agreements, employee handbook to encompass Islamic doctrine and all matters concerning employment, in particular, disciplinary and grievance procedures.
Please click here to view Nabila Mallick's profile.
[1]
All India Imam Organisations and others v Union of India and others
no.715 of 1990 DT-13-5-1993 – Decision of India supreme Court
[2] Shariat is the body of doctrine that regulate the lives of those who profess Islam.
[3] Hadith are sayings of the Prophet.
[4]
Preston -v- President of Methodist Church [2012] UKSC 29, Baroness Hale
provided authoritative account of the running of Protestant churches
and the engagement of those in its service.
[5] Birmingham Mosque Trust Ltd v Alavi [1992] ICR 435
[6] Employment status in relation to statutory rights - December 2002
[7] Ur Rahman v Doncaster Jahia Mosque [2012] UKEAT 0117/12
[8] Whilst Lady Hale differed in her conclusion, her reasoning was not inconsistent to Lord Sumptions.
[9]
Mosque committees consider themselves guided by the Spiritual nature of
the Imam’s duties and the edicts of the Quran. However, this is not
inconsistent with UK Employment Law ( Quran – ‘give just measure and
weight, do not withhold from the people the things that are their due’
[11:85] – fulfill your covenants [5:1]- fulfill your engagements for
every engagement will be enquired into [17:34]). Therefore terms of
engagement must reflect the true position of the Imam and be detailed.
DREW v WALSALL HEALTHCARE NHS TRUST - Prayers in Work
The case of Drew v Walsall Healthcare NHS Trust [2013] UKEAT 0378_12_2009 raises again the vexed question of how far an individual can bring their personal religious beliefs into the workplace.
Dr Drew was employed by the NHS as a Paediatric consultant. He worked in what was described as a "multicultural and multi-faith department". Problems within the department arose because Dr Drew apparently habitually used Christian references in his professional communications with others. News reports on the case have made reference to the fact that on one occasion he distributed an email containing a prayer by St Ignatius Loyola which he personally had found motivational in the past
An internal investigation made a recommendation, among others, that he should keep his personal views and religious beliefs to himself and should not impose them on others. The Appellant did not accept the recommendation and took out a grievance which led to an independent review of the situation. This led to a report which amongst other things recommended that Dr Drew should refrain from any religious references in his professional communications.
All the relevant staff accepted the panel's recommendations, except Dr Drew and his refusal ultimately led to disciplinary proceedings and eventual dismissal. Dr Drew claimed that he had been discriminated against on religious grounds, had been victimized and had been unfairly dismissed. The Employment Tribunal rejected his claims as did the EAT
On appeal multiple grounds were argued but all failed. The EAT stated that the ET had correctly directed themselves to follow the guidance given by the EAT in Islington v. Ladele [2008] UKEAT 0453_08_1912 They had identified correctly a hypothetical comparator (having rejected the Appellant's actual comparator, a conclusion which was not attacked on appeal) as someone whose relevant circumstances were the same as those of the Appellant save for his protected characteristic, described by the Appellant as that of being an "orthodox Christian", and who acted as the Appellant had done but used terms relating to his own religious belief system or non-religious or atheist belief system and were entitled to conclude that such a comparator would have been treated in the same way.
Much of the judgment dealt with the vexed question of the appropriate "comparator" and the EAT noted the particular difficulty of finding the appropriate comparator in Religious Discrimination cases
57 We have some sympathy for anyone who has to identify an appropriate hypothetical comparator in the context of this particular form of discrimination and are not critical of Mr McIlroy's attempts to nail down a convincing rationale for his criticism of the Tribunal's conclusions on this issue. The exercise of identifying an appropriate hypothetical comparator is not straightforward, as the EAT said in Ladele at paragraph 35; the Tribunal could have avoided the exercise by going directly to determination of the reason why Dr Drew was treated as he was – see Ladele, paragraphs 37 and 38 – but they were clearly entitled to seek to identify the appropriate comparator and indeed received extensive submissions on the topic. Neither Mr McIlroy nor Ms Misra criticised the Tribunal for seeking to resolve the arguments between the parties as to the correct hypothetical comparator or for deciding that "reason why" issue by reference to a hypothetical comparator, as they did.
58 In our judgment, it being clear that Dr Drew's case was that he was discriminated against because of his orthodox Christian beliefs the Tribunal did not err in law in determining that the hypothetical comparator, who was in the same or not materially different circumstances, was a person in Dr Drew's position – i.e. a consultant paediatrician – who in the course of his work made references to which others objected based on his own religious or non-religious belief system. The second sentence of paragraph 100(2) of the Tribunal's judgment, in rather fuller terms, is, in our judgment, correct or at least sets out a solution which was open to the Tribunal. There would have been no basis for restricting the comparator in the context of this case, in which Dr Drew claimed discrimination on the grounds of his orthodox Christian beliefs, for excluding a comparison of a consultant paediatrician of a different religion. Dr Drew's case was not that Dr Rashid or the Trust were discriminating against all religions as opposed to a non-religious belief system; the Tribunal were not in error in failing to restrict the comparator to one who was an atheist.
Though the case does demonstrate again the difficulties in establishing Religious Discrimination claims the case is extremely fact specific and probably provides little assistance in other similar situations. The point that seems to come over generally in the judgment is that personal relationships had broken down between Dr Drew and his work colleagues for reasons which had more to do with personality clashes than with Religion
Dr Drew was employed by the NHS as a Paediatric consultant. He worked in what was described as a "multicultural and multi-faith department". Problems within the department arose because Dr Drew apparently habitually used Christian references in his professional communications with others. News reports on the case have made reference to the fact that on one occasion he distributed an email containing a prayer by St Ignatius Loyola which he personally had found motivational in the past
An internal investigation made a recommendation, among others, that he should keep his personal views and religious beliefs to himself and should not impose them on others. The Appellant did not accept the recommendation and took out a grievance which led to an independent review of the situation. This led to a report which amongst other things recommended that Dr Drew should refrain from any religious references in his professional communications.
All the relevant staff accepted the panel's recommendations, except Dr Drew and his refusal ultimately led to disciplinary proceedings and eventual dismissal. Dr Drew claimed that he had been discriminated against on religious grounds, had been victimized and had been unfairly dismissed. The Employment Tribunal rejected his claims as did the EAT
On appeal multiple grounds were argued but all failed. The EAT stated that the ET had correctly directed themselves to follow the guidance given by the EAT in Islington v. Ladele [2008] UKEAT 0453_08_1912 They had identified correctly a hypothetical comparator (having rejected the Appellant's actual comparator, a conclusion which was not attacked on appeal) as someone whose relevant circumstances were the same as those of the Appellant save for his protected characteristic, described by the Appellant as that of being an "orthodox Christian", and who acted as the Appellant had done but used terms relating to his own religious belief system or non-religious or atheist belief system and were entitled to conclude that such a comparator would have been treated in the same way.
Much of the judgment dealt with the vexed question of the appropriate "comparator" and the EAT noted the particular difficulty of finding the appropriate comparator in Religious Discrimination cases
57 We have some sympathy for anyone who has to identify an appropriate hypothetical comparator in the context of this particular form of discrimination and are not critical of Mr McIlroy's attempts to nail down a convincing rationale for his criticism of the Tribunal's conclusions on this issue. The exercise of identifying an appropriate hypothetical comparator is not straightforward, as the EAT said in Ladele at paragraph 35; the Tribunal could have avoided the exercise by going directly to determination of the reason why Dr Drew was treated as he was – see Ladele, paragraphs 37 and 38 – but they were clearly entitled to seek to identify the appropriate comparator and indeed received extensive submissions on the topic. Neither Mr McIlroy nor Ms Misra criticised the Tribunal for seeking to resolve the arguments between the parties as to the correct hypothetical comparator or for deciding that "reason why" issue by reference to a hypothetical comparator, as they did.
58 In our judgment, it being clear that Dr Drew's case was that he was discriminated against because of his orthodox Christian beliefs the Tribunal did not err in law in determining that the hypothetical comparator, who was in the same or not materially different circumstances, was a person in Dr Drew's position – i.e. a consultant paediatrician – who in the course of his work made references to which others objected based on his own religious or non-religious belief system. The second sentence of paragraph 100(2) of the Tribunal's judgment, in rather fuller terms, is, in our judgment, correct or at least sets out a solution which was open to the Tribunal. There would have been no basis for restricting the comparator in the context of this case, in which Dr Drew claimed discrimination on the grounds of his orthodox Christian beliefs, for excluding a comparison of a consultant paediatrician of a different religion. Dr Drew's case was not that Dr Rashid or the Trust were discriminating against all religions as opposed to a non-religious belief system; the Tribunal were not in error in failing to restrict the comparator to one who was an atheist.
Though the case does demonstrate again the difficulties in establishing Religious Discrimination claims the case is extremely fact specific and probably provides little assistance in other similar situations. The point that seems to come over generally in the judgment is that personal relationships had broken down between Dr Drew and his work colleagues for reasons which had more to do with personality clashes than with Religion
Sunday, 8 September 2013
Is Sex Selective Abortion Illegal ?
The Crown Prosecution Service has issued a Statement on Abortion Related Case which has aroused considerable controversy. In simple terms it concerns a expose investigation by the Daily Telegraph Newspaper which demonstrated that some Doctors would perform Abortions where the only reason was because of the sex of the Unborn Child. The usual assumption is that the unborn child is female and that is the reason for the Abortion, sadly such Gendercide is now common in some parts of the world where it is causing dangerously unbalanced Male-Female ratios.
The facts were reported to the CPS which in its unconvincing statement says that
"The Abortion Act 1967 allows for an abortion in a limited range of circumstances but not purely on the basis of not wanting a child of a specific gender."
but then adds that it is "not in the public interest" to bring prosecutions in this case. That decision has not unreasonably aroused controversy since it seems to be saying that Doctors can get away with breaking the law.
I however have a different perspective since right from the start of this controversy I have taken the view that Sex Selective Abortion is not illegal. In my opinion as a former Crown Prosecutor the CPS knew that if it brought a Prosecution it would probably lose the case.
I want to make it clear that in saying this I am not speaking as a supporter of Sex Selective Abortion or indeed any other form of Abortion because all forms of Abortion are morally repugnant and involve the cold blooding killing of an innocent unborn child. However I cannot see why sex selective Abortion should be considered more morally repugnant than any other form of Abortion and speaking purely as a lawyer and in the terms under which our law permits Abortion I cannot see on what basis Sex Selective Abortion is illegal.
The Abortion Act 1967 s1 sets out the terms under which Abortion is legal in Britain
1(1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—
(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or
(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or
(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or
(d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
(2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) or (b) of subsection (1) of this section, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.
The main clause under which the majority of Abortions are carried out is s1(1)(a) and is used for a wide variety of Abortions for "social" reasons. It is, sadly, commonplace for Abortions to be carried out simply because the sexual relationship has finished, or was no more than a "one night stand", or because the woman has simply changed her mind and does not want a child, or because it may cause "inconvenience" to an existing relationship or even cause difficulties at work. I am reliably informed that where female students find themselves pregnant they are routinely pushed by their University in the direction of either having an Abortion or abandoning their University course.
All of these "reasons" for an Abortion are accommodated under the provisions of s1(1)(a) so why should a woman not be similarly accommodated if her reason for wanting an Abortion is the sex of the Child ? After all ethical guidance from the British Medical Association states that a Doctor (my emphasis)
"must not imply or express disapproval of the patient’s lifestyle, choices or beliefs"
why therefore should a womans choice regarding the desired sex of her baby be disapproved of if any other reason for choosing an Abortion cannot be disapproved of ?
The newspaper discussions on sex selective Abortion have assumed that it is accepted by Medical experts that such an Abortion is clearly illegal but that is not the view of the British Medical Association which in a booklet The law and ethics of abortion says (my emphasis)
1.7 Abortion on grounds of fetal sex
Fetal sex is not one of the criteria for abortion listed in the Abortion Act of 1967 and therefore termination on this ground alone has been challenged as outwith the law. There may be circumstances, however, in which termination of pregnancy on grounds of fetal sex would be lawful. It has been suggested that if two doctors, acting in good faith, formed the opinion that the pregnant woman's health or that of her existing children would be put at greater risk than if she terminated the pregnancy, the abortion would be arguably lawful under section 1(1)(a) of the Abortion Act. The Association believes that it is normally unethical to terminate a pregnancy on the grounds of fetal sex alone except in cases of severe x-linked disorders. The pregnant woman's views about the effect of the sex of the fetus on her situation and on her existing children should nevertheless be carefully considered. In some circumstances doctors may come to the conclusion that the effects are so severe as to provide ethical justification for a termination. They should be prepared to justify the decision if it were challenged.
The issue therefore is accepted as not clear from doubt. Section 1(2) of the Abortion Act may also be particularly relevant as a defence for any Doctor who was charged with conducting a sex selective Abortion (my emphasis)
(2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) or (b) of subsection (1) of this section, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.
Therefore if the woman is in an "environment" where the sex of the baby was relevant for example where there are cultural pressures to have a boy or where there is already one child of a particular sex and the couple either want their next child to be a different sex to their sibling or want it to be of the same sex then an Abortion would be legally justified.
I repeat again I am not defending the practice of Sex Selective Abortion nor am I defending these particular Doctors other than to say that they are morally no worse than most other Doctors performing or authorising Abortions.
My point is not to defend them but rather to explain why they were not prosecuted. The fact is that any prosecution of these Doctors would have been very problematic and they would probably have been acquited. The CPS, not unreasonably, took a look at the legal, ethical and political complexities involved and decided to make the feeble excuse that prosecution was not in the public interest. The CPS should have been franker and admitted that their real reason for not prosecuting was that there was "No realistic prospect of Conviction". According to the "Code for Crown Prosecutors" that is a perfectly valid reason for not prosecuting but stating the fact publicly would have made it obvious to everyone that the Abortion Act 1967 is a moral and legal mess.
I also have permission from Dr Ellie Lee from the University of Kent to add a link to her interesting article"Sex selection: what Britain’s Abortion Law Really Says" at the Spiked-Online website
The facts were reported to the CPS which in its unconvincing statement says that
"The Abortion Act 1967 allows for an abortion in a limited range of circumstances but not purely on the basis of not wanting a child of a specific gender."
but then adds that it is "not in the public interest" to bring prosecutions in this case. That decision has not unreasonably aroused controversy since it seems to be saying that Doctors can get away with breaking the law.
I however have a different perspective since right from the start of this controversy I have taken the view that Sex Selective Abortion is not illegal. In my opinion as a former Crown Prosecutor the CPS knew that if it brought a Prosecution it would probably lose the case.
I want to make it clear that in saying this I am not speaking as a supporter of Sex Selective Abortion or indeed any other form of Abortion because all forms of Abortion are morally repugnant and involve the cold blooding killing of an innocent unborn child. However I cannot see why sex selective Abortion should be considered more morally repugnant than any other form of Abortion and speaking purely as a lawyer and in the terms under which our law permits Abortion I cannot see on what basis Sex Selective Abortion is illegal.
The Abortion Act 1967 s1 sets out the terms under which Abortion is legal in Britain
1(1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—
(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or
(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or
(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or
(d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
(2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) or (b) of subsection (1) of this section, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.
The main clause under which the majority of Abortions are carried out is s1(1)(a) and is used for a wide variety of Abortions for "social" reasons. It is, sadly, commonplace for Abortions to be carried out simply because the sexual relationship has finished, or was no more than a "one night stand", or because the woman has simply changed her mind and does not want a child, or because it may cause "inconvenience" to an existing relationship or even cause difficulties at work. I am reliably informed that where female students find themselves pregnant they are routinely pushed by their University in the direction of either having an Abortion or abandoning their University course.
All of these "reasons" for an Abortion are accommodated under the provisions of s1(1)(a) so why should a woman not be similarly accommodated if her reason for wanting an Abortion is the sex of the Child ? After all ethical guidance from the British Medical Association states that a Doctor (my emphasis)
"must not imply or express disapproval of the patient’s lifestyle, choices or beliefs"
why therefore should a womans choice regarding the desired sex of her baby be disapproved of if any other reason for choosing an Abortion cannot be disapproved of ?
The newspaper discussions on sex selective Abortion have assumed that it is accepted by Medical experts that such an Abortion is clearly illegal but that is not the view of the British Medical Association which in a booklet The law and ethics of abortion says (my emphasis)
1.7 Abortion on grounds of fetal sex
Fetal sex is not one of the criteria for abortion listed in the Abortion Act of 1967 and therefore termination on this ground alone has been challenged as outwith the law. There may be circumstances, however, in which termination of pregnancy on grounds of fetal sex would be lawful. It has been suggested that if two doctors, acting in good faith, formed the opinion that the pregnant woman's health or that of her existing children would be put at greater risk than if she terminated the pregnancy, the abortion would be arguably lawful under section 1(1)(a) of the Abortion Act. The Association believes that it is normally unethical to terminate a pregnancy on the grounds of fetal sex alone except in cases of severe x-linked disorders. The pregnant woman's views about the effect of the sex of the fetus on her situation and on her existing children should nevertheless be carefully considered. In some circumstances doctors may come to the conclusion that the effects are so severe as to provide ethical justification for a termination. They should be prepared to justify the decision if it were challenged.
The issue therefore is accepted as not clear from doubt. Section 1(2) of the Abortion Act may also be particularly relevant as a defence for any Doctor who was charged with conducting a sex selective Abortion (my emphasis)
(2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) or (b) of subsection (1) of this section, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.
Therefore if the woman is in an "environment" where the sex of the baby was relevant for example where there are cultural pressures to have a boy or where there is already one child of a particular sex and the couple either want their next child to be a different sex to their sibling or want it to be of the same sex then an Abortion would be legally justified.
I repeat again I am not defending the practice of Sex Selective Abortion nor am I defending these particular Doctors other than to say that they are morally no worse than most other Doctors performing or authorising Abortions.
My point is not to defend them but rather to explain why they were not prosecuted. The fact is that any prosecution of these Doctors would have been very problematic and they would probably have been acquited. The CPS, not unreasonably, took a look at the legal, ethical and political complexities involved and decided to make the feeble excuse that prosecution was not in the public interest. The CPS should have been franker and admitted that their real reason for not prosecuting was that there was "No realistic prospect of Conviction". According to the "Code for Crown Prosecutors" that is a perfectly valid reason for not prosecuting but stating the fact publicly would have made it obvious to everyone that the Abortion Act 1967 is a moral and legal mess.
UPDATE 10 SEPTEMBER 2013
My attention was drawn to an excellent legal commentary on the CPS decision by legal blogger, Greg Callus, who argues that the CPS' decision not to prosecute is defensible on the facts. He is approaching it from a slightly different angle to me but I do not disagree with what he has said. Unfortunately I do not know Gregs contact details and so I have not been able to ask whether he has any objections to me linking to him. If you want to get in contact Greg I would be delighted to hear from youI also have permission from Dr Ellie Lee from the University of Kent to add a link to her interesting article"Sex selection: what Britain’s Abortion Law Really Says" at the Spiked-Online website
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