How should conflicts between the LGBT community, and the faith community, be resolved under discrimination law? The Northern Ireland Court of Appeal has handed down its decision in the so-called ‘gay cake’ case, more properly known as Lee v Ashers Baking Company, deciding the question of whether religious beliefs trump the law against discrimination in the supply of goods and services on grounds of sexual orientation. Ashers Bakery, owned by Mr & Mrs McArthur, cancelled an order taken by their shop assistant to decorate a cake with a picture of Bert & Ernie and the caption ‘Support Gay Marriage’. The McArthurs are devout Christians who believe that gay marriage is sinful, and they accepted they cancelled the order because of that belief. The Northern Ireland Court of Appeal has upheld the county court’s decision. It held that the benefit from the slogan could only accrue to gay or bisexual people, and that the McArthurs would not have objected to decorating a cake saying ‘Support Heterosexual Marriage’. The ‘reason why’ they cancelled the order was that the message related to gay marriage, and there was an exact correspondence between those of the particular sexual orientation and those whom the message supported the right to marry. Accordingly this was a case of ‘associative discrimination’ with the gay and bisexual community, and amounted to direct discrimination. The Court of Appeal went on to hold that the McArthurs’ own right to free speech (ie objecting to gay marriage) was not being infringed. Nobody could reasonably conclude that by icing a cake, they were expressing personal support for the slogan – just as icing witches on a Halloween cake does not indicate they support withcraft. The McArthurs were entitled to refuse to decorate cakes involving any religious or political message, but they were not allowed to refuse to decorate cakes which carried a particular religious or political message just because it conflicted with their own views.
In Ebrahimian v France, the European Court of Human Rights has held that a hospital worker whose contract was not renewed after she refused to remove a headscarf, worn for religious reasons, while at work, did not suffer a breach of her right to religious freedom under Article 9 of the European Convention on Human Rights. The ECtHR held that the principle of secularism and the neutrality of public services justified the interference with the worker’s right to manifest her religious beliefs.
E, a Muslim woman, was engaged under a fixed-term contract as a ‘social assistant’ in the psychiatric unit of a hospital in Nanterre, France. At her interview she had worn a headscarf, which covered her hair, neck and ears but left her face unobstructed. She continued to wear the headscarf while working, which involved acting as a liaison between patients, the hospital and social services. After just over a year of work, the hospital informed E that her contract would not be renewed since she had refused to remove the headscarf, in breach of hospital rules, which had given rise to complaints from patients.
E complained about the non-renewal to a tribunal. She was unsuccessful at first instance but an appeal court held that there had been irregularity in the procedure by which E had been informed of the non-renewal. The appeal court considered that the real reason for the non-renewal was not simply the breach of a dress code that applied to all public service workers but the fact that E’s wearing of the headscarf was a visible manifestation of her religious belief. The appeal court therefore quashed the hospital’s decision. The hospital then re-took the decision and confirmed the non-renewal of E’s contract, this time making it clear that the reason was her religiously-motivated insistence on wearing the headscarf at work. E brought new proceedings to challenge this ground of non-renewal. A tribunal rejected the complaint, finding that the non-renewal of E’s employment for wearing a garment that ‘ostentatiously’ manifested her religion was justified by the principle of secularism and the neutrality of public services. E twice appealed unsuccessfully and eventually lodged a complaint in the European Court of Human Rights. She argued that the non-renewal of her contract was a breach of her right to manifest her religion under Article 9 of the European Convention on Human Rights.
The ECtHR rejected E’s complaint by a majority of six to one. It accepted that E’s Article 9 rights were engaged and that there was a prima facie infringement. However, it considered that the infringement was justified under Article 9(2). The ECtHR was satisfied that it was ‘prescribed by law’, as Article 9(2) requires, since the French Constitution enshrines the principle of secularism, and case law from the Constitutional Court and the Conseil d’Etat (the highest court in matters of public and administrative law) has consistently held that the neutrality of public services is an important part of that principle. The ECtHR accepted that no national legislation or case law specifically prohibited hospital workers from wearing an Islamic headdress. However, it relied on a judgment of the Conseil d’Etat, decided six months before the non-renewal of E’s contract, which endorsed a similar restriction in relation to teachers. In the ECtHR’s view, this judgment should have made it clear that the same standard could be expected of all public service workers.
The ECtHR went on to hold that the infringement of E’s Article 9 rights had the legitimate aim of protecting the rights and freedoms of others, having regard to the principle of secularism and public service users’ rights to receive services free from discrimination. It also accepted that the application of the rule to E was ‘necessary in a democratic society’. While there was no suggestion that E had been proselytising or putting patients under pressure, it could reasonably be considered necessary to prevent a public hospital worker from manifesting her religious beliefs in the exercise of her functions, in the interests of ensuring the equal treatment of patients. As for whether this was a proportionate means of preserving secularism and neutrality, the ECtHR accepted that E had suffered serious consequences for manifesting her religious convictions. However, it was satisfied that, following the Conseil d’Etat’s decision in the teachers’ case, E knew that she was expected to conform to a neutral dress code while at work and that she had been asked to reconsider her decision. In these circumstances, the non-renewal of her contract for failure to comply was proportionate.
No, held the EAT in Metroline Travel v Stoute.
The Claimant argued that he was a disabled person because he had Type 2 diabetes and followed a diet which was designed to reduce blood sugar levels. The employment tribunal accepted a submission that this automatically made him a disabled person under the Equality Act, and it failed to consider the specific circumstances of the case. The EAT found that this was an error of law. More controversially, the EAT ruled that a diabetic diet does not qualify as measures taken to treat or correct the condition.
This was an academic appeal as the Claimant had already lost his substantive case on liability but the EAT allowed it to be heard because the Respondent had other employees with Type 2 diabetes who would be affected by the decision. The Claimant was ordered to repay the Respondent’s fees in full.
In Land Registry v Houghton and ors, the EAT has upheld a tribunal’s decision that a bonus scheme that excluded those who had received a formal warning in respect of sickness absence during the relevant financial year occasioned discrimination arising from disability under S.15 of the Equality Act 2010. The rule clearly gave rise to unfavourable treatment in consequence of disability, given that the exclusion was automatic even for disability-related absences, and it could not be objectively justified because, among other things, managers had no discretion under the scheme.
In Shuter v Ford Motor Co Ltd ET Case No.3203504/13 an employment tribunal has held that an employer did not discriminate by paying only the statutory rate of additional paternity pay to a male employee on additional paternity leave (APL) when a female employee on maternity leave would have been entitled to full basic pay. There was no direct discrimination because the appropriate comparator was a woman who had also taken APL, who would have been treated in the same way. Although the policy was indirectly discriminatory, it was objectively justified by the need to recruit and retain women in a male-dominated workforce.
Recruitment manager Jennifer Newman has won nearly £30,000 in damages after being subjected to a campaign of sexual harassment and then being sacked from her position at Hydro Cleansing.
The Daily Telegraph, Page: 3 Evening Standard, Page: 3 Daily Express, Page: 9
In Hounga v Allen and anor the Supreme Court has held that a domestic worker could claim race discrimination, despite working illegally in the United Kingdom. The connection between the illegality and the statutory tort of discriminatory treatment was insufficiently close to bar her claim. Furthermore, in the view of the majority of the Court, public policy against human trafficking outweighed any public policy consideration in support of applying the defence of illegality in this case. An illegal immigrant is still barred from bringin a claim for unfair dismissal though.
The Equalities and Human Rights Commission (EHRC) has ruled that the use of all-female shortlists to get more women in the boardroom is unlawful under equality law. The EHRC’s guidance said: “It constitutes unlawful sex discrimination to select a person for a role because of their gender. The law does not permit positive discrimination when making an appointment or a promotion. However, the law provides scope for companies to address any disadvantage or disproportionately low participation on boards by enabling or encouraging applications from a particular gender, provided selection is made on merit.” The rejection of women-only lists was supported by the Institute of Directors. Oliver Parry, the IoD’s corporate governance adviser, said: “We hope that the guidance issued today will help boards to appoint more women through measures including aspirational targets, wider advertising for posts and mentoring and shadowing programmes.”
In Kaltoft v Municipality of Billund (C-354/13) the Advocate General has given the opinion that obesity may amount to a disability for the purposes of the EU Equal Treatment Framework Directive (No.2000/78) but only if it is ‘severe’. The Advocate General thought it probable that only obesity with a body mass index (BMI) of over 40 would hinder an individual’s participation in professional life to such an extent as to amount to a disability. He also rejected the argument that there is a freestanding prohibition in EU law on discrimination on the ground of obesity per se.
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Mediation at Midlands East today - masterclass in how to conduct a productive Judicial Mediation by EJ Britton. #ukemplaw
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