1

SEXUAL IDENTITY AND RELIGION: RESOLVING CONFLICTS OF

RIGHTS IN THE RELIGIOUS AND NON-RELIGIOUS WORKPLACE

Damian Carney & Roger Welch, University of Portsmouth

1. INTRODUCTION

Anti-discrimination in the UK is largely based on a ‘one size fits all’ approach. This was not

that problematic in the 1970s in the contexts of gender and race – particularly given the

existence of separate commissions in the form of the Equal Opportunities Commission and

the Commission for Racial Equality. However, the extension of statutory protection, in 2003,

to sexual orientation and religion or belief has generated problems that the Equality Act 2010

(EqA), based as it is on the provisions of the former Sex Discrimination Act 1975 and Race

Relations Act 1976, is ill-equipped to resolve.

For example, should a customer’s, or a colleague’s, objections to a particular or any religion

override an employee’s desire to manifest his or her religious belief through displaying

religious symbols or wearing religious dress? In what can be regarded as a current climate of

Islamophobia, there is a particular cause of concern relating to restrictions on Muslim women

which prevent them from wearing the hijab or other forms of Islamic dress. Should what we

will argue should be perceived as rights to manifest Islamic beliefs simply be dismissed on

the basis that a substantial number of people who (rightly) champion feminism regard such

dress as oppressing women within Islamic communities? Similarly, given the stance adopted

by many adherents to the religions of the book, that is, Christianity, Islam and Judaism, to

homosexuality, there is a clear potential for conflict between lesbian, gay, bisexual or

transgendered (LGBT) persons and such adherents.

British courts and tribunals have had to address these problems in a number of cases. On the

basis of the relevant decisions we have previously argued1 that, given that provisions in the

EqA concerning religion or belief and sexual identity overlap with Articles 8 and 9 of the

European Convention on Human Rights (ECHR), the law would be clearer and more

consistent if the EqA was amended to give direct effect to the Convention Articles in the

context of the workplace. This would mean that an employer’s ability to justify restricting

rights as lawful would no longer be based on the Bilka-Kaufhaus 2 formulation, but would be

in line with the jurisprudence of the European Court of Human Rights (EctHR) in

determining when protected rights can be subjected to interference or restriction. So

amending the EqA would also avoid the need to draw dubious distinctions between direct and

indirect discrimination as arguably occurred in the Azmi3, and would pre-empt the adoption of

an over technical approach to identifying the presence of discrimination as arguably occurred

in Eweida 4. Part of this paper will evaluate this contention in light of the judgment of the

EctHR in the four cases of Eweida, Chaplin, Ladele and McFarlane.5

1 D. Carney & R. Welch, ‘Protecting Religious and Sexual Identities: Discrimination Law or Human Rights

Law?’ (2011) 11(2) Contemporary Issues in Law, 94. 2 Bilka-Kaufhaus Gmbh v Weber von Hartz [1987] ICR 110.

3 Azmi v Kirklees MBC [2007] ICR 1154.

4 Eweida v British Airways [2010) ICR 890.

5 Eweida and others v The United Kingdom Applications nos. 48420/10, 59842/10, 51671/10 and 36516/10, 15

January 2013. It should be noted that the Grand Chamber of the EctHR has refused Chaplin, Ladele and

McFarlane leave to appeal, and therefore the litigation is now closed – see IDS Employment Law Brief 974 June

2013 at p. 2.

2

The essential problem is that different forms of discrimination do not share identical roots.

Sexism and homophobia are derived from socio-economic systems which give rise to

patriarchy; whilst racism and religious prejudice are more rooted in the legacy of a European

imperialism which can be dated back to at least the time of the crusades.6 However, if we

recognise the different causes for different types of discrimination we can locate a hierarchy

of oppressions, and this can determine which rights should take priority in which contexts.

Generally, we will argue that priority should be given to rights designed to protect employees

from discrimination by employers on grounds of their sexual identity. However, Schedule 9

of the EqA does give special exemption to organised religions. Arguably, the religious

workplace is a special case given the needs of religious celebrants such as priests, imams and

rabbis to promote the teachings of their religions and relate to the beliefs of their

congregations. An alternative argument is that the law should no more permit organised

religious employers to have special exemption from laws combating homophobia than they

do from laws combating racism. As the authors have different perspectives on this issue,

these alternative discourses will be developed and readers will be invited to draw their own

conclusions.

The paper will begin by outlining how discrimination law operates and discussing how it was

applied by the British tribunals and courts in Eweida et al.

2. THE EQUALITY ACT AND DISCRIMINATION LAW

Based on the provisions of the Sex Discrimination Act 1975, the Race Relations Act 1976

and the Sexual Orientation (SO) and Religion or Belief (ROB) Regulations 2003, the EqA

distinguishes between direct and indirect discrimination and permits justification only in

respect of the latter.7 Under the EqA it is unlawful for employers to discriminate against

employees with protected characteristics as set out in section 4. This includes employees who

hold a particular religion or belief, or who have a particular sexual orientation or are

transgendered.

Under EqA, section 13, discrimination is direct if an employer treats an employee with one

protected characteristic less favourably than he treats or would treat other employees. Under

section 19, discrimination is indirect if an employer (A) applies to an employee (B) a

provision, criterion or practice which is discriminatory in relation to a relevant protected

6 For an analysis of the relationship between race, ethnicity and religious beliefs see Gwyneth Pitt, “Religion or

Belief: Aiming at the Right Target?” in Helen Meenan, Equality Law in an Enlarged EU (Cambridge:

Cambridge University Press, 2007), at pp. 202-230; Aisha Ahmad, “British Muslim Female Experiences in

Football: Islam, Identity and the Hijab”, in Daniel Burdsey (ed), Race, Ethnicity and Football (Abingdon:

Routledge, 2011), at pp. 101-114. Also see Iyiola Solanke, ‘Infusing the Silos in the Equality Act 2010:

Opportunities Seized, Lost and Generated’ (2011) 40 ILJ 336, for an argument that discrimination law would be

strengthened by recognising the intersectionality between the separate protected characteristics covered by the

EqA and replacing the current single dimension approach by exploring the scope for synergy across the different

grounds of discrimination. 7 The concepts of direct and indirect discrimination were introduced by the Sex Discrimination Act 1975 and

Race Relations Act 1976. They were adopted by the Employment Equality (Sexual Orientation) Regulations

2003 (SI 2003/1661) and Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660) which

came into effect in December 2003. These Regulations were designed to transpose the Framework Employment

Equality Directive, Directive 2000/78/EC, into UK law.

3

characteristic of that employee. A provision, criterion or practice (PCP) is discriminatory in

relation to a relevant protected characteristic of B's if:

(a) A applies, or would apply, it to persons with whom B does not share the

characteristic;

(b) it puts, or would put, persons with whom B shares the characteristic at a particular

disadvantage when compared with persons with whom B does not share it;

(c) it puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.

Therefore, an employer will have committed direct discrimination if he permits Christian

employees to wear religious symbols such as crucifixes, but prohibits employees of other

religions from wearing religious symbols and dress. However, there will be no such

discrimination if an employer imposes a blanket ban on the wearing of any form of religious

dress in the workplace. An employer will be committing indirect discrimination if he imposes

a blanket ban on a particular type of religious dress which, whilst it applies to all employees,

disproportionately impacts on employees of a particular religion. The key difference between

direct and indirect discrimination is that only the latter is capable of being justified by the

employer.

The test for justification is derived from the leading ruling of the European Court of Justice

(ECJ) in Bilka-Kaufhaus.8 This is a business orientated test which requires objective

justification by reference to organisational or commercial objectives, and imposes a

requirement of proportionality. Thus the discrimination must be no greater than necessary to

secure the organisation’s objectives, and must not be outweighed by the discrimination

suffered by the individual. Moreover, there must not be an appropriate alternative mechanism

for securing the organisation’s objectives which does not involve discrimination. Whilst

direct discrimination cannot be justified, it is lawful where the genuine occupational

requirement defence can be pleaded successfully (see below for a discussion of this defence

in the context of religious celebrants). This defence is also subject to the requirement of

proportionality.

Two other forms of unlawful discrimination – age discrimination and disability

discrimination – are subject to their own rules. Age discrimination can be justified

irrespective of whether the discrimination is direct or indirect. Disability discrimination law

is based not so much on the form the discrimination takes but whether it is related to a

disability. Such discrimination can only be justified where it is reasonable for an employer to

conclude that no adjustment can be made which would enable the disabled employee to

perform a particular job despite the disability.

Our argument is that discrimination on grounds of sexual orientation and religion or belief

should also be subject to their own rules. The rationale for this is that both forms of

discrimination overlap with rights guaranteed by the ECHR, and, indeed, the decision by the

8 Bilka-Kaufhaus Gmbh v Weber von Hartz [1987] ICR 110. In Hampson v Department of Education and

Science [1989] ICR 179, Balcombe LJ argued that the objective test for justification had to be applied by British

courts and this view was expressly approved by the Law Lords in Webb v EMO Air Cargo (UK) Ltd [1993] ICR

175.

4

EU to extend discrimination law to cover sexual orientation was driven by case law from the

EctHR – particularly the decision in Lustig-Prean.9

It should be noted that there are alternatives to our proposal. Bowers, Moran and Honeyball

have argued that sex discrimination should be capable of justification irrespective of whether

discrimination is in a direct or indirect form.10

Clearly, this approach could also be taken with

respect to religion or belief and sexual orientation. However, in seeking to counter these

arguments, Gill and Monaghan11

warned that permitting the justification of direct

discrimination would open the floodgates of discrimination, and we agree with this

perspective. Justification of direct age discrimination is appropriate, as age can impact on a

person’s ability to do a particular job safely and efficiently in ways that a person’s gender,

race, sexual orientation or beliefs generally do not. Moreover, the Supreme Court has recently

clarified that whilst indirect age discrimination can be justified solely by reference to an

employer’s commercial objectives, justification of direct age discrimination requires the

employer’s objectives to be underpinned by social policy aims.12

For example, a decision by

an employer to adopt a compulsory retirement age could be justified by reference to the

promotion of inter-generational fairness and/or the preservation of the dignity of older

workers. In our view, age is the only characteristic protected by the EqA where justification

of direct discrimination should be permitted.

McColgan13

has questioned the very validity of extending discrimination law to include

religious and other philosophical beliefs. She argues that EU law had to be amended to give

effect to the EctHR decision in Lustig-Prean, but there was no similar requirement with

respect to religion or belief. This argument is correct, but as will be expounded below, we do

think it appropriate for the law to protect rights to hold and manifest religious beliefs at the

workplace.14

Moreover, in the current climate of Islamophobia, religious discrimination can

easily provide a cloak for racial discrimination, and it is important that the law is equipped to

recognise and deal this problem. This is even more the case given the coalition government’s

decision not to implement the provisions of the EqA which would have enabled claims of

combined discrimination to have been brought. In our view, it is problematic whether any

definition of race or ethnicity will in all circumstances effectively cover discrimination which

occurs ostensibly on religious grounds, where the religion concerned transcends national,

racial and ethnic boundaries.

The essential problem is that the Human Rights Act (HRA) does not directly implement the

ECHR in the context of the employment relationship, as this is seen as a private relationship

9 Lustig-Prean and Beckett v the United Kingdom [1999] IRLR 734.

10 J. Bowers & E. Moran, ‘Justification in Direct Sex Discrimination Law: Breaking the Taboo’ (2002) 31ILJ,

307; J. Bowers, E. Moran & S. Honeyball, ‘Justification in Direct Sex Discrimination: A Reply’ (2003) 32 ILJ

185. 11

T. Gil & K. Monaghan, ‘Justification in Direct Sex Discrimination Law: Taboo Upheld’ (2003) 32 ILJ 115. 12

See Seldon v Clarkson Wright [2012] UKSC 16 in which the Supreme Court applied the ruling of the ECJ in

Fuchs v Land Hessen (C-159/10) [2012] ICR 93. 13

Aileen McColgan, ‘Class Wars? Religion and (In)equality in the Workplace’ (2009) 38 ILJ 1. McColgan does

identify the overlap between racism and religious discrimination and the way this can lead to the vilification of

Muslims, Catholics and Roma, but argues the law should focus on the racialised aspects of religious

disadvantage rather than extending discrimination to religion or belief more generally. For further discussion of

this issue, see Gwyneth Pitt, ‘Keeping the Faith: Trends and Tensions in Religion or Belief Discrimination’

(2011) 40 ILJ 384. Pitt has also argued that an expanded notion of ethnicity could protect, for example, Hindus

and Muslims from discrimination at work, see above n. 6. 14

For a comprehensive and seminal analysis as to why law should protect rights to religious beliefs,

see Lucy Vickers, Religious Freedom, Religious Discrimination and the Workplace (Oxford: Hart, 2008).

5

even in public sector organisations which are not deemed core public authorities (in contrast

to EU law). Whilst HRA, section 3(1), does require the EqA, where possible, to be

interpreted in a way that is consistent with the jurisprudence of the EctHR, this is not as

effective in protecting human rights as is the case where a claimant in a British tribunal or

court can directly rely on the Convention itself.

Indeed, the British courts have refused to interpret 'sex' as defined by the Sex

Discrimination Act, to cover sexual orientation on the basis this constitutes a distortion of

the English language. This approach was taken in Smith v Gardner Merchant Ltd,15

and was

upheld by the House of Lords (HL) in Macdonald.16

In these cases it was held that there is

no direct sex discrimination where employers treat gay and lesbian employees in the same

way. An identical position was adopted by the European Court of Justice (ECJ)17

in Grant v

South-West Trains Ltd,18

where it ruled the Equal Treatment Directive prohibiting sex

discrimination did not cover discrimination by an employer on grounds of an employee’s

sexual orientation.19

3. THE PROBLEM WITH DISCRIMINATION LAW

There are two problems brought about by the ‘one size fits all’ approach to discrimination in

the contexts of sex, race, religion and sexual orientation. Firstly, discrimination must be

designated indirect for justification to be possible, and tribunals and courts may feel

compelled to designate a particular instance of discrimination to be indirect even though it

could more accurately be regarded as direct. Secondly, justification will then be decided on

the basis of the business approach propounded by Bilka-Kaufhaus when, in our view, it is

more appropriate to decide whether discrimination is lawful by reference to the grounds

expressly stipulated in the ECHR. If cases were decided on the basis of the latter, then it

would cease to be a material issue as to whether discrimination was direct or indirect, and

justification would not be permitted where this was solely on a commercial basis without

reference to public policy, public health, public safety and the like.20

Where there is conflict

of rights - particularly in the context of religious beliefs and sexual orientation/identity - then

again the decision should be based on the approach that the EctHR adopts in resolving such

conflicts.

In proposing to prevent employers justifying indirect discrimination by reference to the Bilka

Kaufhaus test it might be argued that this would mean that British law would no longer be in

accordance with EU law and the consequent amendments to the EqA could be challenged on 15

[1998] IRLR 510. 16

Macdonald v Ministry of Defence; Pearce v Governing Body of Mayfield Secondary School [2003] ICR 937. 17

Now the Court of Justice of the European Union (CJEU) – however this paper will continue to refer to the

ECJ where that was the name of the court at the time of the relevant decision. 18

[1998] ICR 449. 19

These cases were decided before the HRA came into effect, but it is more than possible that the cases would

have been decided in the same way even if the courts had been required to take HRA, s 3(1), into account. In P v

S and Cornwall County Council [1996] ICR 795 the ECJ did hold that EU discrimination law covers

transgendered persons – however, given the close relationship between sexual orientation and sexual identity, it

is our view that our proposed amendments to the EqA to reflect Articles 8 & 9 ECHR should apply to

transgendered as well as gay and lesbian employees and workers - see above n. 1 above, at pp 113-114. 20

It should be noted that Article 8(2) does include economic grounds, but only in the context of the economic

well-being of the country and this does not extend to the perceived commercial needs of any particular

employing organisation.

6

that basis. However, as is the norm with EU social law, Article 8 of the Framework

Employment Equality Directive makes it explicitly clear that Member States can provide

more favourable protections than the Directive requires. Moreover, Article 2(5) expressly

permits a human rights based approach by providing that: ‘This Directive shall be without

prejudice to measures laid down by national law which, in a democratic society, are

necessary for public security, for the maintenance of public order and the prevention of

criminal offences, for the protection of health and for the protection of the rights and

freedoms of others.’ Therefore, there can be no argument that amending the EqA to replace

the Bilka-Kaufhaus approach to justification with a Convention based approach could

generate a conflict between British and EU law.

The issue in Eweida21

was whether she had been subject to unlawful discrimination as a

result of a blanket ban on employees displaying jewellery including religious icons – in her

case a crucifix. She lost her claim of direct discrimination as all employees of all religions

were subject to this rule. Moreover, the Court of Appeal upheld the view of both the

employment tribunal and the Employment Appeal Tribunal (EAT) that she was not the victim

of indirect discrimination as she was not a member of an identifiable group who were

disproportionately discriminated against. For Christians wearing or displaying a crucifix is

simply an issue of individual choice. The EAT took the view that had there been indirect

discrimination it could not have been justified as the policy of the company of having a single

uniform would have been outweighed by the discrimination suffered, and thus the policy

would have failed on the issue of proportionality. The Court of Appeal took the view that had

there been indirect discrimination then it would have been justified.

Similarly, in Azmi,22

the EAT agreed with the ET that the complainant, a Muslim woman, had

not been directly discriminated against through being prohibited from wearing a full face veil

at the school where she was a bilingual support worker. It was accepted that this was indirect

discrimination but this discrimination was found to be justified on the basis it was

educationally necessary that her pupils could see her face.

The problems with these decisions are as follows. Whilst, in Eweida, it may have been in

accordance with established case law to have concluded there was no discrimination in either

a direct or indirect form, it has been argued by a number of writers that she was subjected to a

discriminatory detriment in so far as she was prevented by the company policy from

manifesting her religion.23

Moreover, even if in the circumstances there was no violation of

the EqA, there was a prima facie violation of her human rights as guaranteed by Article 9

ECHR.

In Azmi, the EAT was adamant that manifestation of a religious belief cannot give rise to

direct discrimination in circumstances where a rule is imposed which affects everyone

equally, irrespective of religious belief (or lack of such a belief). However, it can be

contended that, in the context of religion, this is a rather superficial approach to direct

discrimination. If such a rule is examined in a global context, it can be argued that prohibition

21

See above n. 4. 22

See above n. 3. 23

Lucy Vickers has criticised this decision and has argued that indirect discrimination should be found in such

cases and the emphasis should then be on proportionality – see Lucy Vickers, “Religious discrimination in the

workplace: an emerging hierarchy?” (2010) Ecc LJ 280, at pp 288-289. For further critical discussion of this

issue see Hatzis, N, ‘Personal beliefs in the workplace: how not to define indirect discrimination’ (2011) MLR

287.

7

of the veil is a rule that, in practice, impacts only on Muslim women. Applying the

established ‘but for test’,24

it could be concluded that but for the applicant’s Islamic beliefs

she would have been able to continue in her job. In the 1990s, this test was applied by the

courts to enable them to re-interpret the SDA so that discrimination against a pregnant

woman constituted direct sex discrimination.25

In so doing, the courts were able to overrule

previous case law which required a pregnant woman to be compared with an ill or injured

man whose medical condition would result in him being absent from work to a similar period

of absence that pregnancy involves. The rationale for this approach was that only women can

become pregnant. It can be argued that a similar approach, avoiding the need for a

comparator, should be applied to a Muslim woman who wishes to wear the veil at the

workplace.

There was also an unfortunate hint of Islamophobia in the underlying reasoning of the

original tribunal in that the tribunal members compared the face veil with the balaclava and in

so doing (unwittingly) associated the veil with images and public perceptions of terrorism.26

In this context, it is worth mentioning that the full face veil, even more than the hijab, does

seem to generate hostility in some European circles. This is illustrated by the well-publicised

statement by the erstwhile Minister of Justice, Jack Straw,27

that he thought it right to ask

Muslim constituents to remove the veil when attending his surgery. The highly controversial

and offensive ‘Danish cartoons’ also used the imagery of the veil to equate Islam with

terrorism. Most recently, in April 2011, France has gone so far as to criminalise the wearing

of the veil in public places.28

In Azmi, had the tribunal found that there was direct discrimination then this would also have

created a problem in that justification of the Council’s policy could not then have been

justified by the educational needs of the school children. Whether the children were put at a

disadvantage, given that Azmi was providing language support, is a matter for expert

evidence to resolve. However, would/should the decision be the same in a similar case in the

future, but where the subject taught is, for example, Mathematics?

These issues were also at the heart of Chaplin’s complaint against her employer, the Royal

Devon and Exeter NHS Foundation Trust.29

Chaplin worked as a nurse in the geriatric ward

of a state hospital from 1989 to 2010. A uniform policy, based on guidance from the

Department of Health, specified that only certain kinds of jewellery could be worn.

Necklaces were not allowed because of the risk of injury when handling patients. The policy

24

As propounded by the House of Lords (HL) in James v Eastleigh BC [1990] ICR 554. McColgan also states

the discrimination in Azmi could have been perceived as direct, see above n. 13, at p 13. 25

See the HL decision in Webb v EMO Cargo Ltd [1993] ICR 175, which overruled Hayes v Malleable Working

Men's Club [1985] ICR 703 and subsequent decisions based on it. 26

See report of case Michael Rubenstein, “Religious discrimination – school’s refusal to allow teacher to wear

full veil’, Equal Opportunities Review, 1 December 2006 - http://www.eortrial.co.uk/default.aspx?id=1083675

(last accessed 26 April 2012).

27 A. Browne, “I would prefer women not to wear the veil at all, says Straw”, The Times Online, 7 October

2006, - http://www.timesonline.co.uk/tol/news/politics/article664168.ece (last accessed 26 April 2012). 28

The Danish cartoons included several caricatures of Muhammad including one of him wearing a headdress

shaped like a bomb – see “Muhammad cartoon row intensifies” - http://news.bbc.co.uk/1/hi/4670370.stm (last

accessed 26 April 2012). On the French ban, see Lizzy Davies, “French government prepares total ban on full

Islamic veils”, The Guardian, 21 April 2010 - http://www.guardian.co.uk/world/2010/apr/21/france-ban-

islamic-veil?INTCMP=SRCH (last accessed 26 April 2012). 29

This case never went beyond the employment tribunal stage as Chaplin was advised to lodge proceedings at

the EctHR as an appeal to the EAT would have had no prospect of success given the Court of Appeal’s decision

in Eweida.

8

added that any member of staff who wished to wear particular types of clothes or jewellery

for religious or cultural reasons could seek permission, and that approval would not be

unreasonably withheld.

In 2007 V-necked tunics were introduced. Consequently, Chaplin’s cross and chain were both

more visible and accessible than had previously been the case. In June 2009 Chaplin’s line

manager asked her to remove them. A compromise could not be reached about possible

alternatives – for example, wearing the cross under a high-necked top – and Chaplin was

moved to a non-nursing temporary position which ceased to exist in July 2010. She applied to

the employment tribunal in November 2009, complaining of direct and indirect

discrimination on religious grounds. The tribunal held that there was no direct discrimination

since the hospital’s stance was based on health and safety rather than religious grounds. As

regards the complaint of indirect discrimination, it held that there was no evidence that

‘persons’ other than the claimant had been put at a particular disadvantage. Moreover, the

hospital’s response to Chaplin’s request to wear the cross visibly had been proportionate.

The problem with discrimination law is that it is not sufficiently flexible to ensure that issues

concerning religious dress and religious beliefs are resolved in a way that will be consistent

with the Convention. Eweida may not have been the victim of unlawful discrimination under

the EqA but, as was previously argued and has now been confirmed by the EctHR, her rights

under Article 9 were infringed. The decisions in Azmi and Chaplin may have been correct on

their facts, but the method of reaching those decisions should not be dependent on finding the

presence of direct or indirect discrimination, and in the latter context determining whether the

discrimination could be commercially justified. Rather, the issue of justification should be

resolved by reference to whether there are legitimate grounds for interfering with rights in

line with Article 9(2) ECHR.30

In the Azmi case there is no suggestion that the school would have dismissed Azmi if she had

wanted to wear the hijab (headscarf) rather than the full veil. However, it is not inconceivable

that a school might want to impose a ban on any form of Islamic dress on philosophical

grounds even where it has no impact on a teacher’s ability to communicate with her students.

Moreover, it is likely that there are employers who would object to the hijab through fear that

the wearing of it could offend customers or clients who might take their business elsewhere.

Prohibiting the hijab at the workplace will constitute indirect rather than direct discrimination

in that a substantial number of women who are British Muslims see no need to cover either

their face or head in everyday life and there are other religions such as orthodox Judaism that

require women to cover their heads, and therefore the employer’s dress code will be capable

of justification. The Bilka-Kaufhaus test might permit an employer to justify restrictions on

an employee’s religious rights in order to protect its business interests, but, as the following

discussion of the EctHR decision in Eweida demonstrates, the EctHR is likely to give rather

less priority to an employer’s commercial interests.

30

This would also deal with one of the problems raised by McColgan, above n. 13, in that such a change in the

law would not enable an individual to rely on Article 9 to act on religious beliefs that prohibited’ miscegenation’

as such beliefs are clearly not compatible with other Convention rights.

9

4. THE EctHR DECISIONS RE EWEIDA AND CHAPLIN

In both of these cases the EctHR focused not on the nature of the discrimination but as to

whether there had interference with the rights of Eweida and Chaplin to manifest their

Christian beliefs through displaying crucifixes.31

In both cases the EctHR found there had

been such interference but found the interference justified in Chaplin’s but not Eweida’s case.

With respect to the latter, the way that the issue of justification was approached was very

different to that of the employment tribunal and the Court of Appeal which, in line with

Bilka-Kaufhaus, concentrated on the employer’s commercial and organisational objectives. It

is true that in its decision in Eweida the Court of Appeal did refer to Article 9, but the

discussion of when interference with restriction of rights is permissible was relatively cursory

and based on the view that an individual’s rights can be interfered with when they freely put

themselves in a position where they know that interference or restriction will occur.

This latter position is consistent with a number of previous decisions concerning Article 9,

and one major change in the law as a result of the EctHR decision in Eweida is that this line

of cases has now been disapproved.32

Arguably, one unfortunate tendency in some human

rights cases has been to make artificial distinctions between acts motivated by a religious

belief and acts which should be recognised as manifesting a religious belief.33

The other

major change as a result of the decision in Eweida is that it is now clear that the right to wear

religious dress and symbols is not restricted to where the wearing of such dress and symbols

is established as core to the religion concerned or is regarded as a duty imposed by the

religion; it is sufficient that that there is an intimate connection between the dress and/or

symbols and the individual’s religion. Therefore, although the EctHR has not completely

ended the need to distinguish between motivation and manifestation it has clarified that the

latter can often be regarded as the consequence of the former.34

With respect both to Eweida and Chaplin the EctHR considered the circumstances in which it

is permissible to interfere with or restrict rights under Article 9. Typically, restrictions must

be necessary in the interests of a democratic society and must be by reference to criteria such

as maintaining public health, safety or order or protecting the rights and freedoms of others.

With regard to Eweida, whilst the EctHR accepted that promoting a corporate image was a

legitimate aim for British Airways, the majority of the Court had no difficulty in applying the

principle of proportionality to find that the employer’s perceived interests were outweighed

by the right of Eweida to manifest her Christianity at the workplace.35

This part of the EctHR

decision vividly demonstrates how the approach to justification under the ECHR is very

31

Paras 91 and 97, above n. 5. 32

See para 83, above n. 5. In Stedman v UK (1997) 23 EHRR CD, for example, the Commission ruled that the

applicant had no claim under Article 9 where she refused to work on Sundays as she was free to resign. Most

pertinently, in Karaduman v Turkey (1993) 74 DR 93, the Commission ruled that the applicant’s rights were not

infringed where a university refused to graduate Karaduman unless she agreed to be photographed without her

headscarf. The EctHR’s decision in Eweida on this point might also cast doubt on the correctness of the recent

EAT decision, in Mba v Merton LBC [2013] ICR 658, that the claimant, a practising Christian, had not been

subject to unlawful discrimination by being required to work in a care home on Sundays on a rota basis where

this led to her feeling obliged to leave her job. 33

See, for example, Köse v Turkey Application No: 37616/02, 24 January 2006. 34

We have argued that this problem could also be addressed by amending the EqA to incorporate Article 10

ECHR to the extent that any employee or worker should have the right to wear dress, display symbols or to

adopt a personal appearance which manifests, expresses or is motivated by a protected characteristic – above n.

1, at pp 115-117. 35

Para 94, above n. 5.

10

different to the approach in EU law where, under the Bilka-Kaufhaus ruling, the corporate

concerns of the employer will be given much more prominence, as indeed they were by the

Court of Appeal in its decision in Eweida. Moreover, whilst the EctHR did accept promoting

a corporate image as a legitimate aim its emphasis on proportionality would surely rule out

justification by reference to an employee’s colleagues, or the organisation’s customers or

clients, taking offence as a result of their own prejudices. The Bilka-Kaufhaus ruling might

permit justification on this basis but, it is submitted, the EctHR decision in Eweida has

confirmed that the ECHR does not.

On the other hand, the Hospital Trust’s concerns over the health and safety of both hospital

staff and patients were found to justify the restrictions on Chaplin’s rights. The EctHR took

the view that employers must be permitted a wider margin of appreciation where health and

safety issues are involved as managers on the ground are best placed to assess health and

safety dangers and the measures required to avoid them.36

Whilst the specific issues in Azmi

have obviously not been considered by the EctHR, it can be anticipated that a similar

approach to justification will be taken by the Court if a case containing the same sorts of facts

were to be heard by it in the future. A student’s rights to be educated in an effective manner is

always likely to prevail over a teacher’s desire to express her or his religious beliefs

providing, of course, that the evidence demonstrates that there is a genuine conflict between

the religious rights of the teacher and the educational interests of the student as was the case

in Azmi. For example, this might not be so where the subject being taught has no connection

with language-speaking and there is no hard evidence that the wearing of a veil adversely

impacts on a teacher’s ability to communicate effectively.

5. RELIGIOUS BELIEFS VERSUS SEXUALITY

In our view a distinction should be drawn between dress codes restricting religious rights and

the interference with such rights where they conflict with the rights of lesbian, gay, bisexual

and transgendered (LGBT) persons. As in Azmi and Chaplin, there may be educational or

health and safety reasons for banning a particular form of religious dress, but, generally, the

wearing of a particular form of dress or the display of religious symbols does not impact on

an employee’s ability to do her or his job efficiently. Hostility to religious dress is more

likely to be motivated by the prejudices of others. This is particularly so where such hostility

is in reality rooted in racism reflecting Anti-Semitism or Islamophobia.

However, adherents to particular religions may also have their own prejudices when it comes

to working or dealing with LGBT persons. Indeed, the conflict between rights to act in

accordance with religious beliefs and protection of the personal dignity of gay and lesbian

persons is inevitable given that the three ‘religions of the book’ are regarded by many of their

adherents as characterising homosexuality as a sin. In our view, in such conflicts of rights

situations priority should be given to rights of sexual orientation and identity. Whilst there are

debates as to whether an individual’s sexual orientation or identity is biologically determined

or the result of individual choice, there can be no doubt that for many LGBT persons their

sexual orientation or identity is fixed and is something over which they have no control.

Religious beliefs are however more akin to political beliefs in that whatever a person’s

upbringing such beliefs can and not infrequently do change in adult life, and are therefore

ultimately a matter of individual choice. Moreover, as argued by Laws LJ in the quote set out

36

Paras 98 and 99, above n. 5.

11

below, such beliefs are purely subjective and should not be permitted to prevail over an

individual’s rights based on sexual orientation or identity which, like race and gender, should

be perceived as immutable characteristics. The oppression suffered by the religious believer

through being required to do his or her job on the same basis as other employees should be

given rather less weight than the oppression suffered by LGBT persons through their sexual

orientation or identity being regarded as a sin.

These conflicts of rights issues were at the heart of the Court of Appeal decisions in Ladele v

Islington LBC37

and McFarlane v Relate Avon Ltd.38

Ladele was a registrar who refused to

conduct ceremonies for civil partnerships on the basis this conflicted with her beliefs as a

Christian. McFarlane was employed by a counsellor by Relate, and he contended that it was

unlawful discrimination to have dismissed him for refusing to counsel gay couples where

again such relationships offended his Christianity. In both cases the Court of Appeal accepted

there was indirect rather than direct discrimination, but in both cases found the employers’

actions were justified given that the employees’ beliefs should not permit them to refuse to

carry out work which they were employed to undertake.

It should be noted that although these cases were decided under provisions that are now

incorporated into the EqA, the Court of Appeal did provide considered discussion of the

implications of Article 9 ECHR – indeed as the employee of a core public authority Ladele

was able to rely directly on the Convention as well as the ROB Regulations. Similarly, in the

case of R (on the Application of Johns) v Derby City Council,39

the High Court found for the

Council on the bases of both human rights law and discrimination law. This case concerned

the right of Derby City Council to refuse to permit Mr and Mrs Johns to foster young children

because, as Pentecostal Christians, they regarded homosexuality as a sin. The couple failed

on all three bases of their claim: Article 9 ECHR; the EqA and the Wednesbury principle in

public law. Essentially, the court was subordinating the right to act on religious values to the

recognition that being homosexual is an entirely natural form of sexuality, and gay people

(even children who do not yet know they are gay) should not be exposed to individuals who

are in a position to undermine their personal dignity.40

This decision was obviously given in

the context of family rather than employment law but this should not be of any significance.

In McFarlane, it is interesting to note that that the Court of Appeal considered a witness

statement by former Archbishop of Canterbury, Lord Carey. He argued:

“The comparison of a Christian, in effect, with a ‘bigot’ (i.e. a person with an

irrational dislike to homosexuals) begs further questions. It is further evidence

of a disparaging attitude to the Christian faith and its values. In my view, the

highest development of human spirituality is acceptance of Christ as saviour

and adherence to Christian values. This cannot be seen by the Courts of this

land as comparable to the base and ignorant behaviour. My heart is in anguish

at the spiritual state of this country...It is, of course, but a short step from the

dismissal of a sincere Christian from employment to a ‘religious bar’ to any

employment by Christians. If Christian views on sexual ethics can be

37

[2010] ICR 532. 38

[2010] ICR 507. 39

[2011] EWHC 375. 40

A similar approach was also taken by the Court of Appeal in Hall v Bull [2012] 2 All ER 1017 where it was

held that an hotelier had committed unlawful discrimination by refusing to permit a gay couple to have a double

bedroom.

12

described as ‘discriminatory’, such views cannot be ‘worthy of respect in a

democratic society’. An employer could dismiss a Christian, refuse to employ

a Christian and actively undermine Christian beliefs”.41

Although the courts have consistently refused to identify a hierarchy of rights, in practice this

is what has taken place in the above three cases. This is inherent in the following arguments

(with which we agree) propounded by Laws LJ in responding to Lord Carey’s statement.

“In a free constitution such as ours there is an important distinction to be

drawn between the law's protection of the right to hold and express a belief

and the law's protection of that belief's substance or content. The common law

and ECHR Article 9 offer vigorous protection of the Christian's right (and

every other person's right) to hold and express his or her beliefs. And so they

should. By contrast they do not, and should not, offer any protection whatever

of the substance or content of those beliefs on the ground only that they are

based on religious precepts. These are twin conditions of a free society.

... The general law may of course protect a particular social or moral position

which is espoused by Christianity, not because of its religious imprimatur, but

on the footing that in reason its merits commend themselves. So it is with core

provisions of the criminal law: the prohibition of violence and dishonesty ...

But the conferment of any legal protection or preference upon a particular

substantive moral position on the ground only that it is espoused by the

adherents of a particular faith, however long its tradition, however rich its

culture, is deeply unprincipled. It imposes compulsory law, not to advance the

general good on objective grounds, but to give effect to the force of subjective

opinion. This must be so, since in the eye of everyone save the believer

religious faith is necessarily subjective, being incommunicable by any kind of

proof or evidence. It may of course be true; but the ascertainment of such a

truth lies beyond the means by which laws are made in a reasonable society.

Therefore it lies only in the heart of the believer, who is alone bound by it. No

one else is or can be so bound, unless by his own free choice he accepts its

claims.

The promulgation of law for the protection of a position held purely on

religious grounds cannot therefore be justified. It is irrational, as preferring the

subjective over the objective. But it is also divisive, capricious and arbitrary.

We do not live in a society where all the people share uniform religious

beliefs. The precepts of any one religion – any belief system – cannot, by force

of their religious origins, sound any louder in the general law than the precepts

of any other. If they did, those out in the cold would be less than citizens; and

our constitution would be on the way to a theocracy, which is of necessity

autocratic. The law of a theocracy is dictated without option to the people, not

made by their judges and governments. The individual conscience is free to

accept such dictated law; but the State, if its people are to be free, has the

burdensome duty of thinking for itself”.42

41

Quoted in paras 12 - 19, above n. 38. 42

Ibid. paras 22 – 24.

13

In Eweida, the EctHR decided that Ladele had been subjected to indirect discrimination,

contrary to Article 14, on the grounds that the Council had refused to exempt her from the

requirement to conduct civil partnership ceremonies where this work was contrary to her

deeply-held Christian beliefs. However, the majority of the Court decided that the Council’s

policy was justified as it was designed to meet its legitimate aim of being an equal

opportunities employer and to prohibit its employees from discriminating against others.43

With regard to McFarlane the whole Court found that his rights under Article 9 had not been

unlawfully restricted, as he had voluntarily enrolled on a course to enable him to provide

counselling to couples in the knowledge that it was not possible to filter out couples in same

sex relationships so that it would not be necessary for McFarlane to provide counselling

services to them. The employer had acted lawfully as its actions were intended to secure the

implementation of its policy of providing a service without discrimination.44

It is important to emphasise that in its judgments concerning Ladele and McFarlane the

EctHR did not give any recognition to the concept that there should be a hierarchy of rights

where sexual identity generally takes priority over rights of religious belief, though such an

approach is perhaps implicit in the decisions it reached. Nevertheless, its actual decision was

based on the position that the Court of Appeal was acting within an acceptable margin of

appreciation in finding against Ladele and McFarlane. On this basis, if the Court of Appeal

had found for either or both of them by adopting the sort of reasoning underpinning the

dissenting opinion, then presumably this decision too would have been within the margin of

appreciation.

It is our contention that such a hierarchy should be recognised, and it is arguably unfortunate

that the EctHR did not take the opportunity to lay down such a proposition. There is, of

course, no current indication that the EctHR will ever take this view but nevertheless it could

do so in the future - after all, as documented below, EctHR jurisprudence on sexuality has

developed from recognising the right of signatory states to criminalise homosexuality to

rendering it unlawful for the state as an employer to discriminate against gay and lesbian

employees and workers. The key point for this paper is that prioritising rights concerning

sexual identity is a position that could be adopted in the context of human rights law in a way

that is unlikely to occur under discrimination law (although, admittedly, the tenor of Laws

LJ’s dicta was very much along these lines 45

), and this reinforces our argument that the EqA

should be amended to expressly base the relevant provisions on Articles 8 and 9 ECHR.

Moreover, as documented below, the EctHR has a wealth of experience in dealing with

conflicts of rights issues, and the law is given consistency if cases are decided on a single set

of principles rather than two different sets which may, in some circumstances, compete with

one another and produce conflicting results. However, there is one context in which the EqA

prioritises religious rights over rights concerning sexual identity– this being the right given to

43

Paras 105 & 106, above n. 5. In a dissenting opinion Judges Vučinić and de Gaetano took the view that

Ladele had been unlawfully discriminated against contrary to Art 14 as she had been in employment prior to the

establishment of civil partnerships and she should have been treated as a conscientious objector. For further

discussion on this point see Mark Hill, ‘Religious symbolism and conscientious objection in the workplace: an

evaluation of Strasbourg's judgment in Eweida and others v United Kingdom’ (2013) 15 Ecc LJ 191. 44

Ibid. para 109 45

Above n. 42.

14

organised religions to prohibit LGBT individuals from acting as religious celebrants. 46

This

issue will now be examined.

6. ORGANISED RELIGIONS, SEXUALITY AND THE ECHR

As a document of the 1950s, the ECHR focused upon the human rights issues of importance

in the immediate post-war era. Consequently, whilst protection of religious beliefs are

explicitly recognised in Article 9 of the document, there was an absence of any recognition of

an individual’s right to practise his or her sexual orientation. Indeed in early cases,

Convention organs rejected claims that the general prohibition of homosexuality was a breach

of a person’s right to privacy under Article 8.47

A. The Emergence of Protected Rights of Sexuality under the Convention

However, post-1950s, the decriminalisation and tolerance of homosexuality in many western

European states, saw Strasbourg being targeted as a forum to push for greater rights by sexual

minorities whose countries had not legalised their sexual practises, or had not gone (in the

litigants’ opinion) far enough. Relying upon the Convention as being a ‘living document’

Strasbourg changed its earlier view and accepted that homosexuality was protected under the

‘private life’ provisions of Article 8. In Dudgeon v United Kingdom 48

a challenge was made

to sections 61 and 62 of the Offences Against the Persons Act 1861 which criminalized

homosexuality activity in Northern Ireland. The United Kingdom attempted to argue that the

law was justified because the community’s moral objection to homosexuality was based upon

strongly held religious beliefs.49

The EctHR accepted the legitimacy of taking into account

such views, but held that the interference was not necessary in a democratic society as the

practice of non-enforcement of this criminal law had not led to the breakdown in the “moral

fabric of [Northern Irish] society.” 50

More recently, the Court has adopted a much stronger stance in favour of protecting the right

to practise homosexuality on the basis that there must be “particularly serious” reasons for

“interfering with this most intimate part of an individual’s private life,51

and that as the

general movement was towards legalising homosexuality in contracting states then

restrictions upon the practice of homosexuality were not necessary in a democratic society.

Indeed, it was the Court, through these decisions, that provided the catalyst of change

whereby the EU decided to require member states to outlaw discrimination on grounds of

sexual orientation at the workplace and in other societal contexts.

46

To avoid confusion it should be understood that the term ‘celebrant’ refers to those who preside over and

conduct religious ceremonies, such as vicars, bishops, priests, imams and rabbis, rather than practising

individual adherents of such religions. 47

Appl 104/55 X v Federal Republic of Germany, Yearbook I (1955-1957) 228. 48

(1981) 4 EHRR 149. 49

Ibid. para 56. 50

Ibid. para 60. 51

Smith and Grady v United Kingdom (1999) 29 EHRR 493, para 89. Also see the Lustig-Prean decision, above

n. 6.

15

B. The Rights of Organised Religions

In contrast the right to practise one’s religion was explicitly recognised in Article 9 of the

Convention. Originally Convention organs treated this as an individual right, 52

but the

EctHR quite rightly in Pastor X and Church of Scientology v Sweden 53

acknowledged that

Article 9 had a collective element allowing organised religions to represent its members. The

explicit wording of Article 9 supports this position as it recognises that the right can be

exercised in “community with others.” The importance of the “collective element” is that it

seems to allow the religious community or organised religion a degree of freedom from state

interference, and consequently an element of self-regulation.

This self-regulation has seen in cases such as Hasan and Chaush v Bulgaria.54

In that case

the government of Bulgaria intervened to impose a Chief Mufti for the Bulgarian Muslim

community after a disputed election had returned Hasan to this position. Bulgaria justified

this intervention as a means of preventing tensions within its Muslim community. The Grand

Chamber found that

“...religious communities traditionally and universally exist in the form of organised

structures. They abide by rules which are often seen by followers as being of a divine

origin....” 55

Such rules clearly cover “the personality of the religious ministers,” and an imposition of a

leader in preference to the expressed wishes of the majority was an arbitrary interference

unless it could be justified (which the Grand Chamber said was not possible on the facts

because the domestic law was unclear).56

In reaching this conclusion the Grand Chamber

made several points which seem to go to the core of the relationship between states and

religions. For example it stated:

“...the autonomous existence of religious communities is indispensable for pluralism in a

democratic society...” 57

However, Strasbourg organs have been more willing to intervene where the religion in

question is an established religion. Thus the Commission of Human Rights held that the

Article 9 rights of a vicar of the Evangelical Lutheran Church’s (the official established

church of Norway) were not infringed when he was dismissed after he refused to perform the

state functions of his office (e.g. marriages, examination of marriage conditions, conciliation

in matrimonial causes, and maintenance of the birth register) because of his opposition to the

amendments to the Abortion Act 1978.58

The Commission held that there was no breach of

Article 9 because he had not been dismissed for the beliefs he held, but rather because of his

refusal to carry out the state functions; and if there was a conflict between the state functions

and his religious convictions his freedom of conscience was guaranteed by the ability of him

to leave the position of clergyman. Whether, today, the EctHR would reach the same decision

if the clergyman was required to perform same-sex marriage partnerships and he was strongly

52

See Church of X v United Kingdom (1969) Yearbook XII 306. 53

App 7805/77 (1978) 16 D & R 68. 54

(2002) 34 EHRR 1339. 55

Ibid. para 62. 56

Ibid. para 86. 57

Ibid. para 62. 58

Knudsen v Norway, App No 11045/84 (1985) 42 D & R 247.

16

supported by parishioners, bishops and the large majority of the Church, is less certain.59

Moreover, this issue now needs to be examined through the lens of the House of Lords’

decision in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v

Wallbank 60

where it was held that the Church of England could not be a core “public

authority” as this would prevent it from being a “victim” under the HRA. This set of case law

suggests that churches (even established churches) should be permitted a high degree of

autonomy when it comes to internal regulation.

C. Is a Religion or Religious Organisation in Breach of the Convention if it Expels a

Homosexual Celebrant?

This raises the question as to whether the state can intervene when a religious organisation

dismisses an employee or celebrant because that person is a homosexual and that is against

the tenets or widely held beliefs of many of that religion’s adherents.

There is no direct case law on this, partly because religions are by and large seen as private

organisations not required to comply directly with the Convention. Arguably the recognition

of the right to practise homosexuality as an aspect of privacy under Article 8 requires the

state to interfere with organised religions which ostracise homosexuals either because it gives

a justification for interference under the “protection of the rights of others” provision in

Article 8(2), or because it would engage the discrimination provision in Article 14 of the

Convention. However, Carolyn Evans warns that

“...interference runs the risk of itself being an intrusion into the religious freedom of other

members of the group in order to protect the freedom of one member.” 61

Thus there should be careful consideration by a state before it decides to intervene. Such

intervention could well conflict with the autonomy principle and the newer ‘neutrality’

principle endorsed in Refah Partisi v Turkey where the state must be a “neutral and impartial

organiser of various religions, faiths and beliefs.” 62

Such principles accord with pluralism

and other key values of a modern multi-ethnic/religious society. This neutrality principle

allows religious and other belief based organisations to sort out their own divisions on

doctrine without state interference, with discord being resolved either through conformity,

accommodation or schism. It is clear that in the modern age, debates as to the compatibility

of homosexuality with the tenets of certain religions has brought about tensions and schisms

within organised religions. The experience of the Anglican Church, as discussed below,

exemplifies these tensions.

The decision of the EctHR in ASLEF v UK is worth exploring by means of analogy.63

The

trade union, ASLEF, adopted a policy which aimed to ensure:

“...the furtherance of the labour movement generally towards a Socialist society [and to]

promote and develop and enact positive policies in regard to equality of treatment in our

59

The approach in Knudsen is arguably not consistent with the position adopted by the EctHR in Eweida, above

n. 32. 60

[2003] UKHL 37. 61

Carolyn Evans, Freedom of Religion Under the European Convention on Human Rights (Oxford: Oxford

University Press, 2003), p 129. For similar sentiments see Robin White and Clare Ovey, Jacobs, White & Ovey

The European Convention on Human Rights 4th

edn (Oxford: Oxford University Press, 2006) at p. 316. 62

(2003) 37 EHRR 1, para 91. 63

[2007] ECHR 184.

17

industries and ASLEF regardless of sex, sexual orientation, marital status, religion, creed,

colour, race or ethnic origin".

Its emphasis on equality and non-discrimination led it to expel a member who had stood as a

British National Party (BNP) candidate at elections in 2002. Despite domestic tribunals

finding that ASLEF had acted unlawfully, contrary to s174 of the Trade Union and Labour

Relations Act 1992, the ECtHR found in favour of the union holding that

“...Prima facie trade unions enjoy the freedom to set up their own rules concerning conditions

of membership,” 64

And

“Where associations are formed by people, who, espousing particular values or ideals, intend

to pursue common goals, it would run counter to the very effectiveness of the freedom at

stake if they had no control over their membership.” 65

D. Justifications for State Intervention

Whilst these dicta would seem to be equally applicable to religious organisations because

they “espouse particular values or ideals,” the EctHR went on to accept there may be

occasions when it was proportionate to intervene in ‘membership’ issues when there were

fundamental individual rights at stake. 66

In this particular case there was no material

hardship suffered by the BNP member, or abusive or unreasonable conduct by the union, and

therefore state interference was not justified.

In Hasan, whilst the Grand Chamber’s judgment rejected Bulgaria’s claim of justification in

that case, it did seem to permit interference if it is proportionate in particular circumstances.

Direct case law on this issue is lacking, although one can draw some analogies from domestic

cases relying on the Convention, and cases decided on similar issues by the ECtHR. As

examples: the decision in R v Secretary of State for Employment and Education, ex p

Williamson 67

would seem to justify state intervention if there was treatment of members of

the religious community which amounted to ‘torture, inhumane or degrading treatment’ under

Article 3; whilst the deprogramming of sect members by a Christian organisation in Riera

Blume v Spain 68

was held to breach the right to liberty under Article 5 because the

individuals were detained incommunicado against their will. These decisions would seem to

require state intervention when a celebrant is harassed or treated with some form of disrespect

because of his or her sexuality, but not if the celebrant is dismissed or expelled from the

religion (or religious organisation).

E. The Conflict of Rights ‘Paradigm’

In other areas of conflict of rights under the Convention such as when the right to privacy

under Article 8 comes into conflict with the press’s freedom of expression under Article 10,

resolution has been achieved through adopting what has been termed ‘parallel analysis.’69

This methodology requires the courts to examine each right individually and decide which

64

Ibid. para 38. 65

Ibid. para 39. 66

Ibid. para 50. 67

[2005] UKHL 15. 68

(2000) 30 EHRR 1. 69

Helen Fenwick, Civil Liberties and Human Rights 4th

edn (London: Routledge-Cavendish, 2007) at p. 958.

18

interference was the more intrusive. Once that has been decided the courts will intervene to

protect the right which has been subject to the greater interference. The methodology in

privacy litigation does not presume any priority between the rights, and this should also be

assumed in the conflict between Article 8 and Article 9 in relation to conflicts between the

sexuality of the celebrant and the tenets of the religion. The fact the latter is explicitly

mentioned in the Convention whilst the former has only been derived from case law is

irrelevant. However, it becomes difficult to see how judges would be able to see that the

rights of the celebrant would prevail over the beliefs of a substantial number of adherents of

the religion, particularly if the neutrality and autonomy principles are also taken into

consideration.

It is worth giving a couple of examples to see how the parallel analysis approach may work in

practice. An imam is found to be a practising homosexual after a member of his congregation

finds him in a compromising situation. A hearing takes place and the mosque which

employed him decides to expel him because he has broken, in the eyes of the mosque’s

trustees, a central tenet of their religious beliefs. The imam’s right to privacy is clearly

infringed but in practice it would seem that the courts would respect the rights of the religious

community above his. He has other options as to how to practise his faith.

Suppose in another scenario we are concerned with a teacher of religious education in a

private Catholic school who is a practising lesbian. The school’s ethos emphasises a

particular interpretation of the Bible which explicitly mentions the sinfulness of same sex

relationships. The teacher is fired when her sexuality is exposed, and the reasons for this are

widely published amongst the school’s community (parents, staff and pupils), and the broader

Catholic school sector. In this scenario whilst there may be no breach of Article 8 in relation

to the sacking itself, the widespread dissemination of the teacher’s sexuality would be a

breach as this is unnecessary in order to protect the religious ethos of the school in question.

This scenario highlights an interesting aspect of the Strasbourg jurisprudence as it would

likely develop in this type of clash of rights, in that the religious organisation is permitted to

decide who shall remain an employee on the basis of the organisation’s beliefs, but it must

deal with that individual’s dismissal in a manner which adheres to certain procedural and

other values (including being proportionate to other Convention rights engaged). An

approach which is consistent with this conflict of rights paradigm has been adopted by UK

discrimination legislation.

7. THE ORGANISED RELIGION DEFENCE

The Sex Discrimination Act 1975 permitted organised religions to require celebrants to be

male and unmarried. The ROB and SO regulations applied this blanket exemption from the

law to permit discrimination against LGBT persons. Regulation 7(3) of the ROB Regulations

also permitted employers which had an ethos based on a religion or belief to require

employees to observe that ethos. Paragraphs 2 and 3, Schedule 9 of the EqA re-enact these

exemptions.

Despite reservations contained in a reasoned opinion given to the UK Government by the EU

Commission in November 2009,70

the organised religion defence does not require any

element of justification such as proportionality. It remains the case that the defence arises

70

See IDS, The Equality Act 2010 (London: Income Data Services, 2010), p. 239.

19

providing it can be shown that employment is for the purposes of an organised religion and a

requirement can be applied so as to comply with the doctrines of the religion, or so as to

avoid conflict with the strongly held religious convictions of a significant number of the

religion’s followers. There are inherent difficulties with the defence in so far as the historical

doctrines of a religion are not necessarily rooted in that religion for all eternity 71

, and,

similarly, the convictions of a religion’s adherents can change as any given society changes.

Nevertheless, the general thrust of the defence is clear. A church, synagogue, temple, mosque

and so on can refuse to accept a person as a celebrant if that person is gay. As things stand,

this defence was found to be compatible with EU law and thus lawful by the High Court in R

(AMICUS) v Secretary of State for Trade and Industry.72

In this case, in seeking to challenge the legality of the defence, the trade union applicants

suggested there was no coherent basis for the belief that homosexuality breached the tenets of

religions such as Christianity,73

but Richards J adopted the traditional non-interventionary

approach of English courts when it came to issues of religious faith: 74

“I consider that the resolution of the theological dispute raised by the NUT would take the

court beyond its legitimate role.” 75

This approach is very much in line with the Convention jurisprudence which respects the

self-regulation of organised religions and the principles of autonomy and neutrality. Richards

J also took the view that the provisions did not breach Article 8 or Article 14 of the

Convention, finding that the existing Convention case law allowed states to balance Article 8

with Article 9, and that the Regulations constituted a proportionate balance.76

Although not

expressly adopting a parallel analysis approach (see above), Richards J did address the issue

in a manner which is easily adaptable to this, and thus concluded that the organised religion

defence was compatible with both branches of European law.

There are three potential models for dealing with conflicts between an individual’s right to

determine his or her sexuality and the collective rights of religions:

1. A ‘non-interventionist’ model, which reflects the values of autonomy, so that the

collective rights of a religious organisation gives the organisation an unrestricted right

to choose who it employs or accepts as a member.

71

It is interesting to note that in Williamson, above n. 67, Rix LJ questioned the ability of any court to define

religious faith on the basis that a secular court was ill-equipped to do so – see para 123. However, this is

precisely what the organised religions defence requires tribunal and courts to do. 72

[2007] ICR 1176. 73

Ibid. para 36. It is noticeable that the three intervenors against the trade unions challenge were all Christian

faith organisations. It should be said that some sects within Christianity make their belief that homosexuality is

sinful very clear. 74

This approach was put forward in R v Chief Rabbi of the United Hebrew Congregation of Great Britain and

the Commonwealth, Ex p Wachmann [1992] 1 WLR 1036. It also perhaps underpins the reluctance of the courts

to regard the relationship between a celebrant and his/her church as a contractual rather than a spiritual one. This

is exemplified by the recent decision of the SC in President of the Methodist Conference v Preston [2013]

UKSC 29. The majority decision was powerfully criticised by Lady Hale in her dissenting judgment in which

she argued that the spiritual nature of some of a celebrant’s duties should not preclude the identification of what

would be a contract of employment in any other context. 75

Para 36, above n. 72. 76

Ibid.para 186.

20

2. An ‘interventionist’ model where there is no special treatment of religious employers,

and general discrimination laws, providing they are consistent with Convention

jurisprudence, apply.

3. A ‘halfway house’ model on the basis of which the religious organisation is immune

from claims of discrimination where its doctrine or ethos demands that the position

within that religion is restricted to non-homosexuals; however once the organisation

engages in the outside world by taking on social services, such as adoption agencies

or allowing non-believers to attend their schools, then they should be subject to the

general law of discrimination (albeit as we have argued one based on the Convention

rather than EU law).

It can be argued that EqA, Schedule 9, paragraph 2, is consistent with model 3 and thus

constitutes a reasonable compromise between the requirements of religious employers with

respect to their celebrants and employees and the desire of discrimination /human rights law

to protect rights of sexual orientation. The state is only required to intervene in the internal

organisation of a religion where this impacts on the public domain rather than the private

relationship between a church etc and its celebrants.

The alternative perspective is that, though the organised religion defences may be lawful,

they are not required by EU law or, arguably, the Convention, and thus their retention or

repeal is a matter for British law. As demonstrated by the unsuccessful judicial review

initiated by AMICUS and other trade unions, many see the defences as accommodating

homophobia and thus permitting religious employers to perpetuate employment practices

which otherwise have no place in the twenty first century. Moreover, the defence gives

credence and succour to homophobic attitudes on the part of the secular as well as the

religious sections of the community. Ironically, individuals who have no religion can use

religious values as a cloak of respectability for their bigotry.77

It is not possible and it is not

the role of the law to prevent individuals from holding homophobic views, but it should be

the role of the law to prevent their public manifestation.

It can also be argued that the religious ethos defence contained in Schedule 9, paragraph 3, is

otiose given that, like the general genuine occupational requirement defence and in contrast

to paragraph 2, a requirement must be a proportionate means of achieving a legitimate aim.

Therefore, paragraph 3 effectively adds nothing to the general defence by way of providing

specific additional protection to religious organisations such as faith schools.78

With respect to the paragraph 2 defence, it can be argued that religious beliefs are not static

but often develop in line with secular social thinking even if there is some time lag in this

process. Current debates within the Church of England as to whether gay bishops should be

permitted perhaps provide the best example of how views regarding gay people as unsuitable

for the priesthood can change. On the one hand there are many Anglicans, including a

77

See Simon Gardiner and Roger Welch R, “Football, Racism and the Limits of ‘Colour Blind’ Law:

Revisited”, in Daniel Burdsey (ed), Race, Ethnicity and Football (Abingdon: Routledge, 2011), pp. 222-236;

Matthew Taylor, “English Defence League: new wave of extremists plotting summer of unrest”, The Guardian,

28 May 2010, for further discussion as to how groups such as the English Defence League and the British

National Party use attacks on religious beliefs – in the here and now Islam – as a code for racism. Anti-Semitism

is, of course, rooted in this methodology, be it the Anti-Semitism of the medieval crusaders or the Anti-

Semitism of Hitler’s Nazi Germany. 78

See The Equality Act 2010 (London: Income Data Services, 2010), p 241.

21

number of vicars and other celebrants, who believe that a priest’s sexuality and sex life

should not be a bar to becoming a bishop. On the other hand, there are those who regard this

position as contrary to the teachings of The Bible and thus, effectively, heresy. In the middle,

we have the official but arguably somewhat intrusive position that bishops can be gay

providing they are celibate (even if they have entered into civil partnerships). This debate

also connects with differing positions on whether women, be they heterosexual or lesbians,

should be admitted into the higher ranks of the church hierarchy. Given these debates, should

the organised religion defence really be regarded as simply representing state neutrality or

does, in effect, the defence operate in an interventionist manner to reinforce the position of

the more conservative elements within the Church? 79

There are similar schisms in thought, at least below the surface, in other branches of

Christianity and in other religions such as Judaism and Islam. The most prominent gay

Muslim may be fictional - Syed Masood in television’s ‘Eastenders’ soap opera - but it

cannot be doubted that gay Muslims, who regard themselves as devout, exist in real life.80

Arguably, the strongest argument in favour of the retention of the organised religion defence

is the view that a gay celebrant cannot effectively do her or his job if she/he is rejected by the

large majority of the congregation. In this context it is important to remember that even if

Schedule 9, paragraph 2, was repealed the general genuine occupational requirement defence

in Schedule 9, paragraph 1, could still be applied. This defence permits an employer to

require an employee to be heterosexual where this is a proportionate means of achieving a

legitimate aim, and discrimination law has always permitted refusal of employment where the

provision of personal services are concerned.

For example, in London Borough of Lambeth v Commission for Racial Equality,81

it was

implicitly accepted that is permissible to require a counsellor to be of the same racial or

ethnic group as the majority of the people he or she is employed to provide with advice.

Similarly, it is probably the case that the defence is available to an organisation established to

advise gay people on sexual matters, as only if an advisor is gay is she or he fully able to

understand the complexities of a particular problem that another gay person may have.82

A religious employer who wished to refuse to employ a LGBT person as a celebrant would

no longer be able to plead religious doctrine by way of special exemption, but would be able

to establish that it is a legitimate aim of the employer that the minister is able to serve the

needs of the congregation in his or her care. If it can be shown that all, or a large part, of such

a congregation would not be able to accept a LGBT celebrant then the GOR defence could

well be pleaded successfully. However, if and when the views of many adherents to a

particular religion or a branch of it change, so that they coincide with generally-held views in

secular society, the defence is sufficiently dynamic to allow courts to cease to apply it in

circumstances where the defence has previously been accepted. Automatic exemption ceases

to be the name of the game.

79

For examples of media reporting on these issues see John Bingham, ‘Spectre of gay bishop feud returns amid

Church debate on women’, The Daily Telegraph, 18 January 2013; CofE drops opposition to gay bishops in

civil partnerships - http://www.bbc.co.uk/news/uk-20914799 80

See http://www.imaan.org.uk/ to access the Imaan wbsite which provides support for LGBT Muslim people and their families and friends. 81

[1990] IRLR 23. 82

See Sexual Orientation Discrimination (London: Income Data Services, 2004), p 48.

22

8. CONCLUSIONS

It is quite possible for litigation to be resolved in the same way irrespective of whether a case

is decided on the basis of the EqA or the HRA, and in itself this is no surprise. However, as

we have argued, there is also a potential for conflicting decisions in so far as the former

requires distinctions to be drawn between direct and indirect discrimination and justification

is permitted only in the context of the latter. Moreover, at the workplace, such justification

can be provided by the employer’s organisational and/or commercial needs. As the EctHR

decision in Eweida confirms, human rights law operates on the basis of identifying whether

there has been violation of an individual’s human rights and is not concerned with the

technical form such violation takes. Justification is not solely by reference to the concerns of

employing organisations but by reference to what can be deemed necessary in a democratic

society, and is restricted to specific criteria such as public order, health and safety and the

protection of the rights and interests of others. Normally, an employer’s corporate interests

will be outweighed by an employee’s Convention rights.

Thus we conclude that the best method of protecting the rights of workers to hold and

manifest religious and philosophical beliefs, and to be of specific sexual orientations or

identities, is not by extending the approach taken by sex discrimination and race

discrimination law to these characteristics. Rather, we contend that the EqA should be

amended so that, in effect, the ECHR is given partial direct effect in the employment

relationship, irrespective of whether the employer is characterised as a pure public authority

under the HRA83

. This would be of real practical importance if cases such as Azmi and

Eweida were to arise in the future (as surely they will). In our view, it is very difficult to

identify how an employer’s requirement for a uniform dress code is genuinely undermined,

with respect to its practical value to the organisation, by an individual’s desire to wear a

crucifix, or a headscarf, or a veil unless there are specific conflicting interests to protect such

as genuine educational or health and safety needs. This is a context where workplace rules

should be regarded as subordinate to the demands of pluralism.

The ECHR also explicitly recognises the potential for a conflict of rights and there is an

abundance of jurisprudence concerning how such conflicts should be resolved. In our view,

in the context of cases such as Ladele and McFarlane the British courts and the EctHR have

been right in prioritising rights to sexual orientation over rights to religious beliefs, even if

they have refused to recognise the existence of a formal hierarchy. Where there is a conflict

between individual beliefs that are freely held, in that they are a matter of choice, and

characteristics that are immutable such as gender, race and, to a large extent, sexual

orientation and identity, it is protection of the latter which should prevail, and it is hoped that

one day the EctHR will adopt this position.

The remaining issue is whether the special exemptions from the provisions of the EqA given

to organised religions with respect to the refusal of employment to LGBT celebrants, and to

protect the religious ethos of the employer, should be retained. One argument is that the

normal GOR defence is adequate to ensure the needs of specific congregations are met. In all

other circumstances religious employers should be in the same position as any other

employer in that discrimination on the basis of a person’s sexual identity will be unlawful.

The alternative argument is that the state should not interfere in the private sphere of the

relationship between a religious body and its celebrants. The organised religions defence is 83

For a discussion of how the EqA could be actually amended to reflect Convention rights see above n. 1, at pp

114-117.

23

essentially a mechanism for the state to remain neutral rather than impose an unwelcome and

intrusive equality agenda. We have set out alternative arguments on this issue and leave it to

readers to draw their own conclusions accordingly.