NEW guidance to help
employers avoid claims of religious discrimination has been issued
by the Equalities and Human Rights Commission (EHRC), after last
month's judgment from the European Court of Human Rights in
Strasbourg in the cases of Nadia Eweida, Shirley Chaplin, Lillian
Ladele, and Gary McFarlane (
News, 18 January;
Comment, 25 January).
But lawyers and academics
who specialise in this field have questioned whether the guidance
accurately reflects the Strasbourg judgment.
The EHRC says that a
protected belief "should be serious, genuinely and sincerely held,
and worthy of respect in a democratic society. It should also be
compatible with human dignity and should not conflict with the
fundamental rights of others."
Neil Addison, a barrister
who specialises in discrimination law, said that there was nothing
in the Strasbourg judgment which said that the right to manifest
belief should not conflict with other rights. "It becomes a
balancing exercise, and that is the big thing that they are
missing. Where they say it 'should not conflict', they are
Writing on the blog lawandreligionuk.com, Frank Cranmer, a Fellow
of St Chad's College, Durham, and a Research Fellow at Cardiff Law
School, said: "There is something of a question mark over the
EHRC's apparent assumption that whenever Article 9 rights conflict
with other Convention rights, they will always have to go to the
bottom of the heap."
Elsewhere in the
guidance, in a section about employees who seek to opt out of some
duties because of a conscientious objection, the EHRC says: "The
law is clear that when someone is providing a public service, they
cannot, because of their religion or belief, discriminate
unlawfully against customers or service users."
Mr Cranmer commented:
"The employee is merely the employer's servant: if the employer
manages successfully to organise a public service in a way that
both allows certain employees not to do things contrary to their
religious or philosophical beliefs and provides a seamless service
to customers, then in what way is that illegal?"
Mr Addison said: "The
European Court said that a lot of these things are left up to the
discretion of employers; and yet the Commission are not emphasising
the discretion: they are emphasising what you can't do. Instead of
saying to employers 'you can accommodate this' or 'you have a
choice,' they are almost saying that public-sector employers do not
have a choice."
The EHRC said that its lawyer who wrote the guidance was
unavailable for interview, as he was "snowed under", but a
spokesman said: "Everything in that guidance is based on the law
and case law. It is the Commission's belief that, by following the
guidance, an employer is more likely to comply with the
legislation, and, if they fail to comply, they are more likely to