Trevor Phillips makes another big mistake – and gay people may have to pay the price
The head of the Equality and Human Rights Commission, Trevor Phillips, has been giving out mixed messages about the present campaign by extremist Christians to undermine the equality legislation.
A couple of weeks ago he issued a report saying that on the one hand Christians were finding their rights restricted by “too narrow” an interpretation of the law. On the other hand there were Christian activists who were bringing these cases not to gain justice but to obtain political influence.
And on yet another hand, he didn’t want to see the rights of gay people trampled by the granting of special legal privileges and exemptions to religious people. So, out of that mish-mash of contradiction, we have to make some kind of sense.
It all came to a head when the EHRC announced this week that it will seek to intervene in several ridiculous cases taken to the European Court of Human Rights by the Christian Legal Centre. You will remember that this case claims that religious believers are suffering legal disadvantage inBritain.
The EHRC issued a statement that was another masterpiece of confusion. In it, it said:
Judges have interpreted the law too narrowly in religion or belief discrimination claims. If given leave to intervene, the EHRC will argue that the way existing human rights and equality law has been interpreted by judges is insufficient to protect freedom of religion or belief.
It will say that the courts have set the bar too high for someone to prove that they have been discriminated against because of their religion or belief; and that it is possible to accommodate expression of religion alongside the rights of people who are not religious and the needs of businesses.
The Commission is concerned that rulings already made by UK and European courts have created a body of confusing and contradictory case law. For example, some Christians wanting to display religious symbols in the workplace have lost their legal claim so are not allowed to wear a cross, while others have been allowed to after reaching a compromise with their employer.
As a result, it is difficult for employers or service providers to know what they should be doing to protect people from religion or belief based discrimination. They may be being overly cautious in some cases and so are unnecessarily restricting people’s rights. It is also difficult for employees who have no choice but to abide by their employer’s decision.
The Commission thinks there is a need for clearer legal principles to help the courts consider what is and what is not justifiable in religion or belief cases, which will help to resolve differences without resorting to legal action. The Commission will propose the idea of ‘reasonable accommodations’ that will help employers and others manage how they allow people to manifest their religion or belief.
For example, if a Jew asks not to have to work on a Saturday for religious reasons, his employer could accommodate this with minimum disruption simply by changing the rota. This would potentially be reasonable and would provide a good outcome for both employee and employer.
Well, let’s look at the four cases that are being brought to the European Court of Human Rights.
The first is that of Nadia Eweida. If you believe what you read in the Daily Mail or the Daily Telegraph about this woman, you would assume she is a poor, downtrodden little Christian lady, bullied and traduced by her monolithic, anti-religious employer, British Airways. But that isn’t the case. If you take the trouble to read the employment tribunal judgment on this case, you can see that it is Ms Eweida who is, in fact, the bully. Read the untold parts of the story here.
Trevor Phillips calls for “reasonable accommodation” for religious beliefs, similar to that granted to disabled people at work. Well, Ms Eweida was given everything she asked for by BA, and more. She can wear her cross over her uniform – BA changed its uniform policy to accommodate her. She was even offered compensation, but still she insists on taking the case further. Having acceded to every demand, what further accommodation could BA have made?
Similarly, with the case of nurse Shirley Chaplin who was suspended from her job for refusing to abide by uniform regulations and take off a necklace that happened to have a cross on it.
If you depend on newspaper reports for your information, it seems cut and dried – a clear case of discrimination. But if you take the trouble to dig a little deeper and read the whole story (including the details that the Mail and Telegraph conveniently left out) you will see that the health authority for which Mrs Chaplin worked had said that there was a risk that if nurses wore dangling jewellery, it could pose a threat to health and safety. It didn’t matter if it was a cross or a lucky pixie that was attached to the chain, the result would be the same if a patient grabbed it and refused to let go.
The health authority asked her, as a compromise, to wear the cross pinned to her uniform as a broach. But not our Shirley – oh no, she wanted a confrontation. And very soon she was being paraded in the press as the latest victim of religious persecution.
When her case came to an employment tribunal it was thrown out in its entirety. There had been no discrimination, direct or indirect. There had been no banning of crosses, only dangling jewellery. But you’d never know that from reading about it in the papers.
The health authority had tried to find a “reasonable accommodation” but Shirley was fighting for something bigger – a privilege for Christians to do as they please at work.
Also on the list forEuropeis the case of Lillian Ladele, the registrar in Islington who refused to carry out civil partnership ceremonies because she said they were against her religion. Ms Ladele — a public servant — was refusing to provide the service she was employed to provide to the whole of the community.
It was argued that she should have been given an exemption and her colleagues assigned to do civil partnerships, thereby avoiding conflict.
If that had been done then the principle would be established that it is OK to deny services to gay people because you don’t like them. Ms Ladele said it was because of her religious conscience, but it seems like a very selective conscience when you consider that she raised no objection to re-marrying divorcees or those who had become pregnant while unmarried – indeed, she had been in that situation herself.
Gary McFarlane, the counsellor for Avon Relate who refused to offer his services to gay couples — clearly contradicting the organisation’s equal opportunities policy which he had signed up to abide by — is another case in point. How do you accommodate such obdurate bigotry without totally compromising the rights of other people?
None of these cases has any merit. They have been repeatedly thrown out of English courts or tribunals. And yet the Equality and Human Rights Commission intends to intervene to say that the courts have interpreted the law too narrowly! The very organisation that should be supporting the judicial decisions, that were made on rational grounds, in full possession of the facts, is trying to undermine them.
Naturally the gay community, seeing itself on the front line, was alarmed at the possible implications of all this for their hard won rights. Stonewall, the gay rights organisation, put out a statement requesting more reasoning as to why the EHRC intended to do this. The NSS also issued a statement and spoke on Radio 5 Live and LBC.
The EHRC then issued a further “clarifying statement” about what they were doing. Unfortunately, it just made things worse.
It was in a question and answer format:
Q. Why did the Commission make applications to intervene in these four cases?
These four cases were already before European Court of Human Rights (ECtHR) before the Commission considered intervening and it is our expectation that all four are highly likely to be heard together because they involve the same legal question.
Commissioners on our Regulatory Committee took the view that, given our role as the National Human Rights Institution and equality regulator, it was not appropriate for these important cases to be heard without our input into the complex equality and human rights issues, including to ensure the principle of ‘reasonable accommodation’ is considered by the court.
We recognise that our stakeholders have important practical experience of how these issues affect the workplace and we intend to seek the views of our stakeholders before making submissions to the ECtHR . We will therefore be contacting our stakeholders as soon as we receive notification from the Court that our intervention is permitted for their views in the anticipated 3 week period during which we prepare our submissions.
Q. Who is the Commission supporting?
The Court does not permit interventions to support one party or to comment on the facts. In our role as an intervener in existing legal proceedings, we do not support either party in a case but simply seek to aid the court with the benefit of the Commission’s policy input and interpretation of the law.
The purpose of our intervention is to explain that the law should consider how it may give better respect for religious rights within the workplace than has hitherto been the case, without diminishing the rights of others. We want to change the view that there needs to be an either/or situation. The spotlight and focus is placed too frequently on conflict in place of dialogue that could help identify other acceptable workable solutions.
The accommodation of rights is not a zero sum equation whereby one right cancels out or trumps another. We believe that if the law and practice were considered more widely, then in many situations there would be scope for diverse rights to be respected.
Our view is that careful, sensitive and balanced treatment and consideration is discouraged by the approach taken by the courts to date. In turn, this hinders the development and dissemination of better practice amongst those with duties. We believe that where possible ways should be found within the law of promoting the resolution of disputes at an early stage, without protracted, costly, complex legal proceedings that irretrievably damage relations between the parties.
Q. Does this intervention reflect a new approach to the Commission’s work to ensure equality and prevent discrimination on grounds of sexual orientation?
Certainly not. We do not and will not licence discrimination and we continue to believe in the importance of taking action to eliminate it. For example, we will continue to support the appeal to the Court of Appeal to defend the rights of the gay couple who were not allowed to share a double room at a hotel on behalf of civil partners Martyn Hall and Steve Preddy.
There is not — and cannot be — any change in the Commission’s role as the NHRI and equality regulator with responsibility for preventing discrimination against people on grounds of sexual orientation, a responsibility that we aspire to fulfil to the best of our ability.
We would like to reassure our stakeholders that under no circumstances would the Commission condone or permit the refusal of public services to lesbian or gay people.
This “clarification” does nothing to allay the fears of those who see their own rights about to be sacrificed on the altar of religious demands. And if theEuropean Courtupholds this appeal, it will have ramifications for the whole of Europe. Religion will have taken one more step to dominating and dictating our shared culture.
The EHRC and Trevor Phillips have made a serious mistake with this, and we call on them to withdraw this intervention application without delay.