TrustHLT/LaCour huggingface dataset:
AP3 (Applicant): Article 8 rights and Article 10 rights have been applied in the employment context, and so should Article 9 rights.
AP3 (Applicant): Article 9 rights need to be fully recognized and protected with or without an Article 14 analysis.
AP3 (Applicant): It's wholly unrealistic to say someone is free to resign and face unemployment and suffering.
AP3 (Applicant): You can't want contract out of one's convention rights in a situation of inequality of bargaining power between an employer and an employee.
AP3 (Applicant): Can every employee make it a condition of employment that you contract out of your convention rights?
AP3 (Applicant): And would any other vulnerable group be so treated in such a dismissive manner?
AP3 (Applicant): The real issue is where Article 9 is engaged.
AP3 (Applicant): In the employment context, the national courts must correctly balance the clash of rights between an employer and employee in accordance with the fundamental rights and guarantees of the convention.
AP3 (Applicant): This should be a strict form of scrutiny, and the concept of reasonable accommodation is a practical working model.
AP3 (Applicant): And this process can take place under Article 9, Article 14 in conjunction with Article 9, or even under Article 6 of access to the court.
AP3 (Applicant): The state is under a positive obligation to protect these Article 9 rights, and the United Kingdom has done this by means of anti-discrimination legislation.
AP3 (Applicant): We submit the United Kingdom under a positive obligation to give effective protection to these rights, and this extends to an obligation to exercise domestic legislation in conformity with the convention.
AP3 (Applicant): There is no lack of consensus of the member states or the Council of Europe on the importance of Article 9.
AP3 (Applicant): The problem is perceived animus to the Christian faith by the courts of the United Kingdom.
AP3 (Applicant): Religious faith should never be so treated, described, or disparaged by a state.
AP3 (Applicant): The Christian faith is worthy of respect in a democratic society.
AP3 (Applicant): In my respectful submission, this court is the conscience of Europe, and it has now had the opportunity to effectively recognise and accommodate religious freedom in Europe.
Lech Garlicki (JudgeP): Now we can start the second phase of this part of the hearing, namely the questions put by judges.
Lech Garlicki (JudgeP): Who would like to ask a question? Judge Bratza.
Nicolas Bratza (Judge): I have a number of questions.
Nicolas Bratza (Judge): The first of all, three questions I would like to put to the government.
Nicolas Bratza (Judge): Firstly, is it the government's argument that before an act can be regarded as a manifestation of a religious belief, as opposed to being motivated or inspired by that belief, it must be mandated by the religion in question, or at least form part of the practice of the religion or belief in a generally recognized form?
Nicolas Bratza (Judge): If so, how is this court to determine this question in cases where an applicant asserts and the respondent denies that it is so mandated?
Nicolas Bratza (Judge): Is this rather narrow approach consistent with that adopted by the Grand Chamber in the Leyla Şahin case, where the court did not examine whether the wearing of an Islamic scarf was mandated by the Muslim religion?
Nicolas Bratza (Judge): Secondly, do the government argue that there can be no interference at all with the manifestation of religious belief in the context of employment if the applicant can reconcile that conflict by resigning and seeking employment elsewhere?
Nicolas Bratza (Judge): If so, must the employer do more than merely assert this by showing the genuine possibility of alternative employment?
Nicolas Bratza (Judge): If this is not the government's argument, in what circumstances would the government accept that there could be an interference?
Nicolas Bratza (Judge): And thirdly, in the case of Mrs. Ladele, does it, in the view of the government, make a
Nicolas Bratza (Judge): difference that at the time of her original employment, civil partnerships did not exist and that new requirements were effectively imposed on her when she was asked to perform civil partnership ceremonies?
Nicolas Bratza (Judge): And I have one question to the counsel for Mrs. Eweida and Mr. McFarlane.
Nicolas Bratza (Judge): Do you argue that the same approach should be adopted to the claims under Article 9 and under Article 14, whether the employer is a state authority or a private law company or association?
Nicolas Bratza (Judge): If not, how is it suggested that the court's approach should differ when dealing with the positive obligations of the state, as in the two cases in question?
Nicolas Bratza (Judge): I note that reliance is placed, strong reliance is placed in the written observations on this section's judgment in Jakóbski, but that, of course, was a case which clearly involved direct state intervention in the sense it concerned the prison authorities in Poland.
Nicolas Bratza (Judge): Then I have two factual questions.
Nicolas Bratza (Judge): The first addressed to Mrs. Eweida, is it correct that prior to May 2006, Mrs. Eweida wore a
Nicolas Bratza (Judge): cross, but that the cross was not visible over her uniform?
Nicolas Bratza (Judge): And then one in respect of Mr. McFarlane, was it the applicant's own choice to apply
Nicolas Bratza (Judge): for the psychosexual therapy diploma, or was this a requirement of his being able to be employed by Relate?
Nicolas Bratza (Judge): If the former, did he know that this would require him to give PST counseling to same-sex couples at the time he applied for the diploma?
Nicolas Bratza (Judge): Thank you very much.
Lech Garlicki (JudgeP): Thank you. Judge Hirvelä.
Päivi Hirvelä (Judge): My question concerns the Eweida case.
Päivi Hirvelä (Judge): And we heard and read also from the documents that the British Airways adopted in 2007 a new uniform code which allowed carrying visible religious symbols at work.
Päivi Hirvelä (Judge): And my question is whether the parties know what was the reason for the change of this policy?
Päivi Hirvelä (Judge): Was it the Eweida case?
Päivi Hirvelä (Judge): Was it the policy of other companies?
Päivi Hirvelä (Judge): Or was there something in the national non-discrimination legislation?
Päivi Hirvelä (Judge): And then we also know that 30 other staff members, they were happy with the code, or at least they followed it.
Päivi Hirvelä (Judge): And my question is whether the parties know, has the change of this code had any other larger impact other than that Mrs. Eweida could return to her work?
Lech Garlicki (JudgeP): Thank you.
Lech Garlicki (JudgeP): Judge, Judge de Gaetano.
Vincent A. De Gaetano (Judge): Yes, I would like to ask a factual question in the context of what has been proposed, that employers cannot be forced to accommodate the beliefs of the religious convictions of their employees.
Vincent A. De Gaetano (Judge): My question, and I ask this sincerely out of sheer ignorance of what the position is in England, but is there any law in the United Kingdom which, in the context of hospital services, allows hospital employees, particularly nurses but possibly even doctors, to opt out of certain interventions, operations, whatever, on the grounds of conscientious objection?
Vincent A. De Gaetano (Judge): I don't know what the position is. If it was mentioned in one of the papers submitted,
Vincent A. De Gaetano (Judge): I apologise for putting that question again. It may have slipped, I may have not noticed it. Thank you.
Lech Garlicki (JudgeP): Thank you. Judge Vučinić.
Nebojša Vučinić (Judge): My question is related to the previous questions of Judge Hirvelä concerning change in British Airways dress code policy, symbol policy.
Nebojša Vučinić (Judge): What did it mean?
Nebojša Vučinić (Judge): This question is for both parties.
Nebojša Vučinić (Judge): Did it mean that British Airways indirectly and tacitly recognized the violation of the applicant's rights?
Lech Garlicki (JudgeP): My question is similar to that of Sir Nicolas and is directed mostly to the government.
Lech Garlicki (JudgeP): Well, it transpires from the facts and it was not disputed at this hearing that the British Airways allowed some types of religious dress like turbans or headscarves, at the same time prohibiting other types.
Lech Garlicki (JudgeP): As it was stated by the counsel for the applicant, this was based on a so-called mandatory scripture requirement test.
Lech Garlicki (JudgeP): My question is, was it really so that this was such a test that was decisive for differentiations?
Lech Garlicki (JudgeP): And if so, what is the conventional basis for applying and enforcing such tests?
Lech Garlicki (JudgeP): And as there are no other questions, I suppose both parties need some time to reflect on the answers.
Lech Garlicki (JudgeP): So let's have a 15-minute break and we start at 5 to 11.
Lech Garlicki (JudgeP): Please be seated.
Lech Garlicki (JudgeP): Well, taking into account that there are several questions put by judges, I will assign 10 minutes for the government to answer and to comment on any other problems they wish, and 5 minutes for each of the three councils. I call Mr. Eadie.
GR1 (Government): Mr. President, may I start with the court's questions.
GR1 (Government): Judge Bratt, first of all, asked whether it was the government's case that before there could be any manifestation for the purposes of Article 9, the matter in question or the action in question must be more than merely motivated by and must be mandated or a generally recognized form.
GR1 (Government): And if so, how does the court go about assessing the answer to that question, if that is the question?
GR1 (Government): My submission is that the position is as follows.
GR1 (Government): It does not need to be established that the action in question is a formal requirement in the sense of mandated in its strict sense.
GR1 (Government): But what does have to be shown, because it isn't every act that is covered by Article 9, is that in the words of the court, the action in question is a generally recognized form of the religion.
GR1 (Government): That has been the consistent and constant case law of the courts.
GR1 (Government): So we do make that submission.
GR1 (Government): The domestic courts have put that test in a variety of different ways.
GR1 (Government): I say the court's case law is generally a recognized form.
GR1 (Government): The domestic courts have on occasion used words such as intimately linked to the core values of the religion in question.
GR1 (Government): How does the court go about assessing that?
GR1 (Government): My submission in relation to that is that it does so by, if necessary, in the case of a dispute, receiving evidence.
GR1 (Government): That is, of course, a matter for the domestic courts if there is a dispute about that.
GR1 (Government): And there's nothing invidious about that, because what one would be looking for in investigating is not the subjective belief of the individual in question, but the objective question, which is whether or not the action that is before the court is indeed a generally recognized form of the religion in question.
GR1 (Government): So we respectfully submit that there's nothing invidious about the approach that asks the objective question.
GR1 (Government): Indeed, it has the benefit of being an objective question.
GR1 (Government): I emphasize finally in answer to that question that in these cases, particularly in the case, for example, of Mese Wada, there was no dispute.
GR1 (Government): The domestic court specifically considered that issue, and it was common ground and accepted that she was wearing the cross, not as it were as a generally recognized form of practice of the religion, but as a matter of pure personal preference.
GR1 (Government): So to put the point rather more simply, a great many Christians do not insist on wearing crosses either at all or still less visibly.
GR1 (Government): We respectfully submit that our answer to that question is not in any shape or form undermined by the Sahin case, which Judge Bartser refers to.
GR1 (Government): It's evident, if I recall that case correctly, that when they dealt with the interference aspect of the matter, they dealt with it very shortly, and I think a single paragraph, before moving on.
GR1 (Government): And it's evident from the report of that case, I think, that there was no challenge in that particular case to the interference issue.
GR1 (Government): So we do submit that Sahin doesn't stand, as it were, as authority against the previous clear and consistent jurisprudence of the court, which is, as I've said, clearly to the effect that what is required is a generally recognized form of the religion.
GR1 (Government): And indeed, it might be thought that it's unsurprising there was no dispute on the facts of Sahin, because the wearing of a headscarf is, I think one could take it as common ground, is a well-recognized form of practice or manifestation for Muslim women.
GR1 (Government): So we respectfully submit that Sahin does not stand in opposition to the test that we propose, which is the right test recognized by the court and acceptable in principle.
GR1 (Government): Judge Garlicchi then asked a similar question, which related to the BA policy in the Uweda case.
GR1 (Government): And I think, again, from memory, someone will correct me if I'm wrong, but I think that the position is that the BA policy was indeed that there should be no jewelry unless mandatorily required by a religion.
GR1 (Government): The fact of the matter is, however, that in relation to BA, first of all, they did reconsider the policy as soon as it was raised in the case of Miss Uweda, and then changed the policy.
GR1 (Government): That isn't, we submit, a recognition that the previous policy was not in a compliant state with the convention.
GR1 (Government): It would be a question in every case, and on the individual facts of every case, to assess whether or not operating a policy to preclude a particular form of jewelry or a particular form of item of clothing did or did not interfere with Article 9 rights.
GR1 (Government): The fact that a private employer's policy, previously and before it was reconsidered, was in that form, does not, we submit, and cannot be taken to being some form of implicit acknowledgment that prior to the change, the policy was non-compliant.
GR1 (Government): Indeed, you'll recall the Court of Appeals judgment, which was clearly an expressive to the effect, that before the policy was changed, it, as a policy, leaving aside how it was actually applied on individual cases, as a policy was not non-compliant, and didn't suddenly become non-compliant when the complaint was raised.
GR1 (Government): But as I say, BA conscientiously looked at the policy when it was raised and decided to change it.
GR1 (Government): On that point, and to interpose a short point by way of reply to Mr. Dingaman's submissions, he made a bit of
GR1 (Government): a point about how long it took BA, on his case.
GR1 (Government): I think it was a matter of months rather than anything else, but on his case, he made a bit of a point about how long it had taken BA to change that.
GR1 (Government): Well, you will recall again that in the Court of Appeal domestically, they specifically considered that complaint, and they rejected any suggestion that there had been any form of unreasonable delay by BA in changing that policy.
GR1 (Government): Once the complaint was received, they conscientiously considered it.
GR1 (Government): They followed their past practice of doing so through the lenses of diversity.
GR1 (Government): And at least one of the reasons, as appears from the Court of Appeal's judgment at paragraph 36, why the thing took so long to change was, in the words of the Court of Appeal quoting the Employment Tribunal, because the claimant's insistence on introducing wide policy considerations, forcing a broader range of issues onto the agenda.
GR1 (Government): And that is, with respect to Ms. Iwida, all of a piece with
GR1 (Government): paragraph three of the Court of Appeal's judgment, in which they record another express finding of the Employment Tribunal, namely that she exhibited serious insensitivity towards her colleagues, lack of empathy for those without a religious focus of their lives, incomprehension of the conflicting demands which professional management seeks to address and resolve on a near daily basis.
GR1 (Government): So we don't accept that BA delayed unduly in changing the policy that they did.
GR1 (Government): The second of Judge Bratz's questions to return to those was whether or not the government's case was that there could be no interference with Article 9 rights if the applicant's religious beliefs can be reconciled by resigning.
GR1 (Government): We don't put it quite as starkly as that.
GR1 (Government): You'll recall that in the domestic courts, particularly in Lord Bingham's speech in Begham, cast the position rather differently by reference to whether or not there were steps that the employee could take without undue difficulty.
GR1 (Government): And we submit that that is the right way of approaching the matter.
GR1 (Government): It is, in terms of the proof of that position, for the employee to assert, under domestic law, we believe, it is for the employee to assert that there would be such undue difficulty.
GR1 (Government): And if there was a dispute about that, the domestic courts would then resolve the factual question.
GR1 (Government): But there was no issue on that front, as we understand it, from the domestic court's judgments in any of those or any of these cases.
GR1 (Government): The option remained available to them.
GR1 (Government): And we remind the court that there are perhaps two aspects to this part of the interference argument.
GR1 (Government): Firstly, there is the resigning and moving to another job.
GR1 (Government): But secondly, there is the clear and consistent jurisprudence of the court that acknowledges that the person who asserts religious rights may, on occasion, have to take account of their position.
GR1 (Government): And by that, as we understand it, the court has consistently acknowledged that there is a difference between the professional sphere, where your religious freedoms necessarily are bought onto and confront other interests, and the private sphere.
GR1 (Government): And it is highly relevant in assessing interference to note that the employee concerned could indeed pursue all the manifestations, the well-recognized, generally recognized manifestations of their religion, outside the work sphere.
GR1 (Government): So we do say that the without undue difficulty test is the one, and we adopt Lord Bingham in relation to that.
GR1 (Government): And the way in which that is proved and tested is by the domestic courts on evidence, if necessary.
GR1 (Government): The third of Judge Box's questions related to the Liddell case, and it was whether or not it made a difference that the law changed, in effect, after Miss Liddell had taken up her employment.
GR1 (Government): Our answer to that is no, it doesn't make any difference to the Article 9 analysis.
GR1 (Government): The conditions in many spheres of employment can change.
GR1 (Government): And to turn to the, there's nothing wrong with employers insisting if they have a contractual right to do so, and there's no dispute that in this case they did have a contractual right to do so.
GR1 (Government): Conditions can change, and employers can insist on employees conforming their duties to new circumstances as they arise.
GR1 (Government): Second, and more specifically in relation to Miss Liddell's case, it was, we respectfully submit, not, as it were, in any shape or form, unpredictable or deeply surprising, that the law should move in the direction that it ultimately did, with civil partnerships becoming essentially part of what would be regarded as the normal and core functions of people performing the sort of employment that she was performing.
GR1 (Government): So we respectfully submit the answer to that question is it doesn't make a difference.
GR1 (Government): Judge Hervella's question related again to Miss Weider, and it asked the factual question, which was whether or not any of us know what it was that prompted the BA change of policy.
GR1 (Government): I imagine there will be common ground around this.
GR1 (Government): As we understand it, the trigger for the change was Miss Weider's case.
GR1 (Government): There had in the past been a series of different requests by different employees to add particular items of clothing or jewelry.
GR1 (Government): And those had always been conscientiously considered, as the domestic courts found.
GR1 (Government): So her request was indeed the trigger for the change.
GR1 (Government): It wasn't, as I emphasized before, it wasn't any form of implicit recognition, I think, by them that the previous policy had been unacceptable.
GR1 (Government): You'll remember that the uniform itself had changed, so that there were open-necked shirts and so on for a period of time.
Lech Garlicki (JudgeP): You are quite close to the time limit of frankly speaking, even over the time limit.
Lech Garlicki (JudgeP): So please do it in a concise way.
GR1 (Government): I've got a couple more questions to go.
GR1 (Government): The Judge De Getano's question, which is whether or not there is any law in the context of hospital services which allows a conscientious objection.
GR1 (Government): We haven't, I'm afraid, in the time available been able to get a complete list, but there are some.
GR1 (Government): I think abortion is one where you can say, I object to abortion and I do not want to participate in that form of it.
GR1 (Government): There may well be others, but if there are, we can no doubt inform the court, but there is at least that one.
GR1 (Government): I think I've addressed sufficiently Judge Vucinich's question, which was about changing the dress code and whether or not BA were implicitly recognizing, we say.
GR1 (Government): There wasn't any implicit recognition, so far as that is concerned.
GR1 (Government): Can I finally respond very, very briefly to at least one set of points by my own friend Miss Rose?
GR1 (Government): Two points, perhaps.
GR1 (Government): Firstly, in relation to the Dutch document that she referred to, we haven't had a chance fully to consider it, but we do at least put down a question mark about the status of that document.
GR1 (Government): Is it actually a formal government position, or is it advice that the government in Holland is now going to consider?
GR1 (Government): Secondly, and more substantively, what it does indicate is that different countries can take different positions, and these are difficult balances that need to be struck.
GR1 (Government): We note from the document, for example, the Equal Treatment Commission in Holland, as is recorded in that document, originally took the position that you shouldn't refuse to permit objection on the sort of grounds indicated, and then in 2008 changed their position.
GR1 (Government): So it simply indicates that there are difficult balances to be struck.
GR1 (Government): And finally, we do respectfully reject the underpinning logic of Miss Liddell's case, which effectively runs, I sincerely believe, she says, that gay relationships are sinful, contrary to God's law, however one wants to put it.
GR1 (Government): I won't do anything that I might consider endorses or promotes them, and I must be allowed to refuse to provide services.
GR1 (Government): We respectfully submit that that isn't the logic, and nor is it the logic of Article 9 or 14 to say that the mere existence of some other alternative is enough to establish disproportionality.
GR1 (Government): The logic of Article 9 requires the striking of balances with the broad margins involved.
GR1 (Government): It may have been lawful under domestic law for the council to set up its employment furniture, as it were, differently.