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21 July 2011

Equality and Human Rights Commission changes tack

Just days after the Evangelical Alliance met with senior executives at the Equality and Human Rights Commission (EHRC) it announced its intention to intervene in cases involving discrimination against Christians in the workplace at the European Court of Human Rights. This followed the Alliance's public criticism of the Commission's failure to support Christians in a statement responding to an interview by its chairman Trevor Phillips.  

In regular meetings over the last few years the Alliance has urged the Commission to press for greater flexibility in interpretation of equalities legislation as it affects people of faith, and in particular to consider introduction of the principle of 'reasonable accommodation' to ensure that space is given to everyone, especially when rights clash. This is a legal principle that has worked well in helping to accommodate particular needs of people relating to disability discrimination. 

The Alliance has also been outspoken in its demands for employment law to be clarified as it affects people of faith because the law is not well understood by employers and has led to many cases ending up in court which probably could and should have been dealt with more effectively outside the courts. 

Now the EHRC is agreeing that the courts have not done enough to protect Christians affected by judicial interpretation of equality laws which has in effect set the bar too high for Christians to prove discrimination. 

Stating that "judges have interpreted the law too narrowly in religion and belief discrimination claims", the EHRC says that it will intervene in four cases at the European Court of Human Rights specifically concerned with religious discrimination in the workplace. With regard to these cases the Court has requested the British government to state whether they consider the human rights of Christians are being dealt with fairly by the courts. One of these cases involves the Christian registrar Lillian Ladele who was threatened with dismissal by Islington Council for refusing to celebrate civil partnership ceremonies which were fundamentally at odds with her beliefs. The other cases concern two workers, Nadia Eweida and Shirley Chaplin, who were banned from wearing crosses, and a relationship counselor, Gary McFarlane, who was dismissed for refusing to provide sex advice to homosexual people. 

The Commission now states that the way human rights and equalities law has been interpreted by the courts is "insufficient to protect freedom of religion or belief" and that public expression of religion needs to be better accommodated. John Wadham, legal director at the Commission, said: "Our intervention in these cases would encourage judges to interpret the law more broadly and more clearly to the benefit of people who are religious and those who are not." 

The Alliance observed that this could appear as a very belated move by the Commission to ingratiate itself with the faith sector following much public criticism of its failure to stand up for Christians and members of other faith groups. However, while we clearly have to wait to see precisely how the Commission will intervene in practice, the Alliance has welcomed this as a first step in a brave new approach which hopefully promises to contribute in a significant way to redress the balance of fairness which has been stacked against religious people for too long. The Commission should be acknowledged for making a bold strategic decision and it is to be hoped that its interventions will help change the way such cases are resolved in the future to the benefit and fairness of all and towards reform of the law and the way it is interpreted.  

Unsurprisingly, the Commission has been strongly attacked by secularist groups and others for its stance. However it has responded by setting out that:   

The purpose of our intervention is to explain that the law should consider how it may give better respect for religious rights within the workplace than has hitherto been the case, without diminishing the rights of others. We want to change the view that there needs to be an either/or situation. The spotlight and focus is placed too frequently on conflict in place of dialogue that could help identify other acceptable workable solutions. The accommodation of rights is not a zero sum equation whereby one right cancels out or trumps another. We believe that if the law and practice were considered more widely, then in many situations there would be scope for diverse rights to be respected. Our view is that careful, sensitive and balanced treatment and consideration is discouraged by the approach taken by the courts to date.  In turn, this hinders the development and dissemination of better practice amongst those with duties. We believe that where possible ways should be found within the law of promoting the resolution of disputes at an early stage, without protracted, costly, complex legal proceedings that irretrievably damage relations between the parties.

This represents a significant change in approach from the Commission which has been widely criticised for its reluctance to adopt a positive stance towards faith groups and Christians in particular, and especially where a clash of rights has been involved. Indeed, the EHRC has opposed religious liberty cases brought by Christians such as guesthouse owners Peter and Hazelmary Bull and Eunice and Owen Johns, who were prevented from fostering. The Commission has also intervened against Catholic adoption agencies and opposed recent amendments in Parliament designed to protect freedom of speech as well as crucial exceptions for Christian employers in the Equality Bill. 

No freedom is absolute but there does need to be a level playing field where no one right can marginalise another. Christians are not seeking exceptional treatment but rather freedom and space legitimately to express their faith in the public square because the law says no one set of rights should take precedence. It is helpful that the EHRC at last seems to have recognised that Christians and others should not be forced to choose between their faith and their job and should not be coerced into becoming morally complicit in actions which fundamentally are at odds with their conscience. The Commission appears to recognise that interpretation of equalities law has not been proportionate as it is affecting Christians and that other approaches are preferable to conflict in the courts through the blunt instrument of the law. 

So the adoption of a commonsense and mutually respectful approach to conflict situations based for example on mediation is what the Commission has apparently agreed is necessary, if this can be done in a more structured way than hitherto. This would once again allow for tolerant and 'live and let live' social attitudes rather than a politically correct public environment which has created restriction, fear, confusion, hostility and intimidation, not least affecting people of faith. The concept of 'reasonable accommodation' in which employers adopt constructive and solution-oriented approaches to potential conflict situations seems a very appropriate step forward in a way that respects diverse views and allows space for all.