Monday, 15 August 2011

Equality Act applied in abortion case

Neil Addison reports on his Religion Law Blog about a new use of the Religion and Belief provisions in the Equality Act 2010.

See Abortion and the Equality Act.

…From the facts it was clear that the Hospital had not recognised or accepted that the Nurses had a legal right to refuse to participate. EMA has been held by the High Court, in the BPAS case mentioned, to be an Abortion procedure under the Abortion Act 1967 and as such the Nurses had an absolute right to refuse to participate under the conscientious objection provisions of s4 of the Abortion Act.

Abortion Act 1967 - 4. Conscientious objection to participation in treatment
(1) Subject to sub-section (2) of this section, no person shall be under any duty whether by contract or by any statutory or other legal requirement to participate in any treatment authorised by this Act to which he has a conscientious objection

TMLC wrote to the hospital stating that the Nurses were refusing to work in the Clinic and quoting their rights under s4 Abortion Act. The letter also stated that their belief in the sanctity of life from conception onwards was a philosophical belief protected under the Equality Act and therefore any attempt to pressure them into participating in the Abortion Clinic or to suggest that their refusal would affect their career would be illegal under the Equality Act 2010.

This particular interpretation of the Equality Act has never, to my knowledge, been argued before however since the Courts have accepted that the philosophical belief in Global warming is protected under Equality legislation, see Grainger Plc & Ors v. Nicholson [2009] UKEAT 0219_09_0311 I could see no reason why belief that human life begins at conception should not be equally protected.

The reason for including the Equality Act in the letters to the Hospital was in order to provide the Nurses with additional protections. Section 4 of the Abortion Act though it is clear does not provide any enforcement mechanism and also does not protect a conscientious objector from being pressurised to participate in Abortion, held back in their career due to their pro-life belief or indeed not employed in the first place. However using the Equality Act as well as s4 of the Abortion Act meant that the Nurses would be able to claim Harassment, Victimisation or Discrimination in an Employment Tribunal if they were put under pressure at work because of their reliance on the conscientious objection protection in s4…

Gavin Drake has some further comments on this.

Posted by Simon Sarmiento on Monday, 15 August 2011 at 10:07am BST | TrackBack
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Categorised as: equality legislation
Comments

I do believe that the issue of abortion, and the matter of who might be excused from implementing its execution, is a very important matter that has to take into account the nature of what is actually taking place and the morality of applying pressure on medical staff to take part in a procedure that may be seen to be in direct conflict with the Hypocratic Oath.

The process of assisting in the extinguishing of the life of a human foetus can be interpreted as participating in depriving it of the gift of life. If a person's objection to this act is sufficiently repugnant (based on reverence for the gift of life), then it would be unethical for that person to be subject to industrial or social action that can be seen as punishment for not participating in the procedure.

In my view, this matter is very different from other matters - such as the refusal to supply public services for homosexuals - that it requires a different treatment of those who conscientiously opt out of providing what might be considered to be the 'normal' public services in the course of their daily work.

I applaud the decision to allow nurses or doctors to decline to carry out a procedure that is seen to be contrary to their professional code of ethics. This does not mean to say that I, personally, feel that abortion in every situation is necessarily unethical; but rather that, in such a grave matter, personal conscience - when considering one's personal participation in a life-and-death circumstance - one's private conscience must be considered.

Posted by: Father Ron Smith on Monday, 15 August 2011 at 2:47pm BST

"one manager ask[ed]: “What would happen if we allowed all the Christian nurses to refuse?”

Surely this manager can't believe that all Christians are anti-choice re/would refuse to participate in a freely-chosen abortion?

Posted by: JCF on Monday, 15 August 2011 at 8:24pm BST

But this has nothing to do with Christianity or with exemptions from the law. It's precisely the opposite - the law states that anyone is allowed to opt out from participating in abortions.
That should be all there is to it.

Posted by: Erika Baker on Tuesday, 16 August 2011 at 7:04am BST
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