The Equality and Human Rights Commission (“EHRC”) has recently exercised its statutory “obligation” (provided under the Equality Act 2006) to intervene in two cases going before the European Court of Human Rights, due to what they perceive is an increasingly “narrow” interpretation by the courts towards religion and belief discrimination claims.
The EHRC is obliged to “....institute or intervene in legal proceedings, whether for judicial review or otherwise, if it appears to the Commission that the proceedings are relevant to a matter in connection with which the Commission has a function.”
The EHRC believes that the courts have “set the bar too high” for someone to prove that they have been discriminated against on the grounds of their religion and belief and is concerned that the case law both from the UK and European courts is “confusing and contradictory.”
In relation to the particular interventions, John Wadham, Legal Group Director says:
“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.”
Further, Mr. Wadham seeks to make an analogy with disability discrimination (and, in particular, the duty to make reasonable adjustments) and suggests that “a similar concept could be adopted to allow someone to manifest their religious beliefs” or the concept of “reasonable accommodation.”
An intervention of this nature by the EHRC is unusual. Therefore, it is potentially significant, particularly for employers.
The EHRC is tasked (amongst other things) with eliminating discrimination and, therefore, if the principle of “reasonable accommodation” is successfully adopted by the courts, this could have a significant impact on employers in the workplace when seeking to balance an employee’s rights to religious freedom and its business needs.
If you have any comments or queries please do not hesitate to contact Joanne Holborn, Adrian Maitra or Tom Scaife on 01228 552600. Alternatively, email one of the team at HR@baineswilson.co.uk.
15 July 2011