Wednesday, July 23, 2008

Final comments on the recent Employment Tribunal case.

When Christian Registrar, Ms Ladele, two weeks ago won her employment tribunal case for discrimination and harassment, she hailed it as a victory for religious liberty, as did the conservative Christian Institute which financed her legal costs. Whether the decision is a victory for religious freedom is, of course, open to debate. Just as interesting as the question of freedom on religion in the workplace, is in my opinion he legislative basis for the decision.

While the Tribunal did refer to the right to freedom of religion in Article 9 of the European Convention on Human Rights, the case law on Article 9 does not give much support to Ms Ladele's case. Instead the tribunal's finding of discrimination and harassment was based on the Employment Equality (Religion or Belief) Regulations 2003, and the tribunal only used the jurisprudence of the European Court of Human Rights as guidance in how to balance conflicting rights.

The 2003 regulations were introduced in Britain in 2003 to ensure compliance with EU Directive 2000/78/EC. This directive obliges member states to implement legislation that prohibits discrimination in the context of employment on grounds of religion or belief, disability, age or sexual orientation.(1) Prior to the introduction of the 2003 regulations, the only available protection in English law against discrimination on the grounds of Religion was found in race discrimination legislation.(2) Legal protection in England for religion in the workplace therefore derives from EU law, a fact hardly any news media has mentioned.

Also of interest is the fact that in 2000 the Christian Institute published a pamphlet entitled 'Ditch the Directive', arguing against the implementation Directive 2000/78/EC. The pamphlet argued, inter alia, that the protection against discrimination on grounds of sexual orientation would be in conflict with protection against discrimination on grounds of religion, as well as Article 9 of the European Convention. The concerns of the Christian Institute included a suggestion that a Roman Catholic school would be acting unlawfully under the directive, if it "refused to employ non Roman Catholics, neo Nazis, atheists, communists, Seventh Day Adventists or practising homosexuals"(3)

This argumentation is, in my opinion, somewhat exaggerated, as the directive contains wide exceptions for religion.(4) It does tickle me, however, to see Adventists mentioned with neo Nazis, atheists, communists and homosexuals, in a list semingly meant to frighten British christians.

(1) Note that the Employment Equality (Sexual Orientation) Regulations 2003 and 2007 also derive from Directive 2000/78/EC

(2) Lucy Vickers, Religious Freedom, Religious Discrimination and the Workplace (Oxford, Hart Publishing, 2008) p.121.

(3) Robin Allen and Rachel Crasnow, Employment Law and Human Rights (Oxford, Oxford University Press, 2002), p.152.

(4) Article 4(1) allows discrimination where religion is a 'genuine and determining occupational requirement', and Article 4(2) allows similar exceptions for organisations that are based on a religious ethos.


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