Saturday, November 01 2014

Landmark case on religious discrimination in workplace taken to ECHR


There has been media coverage on BBC News, the Guardian, the Independent, the Daily Mail and the Daily Telegraph of a landmark case regarding religious discrimination against four Christians which is being heard at the European Court of Human Rights (ECHR). All four claim that they were discriminated against in the workplace because of their religious beliefs or the manifestation of their religious beliefs. The outcome of the case could set a precedent for future cases regarding religious discrimination in the workplace.

From the BBC:

“Four British Christians who claim they lost their jobs as a result of discrimination against their beliefs are taking their cases to the European Court of Human Rights.

“All four lost separate employment tribunals relating to their beliefs.


“Secular critics have said a ruling in favour of the group could "seriously undermine" UK equality law.


“Each individual had made a separate application to the court, but the cases are being heard together.”


The lawyer for Nadia Eweida, who was sent home by her employers for refusing to remove her cross said that, "She was working alongside colleagues who were able to wear religious symbols and attire including the Sikh turban, the Sikh bracelet, the Muslim hijab, and the Jewish skull cap.

"It was indisputable that wearing the cross visibly did not have any detrimental effect on Miss Eweida's ability to do her job."


However, as the Daily Telegraph states, a lawyer representing the Government, James Eadie QC has commented on the cases of employees being told to remove visible crucifixes at work that this “did not prevent either of them practicing religion in private”, which is protected by human rights law.

The BBC continues with Eadie’s comments that, "the court's jurisprudence is clear and consistent, it is to this effect the convention protects individuals' rights to manifest their religion outside their professional sphere.

"However, that does not mean that in the context of his or her employment an individual can insist on being able to manifest their beliefs in any way they choose. Other rights, other interests are in play and are to be respected."


In two of the cases where women were removed from their normal duties for refusing to remove a cross, it is argued that Articles 9 and 14 of the European Convention of Human Rights have been contravened. Article 9 states that “Everyone has the right to freedom of thought, conscience and religion…in public or private, and to manifest his religion or belief, in worship, teaching, practice and observance.” This is however subject to limitations “as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

Article 14 prohibits discrimination on the basis of religion.

BBC News states that “Earlier this year, the UK's equality watchdog, the Equality and Human Rights Commission, said the UK tribunals had come to the correct conclusion in the cases of Miss Ladele and Mr McFarlane.

“But it conceded that the courts "may not have given sufficient weight" to Article 9.”


A campaigner from Christian Concern told the BBC that in all four cases the beliefs and practices of the individuals could have been “reasonably accommodated and their Christian faith respected, without detriment or damage to the rights of others”.

The case for ‘reasonable accommodation’ has been put forward by the Equality and Human Rights Commission (EHRC), who with respect to cases of Christians claiming discrimination in the workplace, last year proposed “‘reasonable accommodations’ that will help employers and others manage how they allow people to manifest their religion or belief.” The organisation also criticised the lack of clarity as the law on religion in the workplace currently stands.

In a report published last month, the EHRC explored some of the competing interests in relation to religious belief. It argued that there is no specific guidance in European law, but that domestic courts are expected to strike a balance, taking into account principles such as non-discrimination; neutrality; fostering pluralism and tolerance; proportionality and the use of the least restrictive alternative. It found that that there were several cases - particularly with respect to sexual orientation which illustrated the ‘trumping’ of religious freedom in favour of sexual freedom.  In light of this, it is difficult to say what the outcomes of the cases at the European court might be, and whether it will favour a civil liberty that in these cases undermines the claimants’ right to religious freedom.

The issue of competing rights could also be seen in relation to a number of other issues such as for example bigotry vs. freedom of speech, or security vs. civil liberties.

There have been several recent cases of discrimination against Muslims in the workplace; last month it was reported that a Muslim woman was forced to resign from her job at a high street retailer after she wore a headscarf to work; in June this year, Camden Council backed down from plans to deduct five minutes pay every time Muslims took a prayer break; and in March a Muslim man received an apology from Vodafone after he was fired on the first day of his job because he had a beard. Significantly, an investigation by BBC Radio Five Live in 2004 also found that Muslims are subject to racism at the point of applying for jobs due to Muslim-sounding names, and that this racism transcended virtually every sector of the job market in Britain.









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