Equalities watchdog to intervene in ECHR religious discrimination cases

The Equality and Human Rights Commission is seeking to intervene in four cases at the European Court of Human Rights involving religious discrimination in the workplace, claiming that judges have interpreted the law too narrowly.

The watchdog hopes to intervene in the following cases:

• Nadia Eweida & Shirley Chaplin against the United Kingdom (Application numbers 48420/10 and 59842/10): Ms Eweida was a BA check-in clerk who was sent home after refusing to remove a necklace with a cross; Ms Chaplin was a nurse who was removed from her Exeter hospital’s wards, also because she refused to stop wearing a crucifix
• Lillian Ladele and Gary McFarlane against the United Kingdom (Application numbers 51671/10 and 36516/10): Ms Ladele was a registrar with Islington Council who was disciplined after refusing to conduct same-sex civil partnership ceremonies; Mr McFarlane was a Relate counselor who was sacked after refusing to give relationship advice to gay couples.

The EHRC said that if given leave to intervene, it would argue that the way existing human rights and equality law has been interpreted by judges is insufficient to protect freedom of religion or belief.

According to the Commission, the courts have set the bar too high for someone to prove that they have been discriminated against because of their religion or belief.

The watchdog said it was possible to accommodate expression of religion alongside the rights of people who are not religious and the needs of businesses.

The Commission claimed that rulings already made by UK and European courts had created “a body of confusing and contradictory case law”.

“For example, some Christians wanting to display religious symbols in the workplace have lost their legal claim so are not allowed to wear a cross, while others have been allowed to after reaching a compromise with their employer,” it said.

The EHRC said it was difficult for employers or service providers to know what they should be doing to protect people from religion or belief based discrimination.

“They may be being overly cautious in some cases and so are unnecessarily restricting people’s rights,” the watchdog said. “It is also difficult for employees who have no choice but to abide by their employer's decision.”

There is a need for clearer legal principles to help the courts consider what is and what is not justifiable in religion or belief cases, which will help to resolve differences without resorting to legal action, the Commission suggested.

Its proposed way forward is the idea of ‘reasonable accommodations’ that will help employers and others manage how they allow people to manifest their religion or belief.

“For example, if a Jew asks not to have to work on a Saturday for religious reasons, his employer could accommodate this with minimum disruption simply by changing the rota,” the Commission said. “This would potentially be reasonable and would provide a good outcome for both employee and employer.”

John Wadham, Group Director (Legal) at the Commission, said: “Our intervention in these cases would encourage judges to interpret the law more broadly and more clearly to the benefit of people who are religious and those who are not.

“The idea of making reasonable adjustments to accommodate a person’s needs has served disability discrimination law well for decades. It seems reasonable that a similar concept could be adopted to allow someone to manifest their religious beliefs.”