The Basis of Albert Smiths Complaint - Essay Example

The basis of Albert Smith’s complaint and his attorney’s notification to Mercury Ltd. is founded on principles of anti-discrimination laws on the grounds of Smith’s religious beliefs. Whether or not the complaint is well founded will depend on the application and interpretation of the current law and legal precedents. By virtue of a directive issued by the European Commission on November 27th, 2000 discrimination on the grounds of religion within the labour industry is unlawful The directive provides that ‘any direct or indirect discrimination based on religion or belief, disability, age or sexual orientation as regards the areas covered by this Directive should be prohibited throughout the Community.’1 Following this directive, The Employment Equality (Religion or Belief) Regulations 2003 came into effect on December 2, 2003. Section 2 of the Regulations, define religion in very broad terms as ‘"religion or belief" means any religion, religious belief, or similar philosophical belief.’2 Section 44 of the Equality Act 2006 defines religion or belief in very similar terms.3 The 2003 Regulations are not unlike the legislative provisions for the prevention of discrimination on the grounds of sex and race. In other words discrimination can be either direct or indirect. In order to properly advise Mr. David Williams it will be necessary to look at previous case law and the application of indirect and direct discrimination by reference to established law in the area of sex and race discrimination. First it is important to note that Section 3(1) of the 2003 Regulations provide: ‘For the purposes of these Regulations, a person ("A") discriminates against another person ("B") if -  (a) on grounds of religion or belief, A treats B less favourably than he treats or would treat other persons; or (b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same religion or belief as B, but -  (i) which puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons. (ii) which puts B at that disadvantage, and (iii) which A cannot show to be a proportionate means of achieving a legitimate aim.’4 The Regulations are applicable to areas of employment that generally cover recruitment terms, promotions, transfers, dismissals and training. Direct discrimination infers treatment of an employee less favourably than the treatment of others on the basis of that person’s religion or belief. Indirect discrimination will apply to situations in which a criteria, practice or provision is adapted in the absence of a good and/or fair reason and disadvantages a person of a certain religion or belief.5 ;Indirect discrimination’ is by and large concerned, with the application of a similar set of rules to a similar group despite the fact that the rules will affect the members of the group in vastly different ways. The European Court of Justice has been rather clear regarding its position on discrimination of any kind as enshrined in Article 9 of the European Convention on Human Rights and Freedoms. Religious freedom has been found to be no less important than any other right. In Kokkinakis v Greece it was held that ‘as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a "democratic society" within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and of their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism is dissociable from a democratic society, which has been dearly won over the centuries, depends on it.’6 The facts of this case is somewhat aligned to the facts of the case Copsey v Clay in which the European Union dealt with the question of discrimination of the basis of region. The European Court of Justice was required to determine the impact of Article 9 of the European Convention on Human Rights in the context of ‘a Christian employee, whose sincerity is not in question, seeking to manifest his religious beliefs by observing Sunday.’7 In the Copsey case, the employer refused to work the Sunday shift as well on the basis of his religious belief that Sunday was a day of rest. Like Williams in the current case for discussion, the employer offered the employee alternative positions within the company to accommodate him since he could not or would not comply with the new shift requirements to work Sundays. Like Smith, this employee was not interested. Another striking similarity is the absence of sympathetic reaction to the employees in both scenarios. The court held in Copsey’s case that if anyone had acted unfairly, it was the employee and certainly not the employer. Lord Justice Neuberger said that the employer had ‘done everything they reasonably could have done or could have been expected to do, in the particular circumstances of the case, to accommodate Mr. Copsey’s desire not to work on Sundays. I do not think that it is inaccurate to say that, if the Employment Tribunal thought anyone had acted unreasonably in this case, it was Mr. Copsey. These were, as I have said, clear findings which were open to the Tribunal to make, and which justified their conclusion.’8 Since the substantive similarities between Copsey’s case and Williams’ case are so strong, it is a very good chance that Mercury Ltd. will be found to have acted fairly in all the circumstances. Indeed, in the spirit of the Copsey decision, one might be willing to argue that Mr. Smith’s actions were unfair and unreasonable in all the circumstances. One case decided early on and upheld by the House of Lords, although not relative to employment does reflect the courts general position with regards to religious beliefs and policies that might directly or indirectly discriminate against them. The case was Shabina  Begum  v  Denbigh  High  School. In this case a pupil of Muslim religion was desirous of wearing a Jilbab during school hours despite the fact the school rules only permitted the wearing of a Shalwar Kameeze. The judge looked into the matter carefully and decided that the school had taken special care to ensure that its uniform dress code did not offend the policies and beliefs. With regard to that finding the court ruled that the school had not acted improperly and had acted reasonably in all the circumstances. 9 The House of Lords indorsed this approach and added that ‘the most that can be said is that the way in which the school approached the problem may help to persuade a judge that its answer fell within the area of judgment accorded to it by the law.’10 The importance of this finding by the House of Lords is relevant to Williams’ case. The manner in which he and Mercury Ltd. went about trying to accommodate Smith was not only reasonable but admirable in all the circumstances of the case. It is difficult to imagine what else the company could have done without damaging its own interests. For instance, had the company compensated Smith in the same manner as it had compensated employees who worked the extra hours that could have had the potential to create animosity and discord among the staff members not only toward Smith himself, but toward Mercury Ltd. It would have been tantamount to reverse discrimination, On the other hand, if Mercury had cut out the Sunday shifts so as to accommodate Smith, it would have created the same hostilities among staff members, particularly those who were ready, willing and able to work on Sundays. Moreover, Mercury Ltd would have suffered financial hardship by taking such drastic steps to accommodate one staff member. The general tone of the authorities is that when looking into accusations of discrimination on the basis of religion, courts will be required to conduct a balancing act. They will attempt to balance the right of the complainant to his freedom of religion against the interest of the employer, financial concerns and the rights of the other employees. There is no doubt that Williams and Mercury were sympathetic and accommodating and did not act unfairly or unreasonably. In order to safeguard against future claims it is a good idea for Mercury Ltd to circulate among the government’s handbook on guidelines for RELIGION OR BELIEF AND THE WORKPLACE.11 The guidelines sets out in simple and clear form the principles and standards that are required for the protection of religious beliefs as well as the limits and restrictions for enforcement of these religious beliefs when they obviously unfairly compromise a company’s financial wellbeing. Bibliography Copsey v Clay 2005] EWCA Civ 932 http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2005/932.html&query=copsey+v+clay&method=all Viewed December 5, 2006 COUNCIL DIRECTIVE 2000/78/EC of 27 November 2000 Official Journal of the European Communities. 2.12.2000 L 303/16 Equality Act 2006 GUIDANCE:RELIGION OR BELIEF AND THE WORKPLACE http://www.religionlaw.co.uk/civilregs.pdf Viewed December 5, 2006 Kokkinakis v Greece (1993) 17 EHHR 397 Mandla v Dowell Lee [1983] 2. AC 548 Religious  Civil  &  Discrimination  Law http://www.religionlaw.co.uk/civiltext.htm Viewed December 5, 2006 R (on the application of Begum (by her litigation friend, Rahman)) (Respondent) v. Headteacher and Governors of Denbigh High School (Appellants) [2006] UKHL 15 http://www.bailii.org/uk/cases/UKHL/2006/15.html Viewed December 5, 2006 Shabina  Begum  v  Denbigh  High  School [2004] EWHC 1389 http://www.bailii.org/ew/cases/EWHC/Admin/2004/1389.html Viewed December 5, 2006 The Employment Equality (Religion or Belief) Regulations 2003 http://www.opsi.gov.uk/si/si2003/20031660.htm Viewed December 5, 2006 Read More