THINKING ANGLICANS

reports on European Court hearing of religious discrimination cases

Gavin Drake reports today for the Church Times Lawyer: No discrimination if employees can resign

CHRISTIANS cannot claim that they have suffered religious discrimination at work if they have the freedom to resign and look for another job, a British-government lawyer told the European Court of Human Rights this week.

James Eadie QC made his comments as he outlined the Government’s position in four cases: those of Nadia Eweida and Shirley Chaplin, who claim that they lost their jobs with British Airways (BA) and the Royal Devon and Exeter NHS Trust respectively, over their refusal to remove a cross or crucifix; Lillian Ladele, a registrar with the London Borough of Islington, who objected to being required to perform civil-partnership ceremonies; and Gary McFarlane, who was dismissed from his position as a counsellor with the Avon branch of Relate, after his supervisors said that his religious beliefs would prevent him offering psychosexual counselling to same-sex couples (News, 31 August)…

Earlier reports:

Mail Steve Doughty Christians ‘must choose between job or their faith’: Government lawyers claim at European court

Telegraph Bruno Waterfield Christians should ‘leave their beliefs at home or get another job’

Independent Terri Judd Christians fight for rights at work in European court

Christian Institute Govt lawyer: Christians should leave faith at home or resign (includes video link to Dinah Rose QC speaking on behalf of Ms Ladele)

An official video recording of the entire proceedings can be found here.

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Erika Baker
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Erika Baker

“CHRISTIANS cannot claim that they have suffered religious discrimination at work if they have the freedom to resign and look for another job, a British-government lawyer told the European Court of Human Rights this week.”

Although I don’t think the Christians people in question have a case, this statement is appalling!
That’s like saying that gay people aren’t being discriminated against in the church because they are free to leave and join another denomination!

The question is not whether other organisation would discriminate less or be more accommodating, but whether the particular organisation has carefully followed the laws of the land!

Jonathan Jennings
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Jonathan Jennings

Exactly so, Erika. It’s the phrase ‘leave their faith at home’ that is the most chilling thing I think I’ve ever heard cited from a UK government official.

I’m trying to find whether that’s a direct quote or a headline summary ..

Martin Reynolds
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Martin Reynolds

“(Gays) are free to leave and join another denomination!”

Well, actually Erica a senior English bishop once said this to me, and I don’t think I am alone in being the recipient of this kind of advice.

I hear it said too about those who are not in favour of female ordination …….

In fact, it comes up rather a lot as I think about it!

Erika Baker
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Erika Baker

Martin,
I agree that it comes up rather a lot!
But I might have said once or twice that I don’t agree with the church’s stand on these isues and it’s ridiculous logic for avoiding treating all people equal.

The same argument gets no better if it is used by the government.

If the cases before the ECHR are to be defeated (and I hope they will be), they have to be defeated on better grounds than this!

Craig Nelson
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Craig Nelson

As one may expect the reporting is a little exaggerated. It is not about discrimination – that is already outlawed. It is about the boundaries to the manifestation of religious belief in a workplace setting where the starting point is the existing ECHR framework that member states have a margin of appreciation on such matters that makes it more likely these cases will be turned down. If Parliament wants to pass a law saying there is an absolute right to religious symbols it can do so. Having that as part of ECHR jurisprudence would create havoc in some countries.

Bill Dilworth
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Bill Dilworth

It is bizarre that a government official would claim discrimination can’t exist if other employment is available. Would companies be permitted to fire Blacks if other companies would hire them? It’s also very strange to have the State making up the minds of believers as to the requirements of a given religion. Even the claim that wearing the cross isn’t a requirement for a given Christian because it’s not a scriptural commandment or teaching assumes that Christianity is monolithic in its allegiance to the Bible as the only source of authority and that the ability to interpret the Bible for… Read more »

Craig Nelson
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Craig Nelson

The state should be using this language in defending its case because that is the key point in the ECHR case law. I.e. that in employment specifically the manifestation of religious belief can be curtailed for example the Ladele case without infringing on religious freedom protected under the Convention (and that is all that’s being decided here – is Britain breaching the Convention?) largely because the employment relationship is freely entered into and could be changed for a different employer if one wanted to. That is to say one isn’t being obliged to work for your current employer by the… Read more »

Fr. Laurence Roberts
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Fr. Laurence Roberts

As a gay person, I would not wish to wake up in say, intensive care and find myself being treated by someone, who insensitively paraded their Christian religion at me. Nor would my Jewish or Muslim friends appreciate such an encounter with the crucifix.

Much of the comment here is misguided.

Don’t change job then -stay ! But do not expect to defy your code of practice, your ethics, the culture of your institution, – or undermine them and your line-manager.

That is not Godly.

Erika Baker
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Erika Baker

Bill, I was thinking about the Blacks issue too but thought it probably didn’t fit the criteria. The employers in question did not refuse to hire Christians because they are Christians and they bent over backwards to give them suitable employment or suitable options for visibly displaying their Christian symbols while at the same time ensuring that the service they provide to their customers is not compromised and that colleagues don’t have to pick up too many pieces. If there is any hostility at all it is to too much special pleading and too unreasonable demands in the name of… Read more »

Feria
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Feria

If these reports are really representative of what Mr. Eadie said, then they reveal a truly disgraceful attitude towards working people. Perhaps more interestingly, they also seem to miss a key point of law – because if employees suffering religious oppression in the workplace did resign, that would surely be the very definition of “constructive dismissal”. (That’s not a comment on whether any or all of the four applicants in the present case actually _did_ suffer religious oppression in the workplace. I have an opinion on that matter, of course, but since I’ve seen only the subset of the evidence… Read more »

Bill Dilworth
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Bill Dilworth

Craig, there are other ways to determine the issues involved than putting all religions and all varieties of a given religion into a “scriptural” straitjacket. Erika, I thought that the Black example didn’t fit after making the comment. One of the articles mentioned observant Jews, though, and I think that probably fits. As for the lapel pin, that case does seem odd, but it’s not the only case. Fr Ron, I must say that saying someone wearing a crucifix is “insensitively parading their Christianity at me” sounds not only jarring (Even letting on that one is a Christian is now… Read more »

David Shepherd
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Laurence,

If I woke up in intensive care, I’d first be thankful that the staff had used their combined skill to help me survive.

The fact that person wore a crucifix, a kippah, a turban, or a tattoo in homage to Led Zeppelin really wouldn’t matter as much as their ability to deliver outstanding medical attention.

The code of practice, ethics and culture of a medical institution should be aimed at ensuring the individuals involved in the delivery of healthcare do so impeccably, rather than removing their individuality.

Erika Baker
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Erika Baker

Bill, I think we need to be careful here. While we are turning this into a conversation about ethics and while to Americans it might even primarily be an issue of free speech, what the court is actually looking at is whether the employers in question have applied all the respective laws appropriately. And as far as we understand the laws of this country, employers do indeed have the right to impose conditions on their staff, especially where health and safety is concerned, or where everyone working for the public is required to provide the same service to all clients… Read more »

Erika Baker
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Erika Baker

Once again I find myself agreeing with David Shepherd. I do not feel threatened by displays of religious allegiance, although I do feel threatened by some individuals belonging to the respective religions. I would no longer wear a cross but I used to and I used to find it a helpful means of identifying other likeminded people. People who would not be embarrassed if, in difficult situations, I would speak of God and of prayer. People who would not ridicule me if I talked of praying for a situation. Especially in hospital that can be very comforting. I think many… Read more »

Craig Nelson
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Craig Nelson

Bill – in assessing if something is a requirement of a faith in a court process courts are going to have to have evidence before them. I don’t believe a scripture is the only place to look but in a religion that has scriptures it is a good starting place. Failing that I would be looking for some evidence such as a longstanding tradition and a degree of universality (at least within a subgroup) and evidence of authoritative teaching within that particular group. I don’t actually see any of that for cross wearing. The court just needs evidence to differentiate… Read more »

Bill Dilworth
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Bill Dilworth

Erika, I’m not questioning the fact that British law gives employers the right to impose conditions on employees. American law does as well. I was specifically pointing out the incongruous (to me) position of progressives taking the attitude that these rights are, well, *right.* It’s one of the few cases I can recall of progressives demanding the rules be scrupulously followed, rather than examining the justice of the rules. Employers used to have the right to demand that people work much longer hours under much worse conditions for inadequate wages, but progressives did not adopt the attitude that, “Well, those… Read more »

Erika Baker
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Erika Baker

Bill, I hope progressives would always accept that existing laws should be enforced and that they would then campaign to have those rules changed. Yes, there is civil disobedience but that’s a big thing and should not be undertaken lightly. But I agree that just because something is legally right it is not necessarily morally right. In these cases, though, I agree with the moral aspect too. If you are employed to provide a public service you cannot choose who you will serve. And while you might have a right to wear a cross you do not have the right… Read more »

David Shepherd
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It would be interesting to see how commenters would address the cases, if they were focused on the right to manifest one’s culture, rather than religion. For instance, would we demand the higher proof that a banned cultural artefact was endorsed in writing as a part of traditional attire? Would any of us describe any non-native wearing such clothing as parading their national identity. No, the rhetoric would change to ‘celebrating diversity’. I suspect that our tolerance of turbans, kippahs and burkas has more to do with the belief that to do so nurtures cultural diversity, than our respect for… Read more »

Bill Dilworth
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Bill Dilworth

“I hope progressives would always accept that existing laws should be enforced and that they would then campaign to have those rules changed.” Really? My home state had laws against sodomy. Before they were declared unconstitutional in 2003, I was unaware of any progressive desire to see them enforced. “In these cases, though, I agree with the moral aspect too.” And yet you give reasons for supporting every case *except* the BA employee and her small pendant. What’s the moral aspect in effacing the religious identity of BA employees? How would her wearing a small cross around her neck have… Read more »

Erika Baker
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Erika Baker

Bill, your example of not tolerating sodomy laws strikes me as a good case for civil disobedience. Not being allowed to wear a necklace in a hospital isn’t. The BA case is interesting, because they actually changed their policy afterwards, which strikes me as a successful outcome. But as a patient I would not want the NHS to change its policy about dangly necklaces. To give you just one example, when you have a small child with an immune deficiency on a ward and a paediatric nurse bends over him and he grabs her necklace, he can easily contract an… Read more »

Erika Baker
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Erika Baker

Bill, I keep thinking about what you are saying about the sex therapist. And I have two particular problems with your line of argument, although I have a lot of sympathy for your view. One is that we’re not talking about any possible reason for not doing any possible job but that some people are claiming an opt out purely for religious reasons. The general principle is that if you are arachnophobia you don’t work with spiders in a zoo and if you can’t cope with heights you don’t work on a high rise building site. There’s nothing wrong with… Read more »

Bill Dilworth
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Bill Dilworth

Erika, I absolutely agree with you regarding the NHS case. I have not read why she refused to wear the pin rather than the necklace – do we know why? I’m not sure about the registrar case, because I’m not exactly sure of the registrar’s role in the UK. I think that here they are simply front-line bureaucratic clerks who are there to provide government services, and you don’t have any right to exercise your own veto regarding services to groups of which you do not approve. If you’re able to claim an exemption from providing services for gay people… Read more »

Erika Baker
Guest
Erika Baker

Bill, I think we probably pretty much agree here. I had one extra thought earlier, and that is that it is of course perfectly possible for an employer and an employee to write anything they like into an employment contract. And it is also possible for someone to, say, apply for a job as a maintenance man but say at the interview that he struggles with heights, and the employer says, that’s ok, we have 3 other guys on the team, they can go up and sort out the roof when there’s a problem. I dare say that happens in… Read more »

Bill Dilworth
Guest
Bill Dilworth

Something just occurred to me regarding the cross necklace situation. I cannot imagine why it did not occur to me before, since I have some personal experience in the area: Eastern Orthodoxy places great stress on the continuous wearing of the individual’s baptismal cross. There’s even a Russian soldier, captured by Chechen fighters, who is honored as a modern martyr because his refusal to remove his cross led to his being beheaded. I had my cross stolen in a Navy barracks when I took it off before showering (in order not to damage the enameling); this earned me a royal… Read more »

Erika Baker
Guest
Erika Baker

Bill, I suppose something like that could be treated like a wedding ring, if a way could be found to wear it without it becoming a safety issue. The other thing that occurred to me was the comment that the nurse in question had always worn her cross on a necklace but that it had been hidden under her previous uniform and that it only became an issue once the uniform changed to a v-neck where it suddenly dangled. Whatever it was about, it does not appear to have been about visibility. And in the BA case, at least, it… Read more »

Bill Dilworth
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Bill Dilworth

Erika, no the Orthodox cross doesn’t have to be visible at all, normally. Ordinarily it’s worn under one’s clothing. I understand that under the Soviets some Christians carried their cross in their pockets in order to avoid detection, but I don’t know if that’s considered kosher or not. I think it’s a mistake to look at wearing a cross as making a faith statement, while regarding, say, wearing hijab as merely complying with the dictates of one’s religion. I suspect that making a statement is part of the reason for many Muslim women wearing hijab. It would be interesting to… Read more »

Erika Baker
Guest
Erika Baker

Bill,
again, yes to what you write.
With one exception. The Sikh not wearing a turban is endangering his own life.
The nurse dangling a cross that has not been disinfected in front of an immuno-compromised child is endangering the child.

And the Sikh cannot be given an alternative place to wear his turban, while the nurse was given alternatives.

Bill Dilworth
Guest
Bill Dilworth

Erika, I agree with you about the nurse. As I’ve written, I think she was offered a reasonable accomidation and turned it down. I really wish we knew why she found it unacceptable – its hard to think of a specifically religious reason for her to do so.

I was only comparing the hypothetical Sikh and the BA employee.