UK Religion and Belief Case Studies - Equinet

A question of faith: Religious
discrimination and article 9 ECHR
Peter Reading
Director of Legal Policy
Equality and Human Rights Commission
Outline of presentation
1. A Question of faith: Equinet report on religious
discrimination in Europe
2. UK cases of religious discrimination and article 9
claims in employment
3. UK cases of religious discrimination and article 9
claims: conflicts with sexual orientation
4. The future
1. Equinet report: A question of faith
Why focus on religious discrimination?
Raises issues of religious identity versus
- secularity and neutrality of the State and private
- Conflicts with the fundamental rights of others
identified by sexual orientation, gender, children,
- Issues of counter-terrorism and national security
Raises issues of relationship between religious
discrimination and article 9 and 14 ECHR
1. Equinet report: A question of faith
Report examines:
- The Legal framework: EU Equality Directives, national
laws, and article 9 of the ECHR;
- Religious discrimination and article 9 cases in the
sectors of employment, education, the provision of
goods and services and banning full veil in public
- Religious discrimination and article 9 cases where
there is a conflict with fundamental rights: sexual
orientation, gender, children;
- Conclusions that can be drawn for change: eg GOR
exception, Proposed Directive
Framework Directive 2000/78/EC
Prohibits both direct and indirect and religious
discrimination in employment
Proposed Directive to extend protection to
provision of goods and services, education,
housing but stalled
However many Member States have broader
national laws
Article 9: Freedom of religion
1. Everyone has the right to freedom of
thought, conscience and religion; this
right includes freedom, either alone or in
community with others and in public or
private, to manifest his religion or belief,
in worship, teaching, practice and
Article 9: Freedom of religion
2. Freedom to manifest one’s religion or beliefs shall
be subject only to
- such 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.
2. Religious discrimination and article 9
claims in employment
Working Fridays
Ahmad v UK (1981) 4 EHRR 128
• Mr Ahmad complained that he was forced to
resign as a teacher because he was refused
permission to attend a mosque on Fridays to
worship during work hours.
• European Commission of Human Rights
concluded that there had been no interference
with his Art 9 rights as freedom of religion is not
absolute: the person’s particular circumstances
had to be taken into account.
Working Sundays
Stedman v UK (1997) 23 EHHR CD 168
• Mrs Stedman was a Christian who complained
that a requirement to work on Sundays interfered
with her Art 9 rights
• European Commission of Human Rights found
that a refusal to work certain hours for religious
reasons did not give rise to protection under Art
• Mrs Stedman was not pressurised to change her
religious views or prevented from manifesting
her religion and was free to resign: no
interference and her claim was ill founded.
Eweida v British Airways [2010] EWCA
CV 80, Court of Appeal
see also Chaplin v Devon and Exeter Hospital [2010] ET
Case Number: 17288862009
• Ms Eweida worked as a stewardess at British
• was refused permission to wear a necklace with a
cross over her uniform as this was in breach of her
employer’s uniform policy
• Other religious groups such as Muslims and Sikhs
were permitted to wear headscarfs and turbans;
• Eweida refused to do administrative work which
would have not required a uniform
• BA eventually changed its policy to permit wearing
of cross but would not refund salary while Eweida
was suspended.
Eweida v British Airways [2010] EWCA
CV 80, Court of Appeal
• Claim of indirect religious discrimination and article
9 breach
• No indirect discrimination as:
- was a personal choice to wear the cross not a
requirement of the faith
- she was unable to establish that the requirement
to conceal her cross put Christians generally at a
particular disadvantage;
- the policy was proportionate: never raised issue
for seven years and refused alternative role
Eweida v British Airways [2010] EWCA
CV 80, Court of Appeal
Article 9 claim rejected:
- Article 9 does not protect every act motivated by
- No interference with article 9 where person
voluntarily undertakes employment role and they
can continue to manifest their religion outside
Eweida v UK, Chaplin v UK, ECtHR
Claimed breaches of articles 9 and 14.
British domestic religious discrimination law must be
interpreted compatibly with the Human Rights Act
and the ECHR (article 9 and 14)
EHRC arguments that interpretation by British
domestic courts of religious discrimination law not
compliant with article 9
Eweida v UK, Chaplin v UK, ECtHR
EHRC arguments:
• Do not necessarily need to establish manifestation
is required by religion (eg Jakobski v Poland
(2010) 30 BHRC 417, R (Bashir) v Independent
Adjudicator [2011] EWHC 1108
• Choice: too high threshold for establishing article 9
interference, insufficient consideration of
• Establishing group rather than individual
disadvantage may not always be appropriate for
religion re article 14
NB R(Bashir) v The Independent
Adjudicator [2011] EWHC 1108
• Prison had a policy of conducting
random drug tests. Claimant was a
devout Muslim and was fasting for three
days and could not provide a urine
• Prison policy made adjustments during
Ramadan festival but not for voluntary
NB R(Bashir) v The Independent
Adjudicator [2011] EWHC 1108
• Bashir was disciplined for failing to give
urine sample to drug test with an
increased sentence.
• Claimed a breach of article 9.
• Government argued either there was no
interference with article 9 or if so was
NB R(Bashir) v The Independent
Adjudicator [2011] EWHC 1108
• Failure to properly consider and apply article
9 : no need to establish that manifestation
• Failure to consider “making adjustments”
• Quashed decision to increase sentence
3. Religious discrimination and article
9 claims: conflicts with sexual
Ladele v Islington Borough Council
[2009] EWCA CV 1357, Court of Appeal
Ms Ladele, a Registrar of Marriages in Islington
Claimed she was discriminated against for refusing
on religious grounds to carry out civil partnership
Dignity at work policy included non discrimination in
provision of services of Council
Some other councils made adjustments to allow
registrars not to perform civil partnerships
Ladele v Islington Borough Council
Discrimination claim
[2009] EWCA CV 1357, Court of Appeal
Indirect discrimination was objectively justified for the
following reasons:
– would undermine the Council's commitment to
their non discrimination objectives.
– Ms Ladele was employed in a public job working
for a public authority and she was required to
perform a secular task.
– Her refusal to perform that task amounted to
discrimination against lesbian and gay service
Ladele – Article 9 claim
Court applied the following principles:
• ‘Article 9 does not require that one should be
allowed to manifest one’s religion at any time and
place of one’s own choosing.’
• The right to manifest a religion can be appropriately
limited to protect the fundamental rights of others, in
this case gay and lesbian services users of the
• Relevant that Sexual Orientation Regulations 2007
prohibiting discrimination in provision of goods and
services had been introduced
McFarlane v Relate Avon Ltd
2010/EWCA/Civ B1 (EAT)
• Employer provided relationship counselling
• Employer had a policy to provide services to
all persons without discrimination.
• McFarlane sought to be exempted from
providing counselling to same sex couples
on religious grounds
McFarlane Relate Avon
2010/EWCA/Civ B1
• Claims of direct and indirect religious
• Both claims dismissed by EAT citing
• Policy of preventing discrimination was a
proportionate means of achieving a
legitimate aim therefore indirect
discrimination was justified
Ladele v UK and McFarlane v UK,
Claims of article 9 and 14 breaches. EHRC
• Correct principles applied in cases
• Limiting manifestation of religions will
usually be justified where the policy or
practice seeks to protect others from
• Particularly important where a public role
such as in Ladele
4. The future
• Eweida, Chaplin, Ladele and McFarlane: important to
examine relationship between EU religious
discrimination law and article 9 (EU accession to
• Need for Proposed Directive to be introduced to
harmonise and improve protection
• Guidance by European Commission on dealing with
religious discrimination cases?
• Reasonable accommodation provision for religion?
The Canadian model