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New advice on rights cases

22 February 2013

PA

Holding on: Shirley Chaplin, in London last month, after losing her case at the European Court of Human Rights

Holding on: Shirley Chaplin, in London last month, after losing her case at the European Court of Human Rights

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 completely wrong."

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 be non-compliant."

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