Tolerate All – Except Intolerance?

The European Court of Human Rights has today handed down its decision in a number of cases concerning the right to freedom from discrimination on the grounds of religion and belief.

There’s a good summary on the BBC’s website. Click here to view.

With a good deal of relief, I think that the European Court has got it right in each and every case.

What are the broad principles we can take from these decisions?

• You have a limited right to manifest your religious beliefs by wearing a cross, especially if it is discreet and does not negatively impact the employer’s reputation or brand (there was no evidence in Ms Eweida’s case that the wearing of e.g. turbans and hijabs by other employees had negatively impacted BA’s brand).

• However, that right might be restricted e.g. in a hospital where on health and safety or hygienic grounds a strict prohibition in relation to uniform is reasonably imposed.

• Each country has a wide “margin of appreciation” as to how it strikes a balance between competing rights – and competing rights are I think most likely to arise where e.g. a Claimant suggests that their right to respect for their religion and belief ought effectively to “trump” a third party’s right to respect for their sexual orientation.

• Where an employer imposes a reasonable and lawful set of equality obligations in an Equality and Diversity Policy, say, employees are to be expected to abide by the requirement to respect the rights of others – even if respecting the rights of others might offend against their own religion or belief.

I have argued before that the pro-religious-rights camp is essentially arguing for a right to discriminate on the grounds of sexual orientation. The European Court has made it clear that, as a rule, the law will not tolerate such intolerance.

We applaud the decision. A victory for tolerance and commonsense – and a reminder that, notwithstanding the bile expressed in certain quarters of the media, Human Rights law often strikes exactly the sort of balance that most people imagine it should.

Paul Scholey - Senior Partner

For further information on Employment Rights, please visit our website or call 0113 245 0733 and ask to speak with our Employment Rights team.

“Unnecessary Burdens” in the Equality Act?

BIS has published the “Fifth Statement of New Regulations” setting out the timetable for a number of measures which will be implemented in 2013.

 

This will include “removing unnecessary burdens from the Equality Act”, which specifically means removing employers’ potential liability for harassment by a third party and removing the statutory questionnaire procedure. These changes will be implemented in March 2013.

 

The report openly acknowledges that the ‘new culture’ (which presumably means the ‘red tape challenge’) “has resulted in real benefits to businesses”. Well it certainly is of no benefit to workers!

 

This government is eroding employment rights at an unprecedented pace. It has recently announced that it will be halving the consultation period for collective redundancies (of 100 or more employees) from 90 days to 45 days, making it easier to sack employees. It has already changed the required period of service to be able to claim unfair dismissal from 1 year to 2 years, again making it easier to sack people.

 

It has also announced that it intends to proceed with the ridiculous proposal of ‘employee ownership’, despite 92% of responses to its own consultation expressing concerns about the plans.

 

Fortunately, discrimination law is one area that cannot as easily be hit, as most rights are obtained from Europe, but sure enough where rights can be reduced without being in breach of EU requirements, they are being.

 

These two changes will make pursuing a claim more complicated and difficult, meaning ultimately that wronged employees will be put off pursuing a claim.

 

In particular, the removal of the questionnaire procedure will make it even more difficult to prove equal pay cases and indirect discrimination claims, as the questionnaire process was invaluable in obtaining essential information about company statistics and comparators. The government has said that employees will still be able to ask questions in correspondence, but without the threat of an inference of discrimination if there is a failure to reply, how many employers are likely to voluntarily give the requested information? Not many!

 

Toni Haynes - Solicitor

For further information on Employment Rights, please visit our website or call 0113 245 0733 and ask to speak with our Employment Rights team.