I’m not going to try to go through all of the media reporting surrounding the religious discrimination cases currently being heard by the European Court of Human Rights and correct the errors and misconceptions that abound. What would be the point? Nor am I going to predict what the outcome of the decision will be because I have no idea – let’s just wait and see.
Because there are four separate cases at issue here, and because we are talking about human rights law, this issue is more complicated than most. This isn’t one of those posts where I argue that actually this is all very simple – it just isn’t. There are some fine distinctions be be drawn and some complicated points to argue.
Could someone perhaps tell the Daily Mail that?
In fact can I just say the following to the press generally? THESE CASES ARE NOT ABOUT BANNING CROSSES!
If an employer specifically banned the wearing of a cross – as opposed to other forms of jewellery then that would be direct discrimination and unlawful. There may be some exceptions to that (the dress code for a Rabbi for example) but to all intents and purposes, a ban just isn’t allowed. At some stage somebody will explain that to David Cameron and he will realise that a specific law on the point just isn’t needed.
In Chaplin and Eweida the issue was not that the employer banned crosses. The ban was on any necklace worn in a way that was visible (in Eweida’s case) or which could be grabbed by a patient (in Chaplin’s case). In each case, as far as the employer was concerned, it didn’t matter what was at the end of the necklace.
The Claimants are arguing that it should have mattered; that they should have been given special treatment because what was at the end of the necklace had a special importance to them.
I’ve said before that I think that Eweida should have won her case under UK law. I think the UK courts took too limited a view of indirect discrimination and should have held that even if she was the only person who was potentially disadvantaged by the BA dress code, that was enough to put BA under an obligation to justify the policy – which they clearly couldn’t do.
As for Chaplin, part of her case seems to be a general scepticism that the chain around her neck genuinely posed any health and safety risk. I’m no expert, but I think hospitals are entitled to be a bit fussy about heath and safety and I would be reluctant to overrule their judgement on the issue. Its worth noting that the majority of the Tribunal held that in any event the employer had done enough to try to accommodate Chaplin’s requirement by offering to allow her to wear the cross as a brooch or attached to her name badge. She refused because she argued that the necklace was an integral part of the item.
One of the things that frustrates me about this debate, however, is that people seem to pick sides – do you support Eweida and Chaplin or not? – and then argue that their side should win in the European Court of Human Rights.
There’s something odd going on here, because usually I would have thought that the Daily Mail would have been one of the first to complain if someone who had lost a discrimination case against a private employer should try get the European Court of Human Rights to rule that our domestic equality law breached the European Convention on Human Rights and had to be changed and made even more restrictive. That isn’t usually the sort of thing they are in favour of. Fip Chart Fairy Tales has covered this issue in some depth and is well worth reading.
Human Rights law is different from normal discrimination law. It has different principles and a different case law history. The Mail seems incensed that the UK Government is arguing that people could choose to resign if their religious beliefs conflicted with the needs of their job. But if we are dealing with human rights law then surely that is a relevant consideration? To what extent should human rights law restrict contracts of employment freely entered into? Normally it is papers like the Mail who are arguing that the human rights agenda has gone too far. Its a little odd to see them so sympathetic to cases that rely on overturning previous case law and extending the reach of human rights law in the workplace.
In legal terms, Eweida’s case is not so different from the case of Azmi v Kirklees which involved a Muslim teaching assistant wearing a veil whenever a male teacher was present. She lost her case on the issue of justification. There was less public clamour about that case which did not go to the European Court of Human Rights. At the time, the Daily Mail said this:
But there has to be give and take on both sides. And the bounds of common sense are stretched to breaking point when a Muslim teacher insists on the full veil, which inevitably makes it more difficult to communicate with her pupils.
Aishah Azmi?s insistence on her ‘rights’, even in inappropriate circumstances only serves to exacerbate community tensions
The sentiment behind this is not so very different from what James Eadie QC (for the Government) is quoted by the Mail as saying in Strasbourg:
‘Everyone has the right to express their beliefs, including the right to display religious symbols, but not an absolute right or a right without limits. That does not mean that in their professional sphere anyone can manifest their religious belief in any way they choose.’
I think its a bit difficult to disagree with that. If this case were concerned with a different religion, I think lots of people now supporting Eweida and Chaplin would think so too.
So even if you are sympathetic to Eweida and Chaplin, that should not mean that you want the ECHR to rule in their favour. The Daily Mail and those who have cheered the cases on from the sidelines should be careful what they wish for. If they win, then that will mean that it will be harder for employers to assert the needs of their business when there is a conflict with the religious needs of the employee. Very few of the cases which follow will be about cross wearing, because most employers simply don’t care about small necklaces. The cases will be about working time (sabbath observance, religious holidays), headscarves and veils, retail workers handling meat products or alcohol, or employees with a philosophical objection to a particular part of their job.
Then there are the other two cases – Ladele and McFarlane. Well, that’s a whole other can of worms. I’ll save that for the next post.