Absolvitor: Scots Law Online

Lillian Ladele

The Equality and Human Rights Commission has announced that it intends to intervene in four cases of alleged religious discrimination involving Christians in the UK (cf. Commission proposes ‘reasonable accommodation’ for religion or belief is needed – 11 July 2011).  The cases are due to be heard by the European Court of Human Rights soon.

In a departure from what has been seen as an anti-Christian approach taken in previous cases, the Commission announced that it will seek to argue that the way existing human rights and equality law has been interpreted by judges is insufficient to protect freedom of religion or belief (as protected under Article 9 of the Convention – freedom of thought, conscience and religion).

Of the four cases, two concern employees who have been banned from wearing a Cross at work, while the other two concern employees who wished to avoid providing particular services to gay and lesbian couples (one a registrar and the other a sex counsellor).

The Commission is to put forward the idea of “reasonable accommodations” for employees’ religion or belief – analagous to the duty to make “reasonable adjustments” which is already in place for disabled employees.

While the Commission is keen to stress that it is not taking sides in the cases before the Court, their legal director, John Wadham 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 Commission’s stance has raised some eyebrows, with the Christian Legal Centre, which is representing two of the claimants, calling it a “surprising and significant shift in policy”.

Meanwhile Stonewall has pronounced itself “deeply disturbed” by the news.  Ben Summerskill, Stonewall Chief Executive warned: “..no lesbian and gay person should ever be deprived of access to [public services]” and that “we risk seeing a situation where Muslims may start refusing to treat alcoholics in hospital or social workers might decline to assist single mothers.”

This seems to miss the point a little.  The question is not whether gay and lesbian people should be denied services, but whether the employer should make “reasonable accommodation” for people’s beliefs so that a particular employee might not have to provide particular services if they run contrary to that person’s religious beliefs.

So, under the Commission’s proposals a Muslim shopworker could ask that he or she not be assigned to work in the particular department of a large store that sells alcohol.  The employer would be under a duty to make that accommodation – if it was reasonable to do so.  That would depend on a number of factors, including the size of the store, number of employees etc.

It would also mean, to my way of thinking, that employees would be allowed to wear Crosses or other religious symbols at work – if it is reasonable to allow them to do so.  This would be a change to the current position under the Equality Act 2010 where an employer can ban such symbols unless they are actively discriminating by doing so.  The change from a prohibition on discrimination to a positive duty of accommodation is a significant one.

In the case of Lillian Ladele, a registrar who was disciplined by her employers after refusing to conduct homosexual civil partnership ceremonies, what would be the position?  She was not proposing that Islington Council stop carrying out civil partnerships, simply that other registrars be allocated to do so instead of her.  Would this be a “reasonable accommodation”?  It depends on the circumstances of the case, really.  If Islington Council have a number of other registrars such that her request could have been allowed without adversely affecting the service to those seeking a civil partnership and without an undue administrative burden to the Council, then it might well have been.

Of course, this assumes that the Commission’s proposed new test is adopted by the European Court of Human Rights.  In fact they have not even decided whether the intervention by the Commission will be allowed at all.  It has, if nothing else, got people talking about the issue.  Watch this space.