A QUESTION OF FAITH: RELIGION AND BELIEF IN EUROPE Equinet LWG 2011 Jayne Hardwick Moderator Equinet – Legal Working Group

Outline of the presentation 1.Why focus on religion and belief? 2.Legal framework 3.Extent of right to manifest religious belief – case law 4.Occupational requirements

Why focus on religion and belief? Controversial issues, highly present in Europe Relationship between ECHR and EU Equality Directives Interplay between freedom to manifest religious belief and other rights

General Framework Directive 2000/78/EC Protection against direct and indirect discrimination, victimisation and harassment on grounds of religion or belief in employment and vocational training. Includes exceptions for occupational requirements: - Genuine and determining occupational requirement - Churches or organisations with RB ethos

ECHR – Article 9(1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

ECHR – Article (2) Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of: - public safety, -for the protection of public order, -health or morals, -or for the protection of the rights and freedoms of others.

Snap shot of Case Law Extent of right to manifest religious belief and other fundamental rights

Extent of right to manifest religious belief: sexual orientation Ladele and others v UK (2013, ECrtHR): This case concerned whether a requirement to officiate at civil partnership ceremonies amounted to indirect discrimination/breach of Art 14. The court had to consider if the policy pursued a legitimate aims and was proportionate ECrtHR concluded that the LA’s aim to provide a non discriminatory service was legitimate and went on to consider whether the measures taken were proportionate. It noted that differences in treatment on grounds of sexual orientation can only be justified if there are particularly serious reasons.

Ladele v UK (cont’d) The court noted that the consequences for Ms Ladele were serious as she ultimately lost her job. However, the local authority’s policy was aimed at securing the rights of others protected under the Convention. The ECrtHR generally allows national authorities a wide margin of appreciation when it comes to striking a balance between competing Convention rights. The court concluded that the local authority and domestic courts had not exceeded the margin of appreciation available to them and therefore it cannot be said that there has been a violation of Art 14 read with Article 9.

Extent of right to manifest religious belief and rights of children HALDE Decision – youth leader case (France) - termnation justified to protect health and safety of children R v Secretary of State for Education and Employment ex parte Williamson (2005, House of Lord, UK) – ban on corporal punishment was ‘necessary in a democratic society …For the protection of the rights and freedoms of others …’. No breach of Art 9. Palau-Martinez Application number 64927/01 (2003, ECrtHR) - breach of Art 8 and 14 as domestic court had ruled on basis of general considerations not specific circumstances

Extent of right to manifest religious belief and gender equality -Visiting minister refuses to hold religious service with female minister - actions which violate other fundamental rights cannot be carried out in name of religious freedom (2010, Supreme Court, Finland) - Handshake case: application for Teaching Assistant Training Course – treatment not justified as there are other ways to greet respectfully (Opinion , Netherlands)

Occupational Requirements in the General Framework Directive

Occupational Requirement Directive 2000/78/EC Article 4(1) a difference of treatment based on grounds of RB (SO, Age and disability) shall not constitute discrimination where: -by reason of the nature of the particular occupational activities concerned or -of the context in which they are carried out, -such a characteristic constitutes a genuine and determining occupational requirement, -provided that the objective is legitimate and the requirement is proportionate.

Occupational Requirement churches and organisations based on religious or belief ethos Directive 2000/78/EC Article 4(2): Exception for occupational activities within churches or other organisations whose ethos is based on religion or belief A difference of treatment based on a person’s religion or belief will not amount to discrimination where, by reason of the nature or context of the activities religion constitutes a genuine, legitimate and justified occupational requirement having regard to the organisation’s ethos it should not justify discrimination on another ground these organisations can require individuals working for them to act in good faith and with loyalty to the organisation's ethos

Reaney v Hereford Diocesan of Board of Finance (2006, Employment Tribunal, UK) Bishop refused to offer Mr Reaney job as Youth Worker because he did not believe he would remain celibate. Employment Tribunal concluded that case fell within domestic provisions implementing Art 4(1) as the post existed to promote and represent the religion. However, it concluded that Bishop was unreasonable in refusing to accept that Mr Reaney would adher to the requirement to remain celibate as he was single at the time. Direct discrimination made out.

Occupational Requirements key points Exceptions needs to be narrowly construed and justified on a case-by- case basis Art 4(2) only allows different treatment on the ground of religion or belief and not on other grounds All exceptions under Art 4 need to be clearly linked with the nature of the activities carried out EC reported that a number of countries did not implement Art 4 correctly with exceptions going beyond the terms of the Directive