Discrimination Law and Religion Manifest - Case Study Example

Question In general the courts, particularly the European Court of Human Rights interprets Article 9 of the European Convention on Human Rights (ECHR) as conferring an absolute right to freedom of expression though and conscience.1 The right to manifest one’s religion under Article 9 has been interpreted and applied by the courts to be a “qualified right”2 in that the manifestation is required to be “in worship, teaching, practice and observance”.3 Other limitations on the right to manifest one’s religion are also drawn from Article 9(2) which confers upon the state the right to limit the right to manifest one’s religion on three specific grounds. Those grounds are first, the restriction is prescribed by law. Secondly it is necessary in a democratic society and thirdly, it has a legitimate aim.4 The issue of religious dress as a form of manifestation of one’s religion under the Article 9 of the ECHR has been the subject of much controversy.5 In instances where state laws and state-run institutions seek to restrict religious dress arguments justifying religious dress are typically built around a number of assumptions. One common assumption is that the state is entitled to promote secularism or more specifically that state-run institutions do not reflect any specific religious belief. Another common argument is that religious dress in certain circumstances can be aligned with proselytism in the sense that it might put pressure on others of the same religious sect who do not wish to participate in religious dress. Another argument centers around religious dress codes that codify gender inequality and it is argued that permitting such religious dress is contrary to gender equality. In many cases the European Court of Human Rights has ruled in favour of the restrictions on religious dress.6 ` In a typical case the European Court of Human Rights begins by emphasizing the significance of religious freedom.7 This approach follows from the case of Kokkinakis v Greece where the court stressed that: Freedom of thought, conscience and religion is one of the foundations of a democratic society within the meaning of the Convention.8 Once the European Court of Human Rights have stressed the significance of religious freedom, it will go on to determine whether or not that right has been transgressed and thereafter inquires into whether or not the limitations or restrictions imposed by the state were justified under Article 9(2).9 In this vein the European Court of Justice ruled in Karaduman v Turkey [1993] D&R 74 that the student who had been denied the right to a Muslim headscarf had been subjected to a justifiable restriction on the manifestation of her religion. The court was of the opinion that once the student decided to pursue a higher education at a secular university, that student had submitted to the university rules and regulations so that the prohibition against religious dress could not amount to an interference with her Article 9(1) freedom of conscience.10 Theoretically, the freedom to manifest one’s religion can only be restricted by virtue of constraints that are prescribed by law and that are necessary within democratic societies with respect to public safety, the protection of public order, morals or health or to protect the fundamental rights and liberties of others.11 Article 9(2)’s exceptions however are different from the proviso’s contained in Articles 8(2), 10(2) and 11(2). Article 9(2) provides a small list of exceptions while the other Articles refer to the “prevention of disorder”.12 In Case Engel and Others A/22 [1976] the European Court of Human Rights held that in terms of references to public order, the term refers to “the order that must prevail within the confines of a special social group.”13 Drawing on this interpretation of Article 9(2) provides the courts with the authority for ruling that restrictions on religious dress within specific state-run institutions can be justified on the grounds that such restrictions are necessary for the protection of public order within the confines of a special social group. The ruling in Campbell and Cosans v The United Kingdom [1982] EHRR 293 demonstrates the manner in which religious dress can be constrained within the qualified right to manifest one’s religion. In this case the court the Article 9 right to free religion would only be protected in circumstances where it related to a worldview comprised of “a certain level of cogency, serious reflection and importance”.14 Moreover, to successfully claim an infringement of the right to manifest one’s religion, the manifestation is required to actually manifest one’s religion rather than be motivated by the religion or belief.15 The UK’s House of Lords essentially endorsed this view in R v Secretary o f State for Education and Employment and others ex parte Williamson and others [2005] UKHL 15. The House of Lords ruled that not every manifestation of one’s religion will fall to be protected under Article 9 of the European Convention on Human Rights.16 The Case of Leyla Sahin v Turkey [2005] which directly addressed the issue of religious dress in the context of Article 9’s manifestation of one’s religion sparked considerable controversy. In this case, the applicant attended Bursa University in Turkey for four years and then enrolled in Medicine at Istanbul University in 1998. In 1998 Istanbul’s Vice Chancellor distributed a circular that forbid students with beards and the Islamic headscarf access to lectures. The circular was based on a Turkish statute. In March 1998 the applicant was refuse entry to a lecture as a result of the circular and the fact that she wore the forbidden headscarf. She was also refused registration with the orthopaedic traumatology because she was wearing a headscarf. The applicant was subsequently refused entry to another lecture in April 1998 and an examination in June 1998.17 The applicant was issued a warning for breaching university rules and was subsequently suspended for participating in an unauthorized assembly protesting the University rules. Although there were disciplinary proceedings against the applicant and she was penalized accordingly, the penalties were reversed by an amnesty statute. Nevertheless the applicant brought an action in which she claimed that the prohibition of the headscarf unfairly forced students to choose education over religion and constituted discrimination on religious grounds.18 The European Court of Human Rights ruled that the interference was prescribed by law and that the applicant would have known in advance that the wearing of the headscarf would result in denial of admission to lectures if she continued to wear the headscarf. Moreover, the court ruled that the Turkish statute was necessary for the protection of public order because of the thin line between the state and religion in a nation that was determined to be secular. Ultimately, the European Court of Human Rights sided with the university.19 AsTalvikki Hoopes argued the judgment of the European Court of Human Rights in the Leyla Sahin case illustrates the extent to which the manifestation of one’s religion is constrained in its interpretation and application of Article 9 of the European Convention on Human Rights.20 Saktanber and Corbacioglu also argue that by ruling as it did, the European Court of Human Rights: Endorsed the national authorities’ view of the headscarf as antagonistic to both secularism and gender equality.21 The UK’s House of Lords took a vastly similar position in the case of R (Begum) v Governors of Denbigh High School [2006] UKHL 15. In this case a 16 year old female pupil at Benbigh School in Bedfordshire after two years of complying with the school’s uniform code made demands along with her brother and another male pupil that they wear a long coat know as a jilbab. She argued that the shalwar kameez uniform that she wore was inconsistent with the Islamic dress code. The school argued that the uniform code was necessary for promoting a community of unity among the student body. Moreover, the 16 year old was being influenced by her brother, a radical Islamist supporter and that if she was permitted to wear the Jilbab, other students would feel pressured to wear the more restrictive Islamic dress. The 16 year old applied for judicial review on the grounds that her Article 9 freedom of religion was violated by the school.22 The High Court sided with the school but the Court of Appeal accepted the pupil’s complaint. The school appealed to the Judicial Committee of the House of Lords. While holding that the right to freedom of religion was an absolute right, the House of Lords ruled that in this case the restraints against manifestation of one’s religion was justifiable particularly for the protection of the rights and freedoms of other female pupils in the same school who would not want feel pressured into wearing the restrictive clothing. The House of Lords also ruled that the uniform policy which was for the good of all students was proportionate to the 16 year old student. 23 The position taken by the European Court of Human Rights is ultimately that religious freedom is “one of the foundations of a democratic society” pursuant to the ECHR.24 However, the State takes on the role of “the neutral and impartial organizer of the exercise of various religions, faiths and beliefs.”25 Moreover, the courts have developed what has come to be known as the Specific Situation Rule.26 The Specific Situation Rule takes the position that the individual’s Article 9 right to freedom of religion may be restricted by specific situations. The rule itself is not absolute but will typically apply in situations where the individual voluntarily subscribes to particular situations which will predictably constrain the right to manifest one’s religion. Ultimately, in applying the Specific Situation Rule the Courts applying the ECHR’s Article 9 looks to the proportionality principle. This principle looks at striking a balance between the individual’s right and the interests of society.27 In short, the court, in looking at balancing these conflicting interests with respect to religious dress will look to see whether or not there was a reasonable expectation on the part of the claimant that they would be not be permitted to wear religious dress. The court would also look to ensure that the restriction was neutral and not specifically targeting one religion. The question is ultimately whether or not the claimant voluntarily entered into a situation in which religious dress was restricted and the restriction was justified and necessary to the extent that it comports with order as expected of a democratic society.28 The British Courts, have for the most part followed the European Court of Human Rights’ restrictive approach to the Article 9 right to manifest one’s religion with respect to religious dress. The UK Courts will more often than not justify restrictions of the right to religious dress in specific organizations by relying on the need to protect the individual rights and freedoms of others and for the containment of public order.29 Question 2 A. Alison Heathcoate Mills Ltd may be vicariously liable for the conduct of its male workers and its shift manager in respect of Alison, Belinda (provided she finally comes forward) and Edward. The statutory authority for Heathcoate’s vicarious liability is found in Section 32 of the Race Relation Act 197630 and Section 41 of the Sex Discrimination Act 1975.31 Vicarious liability is particularly important and firmly established in cases of harassment.32 It was held in Miles v Gilbank [2006] EWCA 543 by the Court of Appeal that a hairdresser’s saloon as well as the manager were jointly and severally liable for sexual discrimination. In this regard the manager’s conduct had been characterized as “malicious” and “vicious”.33 The facts of this case indicate that the complainant, who had become pregnant while employed as a stylist trainer by the defendant saloon, had been the “object of unsympathetic remarks” as well as discriminatory treatment as a result of her pregnancy.34 Based on this ruling, the shift manager’s remarks relative to Edward, the worker’s comments relative to Alison and the sexual advances made to Belinda can all be regarded as unlawful sexual discrimination for which the workers, the shift manager and Heathcoate can be jointly and severally liable. The only means by which Heathcoate can escape liability for the malfeasance of its workers and shift manager would be to prove that it had taken reasonable steps to prevent the sexual discrimination.35 Unfortunately, on the facts of the case it would appear that the harassment and sexual discrimination went on without Heathcoate taking any steps to avert the shift manager’s or the other worker’s conduct. Moreover, Heathcoate will not be able to claim ignorance of the fact that the sexual harassment/direct discrimination took place. The key to liability for Heathcoate as the employer is the fact that the discriminatory conduct took place in the course of employment.36 The case law has developed to such an extent that any form of sexual harassment amounts to direct discrimination.37 Moreover, the Employment Equality (Sex Discrimination) Regulations 2005 implemented a new Section 4A into the Sex Discrimination Act 1975. Based on Section 4A, a woman is subjected to sexual harassment when she is the subject of “unwanted conduct that has the purpose or effect” of “violating her dignity” or “creating an intimidating, hostile, degrading, humiliating or offensive environment for her”.38 This is certainly the case for Alison who has been subjected to disparaging comments by workers which tend to belittle her or degrade her on the grounds of gender. Sex discrimination is also established where the subject is the object of “unwanted verbal, or non-verbal or physical conduct of a sexual nature that has the purpose or effect” or “violating” the subject’s dignity, or creating an “intimidating, hostile, degrading, humiliating or offensive environment” or “on the ground” that the subject rejected or submitted to “unwanted conduct” and is treated “less favorably” than the subject would have been treated had “she not rejected, or submitted to, the conduct”.39 Belinda, if she should come forward would certainly have a claim against Heathcoate under Section 4A of the Sex Discrimination Act 1975. In addition both Alison and Belinda can further claim harassment by virtue of Section 4A(2) which provides that in circumstances described in Section 4A, the claimant perceives that she has been harassed.40 Edward has a similar claim on the grounds of discriminatory treatment as a result of his sexual orientation.41 Each of the potential complainants may also utilize the Protection From Harassment Act 1997. In Majrowski v Guy’s and St. Thomas’s NHS Trust [2006] UKHL 34, a gay employee lodged a claim that his department’s manager had intimidated him as a result of homophobia. The employer argued that the 1997 Act was specifically aimed at preventing stalking and could not be applied to the workplace. The House of Lords unanimously rejected this argument and held that Parliament obviously intended to create a new wrong for which the employer could be vicariously liable.42 The facts of this case are very similar to Edward’s experience and it is quite certain that Edward at least could make a successful claim for harassment under the 1997 Act if he chooses to do so. In all the circumstances and in light of the authorities it is very likely that Heathcoate will be liable for damages for sex discrimination, sexual harassment and harassment generally against Alison, Brenda and Edward respectively. B. Farooq Heathcoates’ treatment of Farooq with respect to refusing to promote him while two while males with less experience and qualifications were promoted, can be interpreted as indirect discrimination because Farooq is being subjected to treatment that is different from other employees. A claim for indirect discrimination is substantiated when an employer implements a policy, practice, criterion or provision that has the effect of disadvantaging an individual or a group as opposed to other employees.43 Farooq’s case for indirect discrimination may also be corroborated by the lack of Muslim representation at Heathcoates’ middle management. Although Farooq’s claim may lie with religious discrimination rather than race since the term Muslim is associated with religion rather than race, religious discrimination is now covered in much the same way as race discrimination under the Religion or Belief Regulations 2003.44 In this regard, unlawful discrimination is comprised of both direct and indirect discrimination as well as victimization and harassment.45 The only defence available to Heathcoate will arise if the company can prove to the satisfaction of the court that the promotion of the two white males who were not as experienced as Farooq and not has qualified as he is was a proportionate course of conduct in response to a justified or legitimate objective and that there is: …an exception for genuine occupational requirement, which is doubtless of important to churches and other religions of faith communities.46 Even so, in Glasgow City Council v McNab EAT 0037/06 the Employment Appeal’s Tribunal confirmed a decision by the Employment Tribunal that an employer had discriminated against a non-Catholic who had been denied a post in a Catholic school where the desired appointee was required to be Catholic. The genuine occupational requirement exception had been construed in narrow terms so that employer was not at liberty to rely on it.47 It is therefore very unlikely that Heathcoate, a textile company would be able to avail itself of this very restrictive defence. It is difficult to imagine how the company can claim that it had a genuine occupational requirement exception that dictates that Farooq as a Muslim could not be promoted while two white men could be. Similarly the underrepresentation of Muslims in middle management cannot be said to fall under the genuine occupation exception. Nor is it possible for Heathcoate to successfully argue that the underrepresentation of Muslims in middle management or the failure to promote a qualified and experienced Farooq serves a legitimate policy aim. It is conceivable that Heathecoat may be able to argue that the two white males had been with the company much longer than Farooq and that accounts for their promotion over Farooq. However, given that they have less experience than Farooq, the inference is that Farooq had been with Heathecoat longer than the promoted white male employees. The burden of proof may be difficult in cases of discrimination claims and therefore the Human Resources Manager may be right in the claim that Farooq will not be able to prove discrimination. However, the courts have generally been sympathetic to the difficulty claimants have in proving discrimination.48 Moreover, Section 54A of the Race Relations Act 1976 as amended provides that where a claimant proves facts that the tribunal could reasonably conclude that the employer has indeed committed an unlawful act of discrimination or harassment, the burden of proof then shifts to the employer to prove that the conduct was not discriminatory.49 Moreover it was held in Igen Ltd. v Wong [2005] EWCA Civ 142 the Tribunal ought to first consider whether or not the claimant proved facts that in the absence of a reasonable explanation, could give rise to an inference that the employer committed unlawful discrimination. Then if the court is satisfied that the claimant did prove those facts, the tribunal must then ask whether or not the employer has proven that no unlawful discrimination took place.50 In this regard, Heathcoate ought to be more concerned about whether or not it will be able to meet the burden of proof. It is entirely likely that based on the facts, Farooq will be able to prove facts that could give rise to a reasonable inference that Heathcoate committed an unlawful act of discrimination. C. Gerry Gerry’s potential claim against Heathcoate falls under the Disability Discrimination Act 1995 which covers employment discrimination and other areas of discrimination on the grounds of disability.51Until the passage of the Disability Discrimination Act 1995 (Amendment) Regulations 2003, an employer would only be liable for disability discrimination if they employed more than 15 persons.52 Regardless, Heathcoate employs at least 250 persons and would be held obliged to comply with the provisions of the 1995 Act. The first question for consideration is whether or not Gerry is disabled. Section 1 of the Disability Discrimination Act 1995 provides that a person is disabled if he or she: Has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.53 There is no doubt that Gerry who has had a leg amputated meets the criteria delineate in Section 1 of the 1995 Act. It was held in Millar v Inland Revenue Commissioners [2005] IRLR 112 that where the effects of the injury is obvious no evidence of the long-term and adverse effect is necessary.54It therefore follows that Gerry may proceed with his claim without have to produce evidence of the extent of his disability. As a disabled employee, Gerry has a legitimate expectation that Heathcoate should make reasonable adjustments to accommodate his disability.55 By virtue of Section 4A of the Disability Discrimination Act 1995 (as amended) the employer is required to make reasonable adjustment to circumvent the effect of the disabled person being placed in a position that is disadvantageous in comparison to non-disable workers.56 In Prison Service v Beart [2003] EWCA Civ 119 the Court of Appeal provided a list of factors that the tribunal ought to take into account when determining whether the employer had satisfied the duty to make reasonable adjustments.57 Based on the Court of Appeals ruling in Prison Service the employment tribunal will first determine whether or not there is a duty to make adjustments. It will then look to see if any adjustments were made. Then the tribunal will determine whether or not the employer could have reasonably implemented measures. The tribunal will also take into account any mitigating factors such as the employer’s ability to make the adjustments in terms of its resources.58 The Prison Service case also included an additional factor which provided for a defence of justification. However, that factor has been removed by the amendments to the 1995 Act.59 Heathcoate did not take any steps at all to accommodate Gerry’s disability, and is clearly under a duty to do so. The fact that the company employs 250 employees suggests that it has substantial, if not adequate resources to make reasonable adjustments to accommodate Gerry. It was held in Archibald v Fife Country Council [2004] UKHL 32 that the employer had a duty to make reasonable adjustments for an employee who had been unable to perform her duties as a roadsweeper as a result of injuries emanating from minor surgery. The duty arose because the employee faced the risk of dismissal, a risk that would not have confronted a non-disabled employee. Although the employer had investigated transferring the employee to another job, the House of Lords ruled that it was insufficient to discharge the duty to make reasonable adjustments as it only provided her with an opportunity to participate in what was characterized as “competitive interviews”.60 This case is directly applicable to Gerry’s case, because not only did Heathcoate not investigate the possibility of transferring Gerry, they rejected the idea when he suggested it and told him he would have to participate in interviews for the job transfer. According to Archibald, this is insufficient to meet the reasonable adjustment criteria. Moreover, in Southampton City College v Randall [2006] IRLR 18 it was held that the employer had a duty to provide a new job for the lecturer who sustained voice damage as a result of having to shout over the noise coming from a machine shop.61 Gerry’s injury was not sustained at work as in the Southampton case. It is therefore not altogether certain that Heathcoate would be required to provide a new job for him. However, they are under at the very least attempt to transfer him elsewhere. The suggestion that he be transferred to the accounts’ department where there is a vacancy appears to be a reasonable suggestion. Heathcoate is therefore advised to take the suggestion and to at least transfer Gerry there on a provisional basis. If he is qualified for the job he could remain there. However if it turns out that he is not qualified, Heathcoate can find another position for him in the company. Bibliography Arai-Takahashi, Y. (2002) The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR. Intersential Publications. Archibald v Fife Country Council [2004] UKHL 32 Campbell and Cosans v The United Kingdom [1982] EHRR 293 Canniffe v East Riding of Yorkshire Council [2000] IRLR 555. Case Engel and Others A/22 [1976] Case of Leyla Sahin v Turkey (2005) Application No. 44774/98. Davis, H. (2007) Human Rights Directions. Oxford University Press. Dijk, P.; Godefridus, J.; Hoof, G.; van Hoof, A. and Heringa, A. (1998) Theory and Practice of the European Convention on Human Rights. Martinus Nijhoff Publishers. Dine, J. and Watt, B. (1995) “Sexual Harassment: Moving Away from Discrimination.” MLR Vol. 58, 343. Disability Discrimination Act 1995 Employment Equality (Sex Discrimination) Regulations 2005 European Convention on Human Rights Glasgow City Council v McNab EAT 0037/06. Grillo, R. (ed) Legal Practice and Cultural Diversity. Ashgate Publishing. Hill, M. and Sandverg, R. (2007) “Is Nothing Sacred? Clashing Symbols in a Secular World.” Public Law, 488-506. Holland , J.and Burnett, S. (2007) Employment Law 2008. Oxford University Press. Hoopes, T. (2006) “The Leyla Sahin v Turkey Case Before the European Court of Human Rights.” Chinese Journal of International law. Vol. 5(3): 719-722. Karaduman v Turkey [1993] D&R 74 Kokkinakis v Greece [1993] ECHR 20. MacDonald, L. (2005) Equality, Diversity and Discrimination. CIPD Publishing. Majrowski v Guy’s and St. Thomas’s NHS Trust [2006] UKHL 34 Miles v Gilbank [2006] EWCA 543 Millar v Inland Revenue Commissioners [2005] IRLR 112 Prison Service v Beart [2003] EWCA Civ 119 Protection From Harassment Act 1997. Race Relation Act 1976. Refah Partsi v Turkey [203] 36 EHRR 1. Religion or Belief Regulations 2003. R (Begum) v Governors of Denbigh High School [2006] UKHL 15. R v Secretary o f State for Education and Employment and others ex parte Williamson and others [2005] UKHL 15. Saktanber, A. and Corbacioglu (2008) “Veiling and Headscarf-Skepticism in Turkey.” Social Politics: International Studies in Gender, State and Society Vol. 15(4): 514-538. Sandberg, R. (2009) “The Changing Position of Religious Minorities in English Law: The Legacy of Begum.” Cited in Grillo, R. (ed) Legal Practice and Cultural Diversity. Ashgate Publishing Ch. 14. Sex Discrimination Act 1975. Sexual Orientation Regulations 2003. Southampton City College v Randall [2006] IRLR 18. Stedman v United Kingdom [1997] 5 EHRLR 544. Strathclyde Regional Council v Porcelli [1986] ICR 564. Igen Ltd. v Wong [2005] EWCA Civ 142 Read More