TrustHLT/LaCour huggingface dataset:
GR1 (Government): Ms Liddell cannot, to apply the logic and reasoning in Pichon, cannot give precedence to her religious views in her professional sphere as a justification for her refusal to register same-sex partnerships.
GR1 (Government): Mr Macfarlane, too, could manifest his religious beliefs as he chose outside the professional sphere and was not entitled to give precedence to his religious views and, in effect, force his employer to give precedence to those views in deciding to whom he would provide couples' counselling.
GR1 (Government): Ms O'Wader and Mrs Chaplin's cases concern the wearing of a visible cross or crucifix at work.
GR1 (Government): I should make it quite clear that the government does not doubt that the applicant's motivation to wear a visible cross or crucifix at work was a genuine personal expression of their faith, nor is there any question of the importance of the cross as a Christian symbol.
GR1 (Government): However, as the constant jurisprudence of the Court makes clear, those are not the determinative questions under Article 9.
GR1 (Government): That jurisprudence draws an important distinction between types of act.
GR1 (Government): It is not, as I indicated, every act motivated or inspired by a religion or a belief that falls within Article 9.
GR1 (Government): In order to do so, the act must be, and I quote, an aspect of the practice of a religion or belief in a generally recognised form.
GR1 (Government): Is that so here?
GR1 (Government): On the evidence, it is not.
GR1 (Government): The Employment Tribunal recorded that it was common ground that Ms O'Wader wished to wear the cross visibly, and I quote, as a matter of personal expression of faith, and not in response to a scriptural command.
GR1 (Government): The Court of Appeal noted that Ms O'Wader had, and I quote, an entirely personal objection to British Airways' uniform policy, neither arising from any doctrine of her faith, nor interfering with her observance of it, and never raised by any other employee.
GR1 (Government): That's paragraph 34 of their judgment, and we also refer the Court to paragraph 37 of that judgment, which is to similar effect.
GR1 (Government): Similarly, Mrs Chaplin regarded the crucifix she wore as, quote, a personal statement of faith.
GR1 (Government): Thus, the evidence was that they chose to wear the cross visibly as an expression of personal commitment, inspired by their religion, and not because they were following a scriptural command or teaching.
GR1 (Government): There is a second aspect to the engagement or interference issues.
GR1 (Government): In the House of Lords in the Begum case, at paragraph 23, Lord Bingham set out this court's jurisprudence, applicable where individuals voluntarily accept an employment or role that they then find does not accommodate their religious practices, but where there are other means open to them to observe their religion without undue hardship or inconvenience.
GR1 (Government): That jurisprudence establishes that in such circumstances, there is no interference with Article 9.
GR1 (Government): Lord Bingham described the jurisprudence as a coherent and remarkably consistent body of authority.
GR1 (Government): Paragraph 24, it is submitted that he was right on both counts.
GR1 (Government): A clear dividing line separating interference cases from no interference cases emerges.
GR1 (Government): The court has consistently held that if an employer requires or prohibits conduct while at work, that individual employees consider inconsistent with their religious beliefs.
GR1 (Government): There is no interference with Article 9 where they can obtain alternative employment in which they can practice their religion as they wish.
GR1 (Government): That approach reflects the respect that is to be accorded to, but also the need to strike fair balances between, the range of interests in play in this area.
GR1 (Government): In no case has the court held that employees who have the option of resigning and obtaining alternative employment can require their religious practices to be accommodated by their employer.
GR1 (Government): And the same applies to individuals who access services, in particular education, provided by a public institution.
GR1 (Government): In other words, as long as someone is not substantially excluded from working or accessing services because of their religious belief or practice, there is no interference with Article 9.
GR1 (Government): The cases in which an interference with Article 9 has been assumed or established are those in which the applicants had no alternative by which they could access public services, or in some cases avoid arrest, if they wish to continue to practice their religion.
GR1 (Government): In those cases, the applicants had no choice of attending a different institution or obtaining work with a different employer in order to avoid a conflict with their religious beliefs.
GR1 (Government): See the Kokkinakis case, Sahin and Turkey, Ahmet, Aslan and Turkey, Dogru and France, and Bayatayan and Armenia.
GR1 (Government): This jurisprudence has been applied in the UK.
GR1 (Government): In Begum, for example, the House of Lords considered an Article 9 claim brought by a girl not permitted to attend school wearing a jilbab, a long coat-like garment.
GR1 (Government): The court accepted that wearing a jilbab was a manifestation of the claimant's strict Muslim faith.
GR1 (Government): Faithfully following the court's jurisprudence, however, the House of Lords held that as there were alternative schools which the claimant could attend, at which she would be able to wear the jilbab, there was no interference with her Article 9 rights.
GR1 (Government): The core principle, it is submitted accurately, was summarised by Lord Scott at paragraph 87.
GR1 (Government): The court's jurisprudence, he said, and I quote, demonstrates the principle that a rule of a particular public institution that requires or prohibits certain behaviour on the part of those who avail themselves of its services does not constitute an infringement of the right of an individual to manifest his or her religion, merely because the ruling question does not conform to the religious beliefs of that individual.
GR1 (Government): And in particular, this is so where the individual has a choice whether or not to avail himself or herself of the services of that institution, and where other public institutions offering similar services and whose rules do not include the objectionable ruling question are available.
GR1 (Government): I said that Lord Bingham was correct on both counts.
GR1 (Government): The government submits that the court's jurisprudence is not merely consistent, but also coherent and correct in principle.
GR1 (Government): It strikes the right balance.
GR1 (Government): In a pluralist society, individuals share a wide range of religions and beliefs, entitled to equal respect.
GR1 (Government): Individuals should be free to manifest their religion or belief unless a restriction can be justified.
GR1 (Government): That does not mean, however, that states should require employers to recognise an enforceable right of employees to practise their religion or beliefs at work, irrespective of whether that clashes with the dress or other requirements of the employer.
GR1 (Government): It is both appropriate and necessary in assessing interference to have regard to the fact that employees themselves may have other options.
GR1 (Government): The Convention does not allow employees simply to insist on their terms of employment being changed to accommodate their religion or belief.
GR1 (Government): How does this second set of principles apply in these cases?
GR1 (Government): As with the pharmacists in Pichon, the clergymen in Aix, the employees in Ahmed and Stedman, and the schoolgirl in Bagan, all the applicants were able to, quote, Pichon, to manifest their religious beliefs in many ways outside the professional sphere.
GR1 (Government): The Court's jurisprudence makes clear that employees are free to resign if they consider that the requirements of their employment are incompatible with their religious beliefs.
GR1 (Government): That, as the Commission held in Aix and Continent, guarantees freedom of religion.
GR1 (Government): Indeed, in Mr Wader and Mrs Chapton's cases, the employees went further and were concerned to try to find ways to accommodate their beliefs even within the employment structure.
GR1 (Government): Mrs Wader and Mrs Chapton were not, as were the applicants in Ahmed, Continent and Stedman, faced with the choice of either acting contrary to their religion or being dismissed from their employment.
GR1 (Government): Both were told that they could wear the cross or crucifix, provided it was covered, when dealing with customers or patients, as indeed Mr Wader had in fact done from 1999 until 2006 without demur.
GR1 (Government): Mrs Chapton was even offered the option of wearing the crucifix visibly by securing it to her identity badge, except when undertaking close clinical duties.
GR1 (Government): But both were offered alternative employment by their employers on the same pay where they would be able to wear a visible cross in the manner they wish.
GR1 (Government): For all these reasons, my primary submission is that there has been no interference in any of these cases.
GR1 (Government): Neither Mrs Wader nor Mr Macfarlane were employed by public bodies.
GR1 (Government): They must therefore show that Article 9, taken alone or in conjunction with Article 14, imposed positive obligations on the United Kingdom to ensure that their employers accommodated their religious practices.
GR1 (Government): The possibility of positive obligations being imposed by Article 9, stroke 14, has been countenanced only in a very few cases.
GR1 (Government): Their hallmark is extremity.
GR1 (Government): Gildani Congregation of Jehovah's Witnesses in Georgia is an example.
GR1 (Government): The applicants were Jehovah's Witnesses attacked during a meeting of their congregation.
GR1 (Government): They were then, to quote from the judgment, court's judgment at 133, confronted with total indifference and a failure to act on the part of the authorities who, on account of the applicant's adherence to a religious community perceived as a threat to Christian orthodoxy, took no action in respect of their complaints.
GR1 (Government): The court found, unsurprisingly perhaps, that there had been a breach of Article 9 through their inactivity.
GR1 (Government): The relevant authorities failed in their duty to take the necessary measures to ensure that the group of orthodox extremists tolerated the existence of the applicant's religious community and enabled them to exercise freely their rights to freedom of religion, said the court at paragraph 134.
GR1 (Government): The present cases are nothing like Gildani.
GR1 (Government): A relates termination of Mr. McFarland's employment
GR1 (Government): and British Airways' refusal to permit Miss Iwida to wear a visible cross at work for a period of a few months did not prevent either of them from exercising their freedom to hold religious beliefs or practicing their religion in any way they chose outside their employment.
GR1 (Government): The court has never recognized positive obligations on the state pursuant to Article 9 to intervene in such circumstances and we submit should not do so in the present cases.
GR1 (Government): In any event, it is plain that the UK has satisfied any positive obligation that might arise under Article 9.
GR1 (Government): The domestic law we submit is more than sufficient to comply with any such positive obligations.
GR1 (Government): At the material time, the UK had in place the Employment Equality Brackets Religion or Belief Regulations 2003, which were implemented to comply with the UK's obligations regarding religion or belief pursuant to Council Directive 2078 EC of November 2000, establishing a general framework for equal treatment in employment and occupation.
GR1 (Government): The 2003 regulations have now been replaced with substantially similar provisions by the Equality Act 2010.
GR1 (Government): The 2003 regulations rendered it unlawful to discriminate in employment.
GR1 (Government): Regulation 3 defined discrimination to include direct religious discrimination, that is treating an employee less favorably on grounds of his or her religion or belief, and indirect religious discrimination, that is applying a provision, criterion or practice that places a person or persons of the same religion as the employee at a particular disadvantage and which the employer cannot show was a proportionate means of achieving a legitimate aim.
GR1 (Government): Both Mr Wader and Mr McFarlane brought proceedings in the Employment Tribunal for breach of those 2003 regulations.
GR1 (Government): The remainder of my submissions on Article 9 are going to focus on the necessity and proportionality issues, assuming for that purpose, contrary to the primary case we advance, an interference in each case.
GR1 (Government): As I will indicate shortly, these submissions apply equally to necessity and proportionality when considered in conjunction with Article 14 or pursuant to Article 9 alone.
GR1 (Government): The approach in principle at this stage is well established.
GR1 (Government): I simply emphasize that the Court has specifically recognized the difficulty of the balance to be struck in democratic societies between individuals' rights to manifest their religious beliefs and the rights of others who are affected by that manifestation.
GR1 (Government): In Sahin, for example, the Grand Chamber recognized at paragraph 106 that, and I quote, in democratic societies in which several religions coexist within one and the same population, it may be necessary to place restrictions on freedom to manifest one's religion or belief in order to reconcile the interests of the various groups and ensure that everyone's beliefs are respected.
GR1 (Government): Both permitting and restricting manifestations of religious belief, of course, communicate important values for a society and have a significant symbolic as well as practical impact.
GR1 (Government): How that impact is assessed and how the competing values are weighed against one another are matters on which, as I said at the outset, national authorities can legitimately and do legitimately take different positions and on which local concerns are likely to be critical.
GR1 (Government): But for that reason, as the Grand Chamber noted at paragraph 109 in Sahin, a particularly wide margin is therefore to be afforded.
GR1 (Government): I deal first with Miss O'Wader.
GR1 (Government): Her employer, British Airways, was a private entity.
GR1 (Government): Accordingly, even if the state's positive obligations were engaged, they were satisfied for the reasons I've just set out.
GR1 (Government): However, it's submitted if necessary that any interference with her rights would be justified on the facts.
GR1 (Government): Her claim pursuant to the 2003 regulations was dismissed by the Employment Tribunal.
GR1 (Government): Her appeals to the Employment Appeal Tribunal and the Court of Appeal were unsuccessful.
GR1 (Government): The Court of Appeal concluded that even if BA's uniform policy had placed Christians at a particular disadvantage, which it didn't find, the policy would nonetheless have been a proportionate means of achieving a legitimate aim, see paragraphs 30 to 39 of the Court of Appeal's judgment.
GR1 (Government): The chronology and the Court of Appeal's analysis were in summary as follows.
GR1 (Government): An airline having a uniform code for its check-in staff was legitimate.
GR1 (Government): BA was entitled to conclude that a uniform played an important role in maintaining a professional image and strengthening recognition of the company brand, and it had a contractual right to insist on its employees who dealt with members of the public to insist that they wore a uniform.
GR1 (Government): It was a matter for BA that its choice of women's uniform was a blouse worn with a cravat and without visible necklaces.
GR1 (Government): The rule that as part of the uniform visible items around the neck were not permitted had caused no known problem for Christians, including for two years for Miss Iweda herself.
GR1 (Government): The uniform was worn by approximately 30,000 staff who had contact with the public.
GR1 (Government): As already noted, Miss Iweda accepted in terms that her objection to BA's dress code was, quote, entirely personal and did not arise, as it was put by the Court of Appeal, from any doctrine of her faith, nor interfering with her observance of it.
GR1 (Government): Miss Iweda raised an objection to the uniform code in 2006, as the Court of Appeal found in paragraph 34, not, as I said, by seeking a revision of the code, but by reporting to work twice in breach of it.
GR1 (Government): She then lodged a formal grievance in June 2006.
GR1 (Government): Without waiting for the grievance to be resolved, she again breached the code and on this occasion was sent home.
GR1 (Government): On previous occasions, when other employees had raised concerns about BA's uniform code on religious grounds, BA had viewed the matter, and again to quote from the Court of Appeal, paragraph 35, through the perspective of diversity and sought to accommodate staff diversity where appropriate.
GR1 (Government): Other than Miss Iweda, every other individual who had requested accommodation of their religious circumstances had observed the existing policy until a change was authorised.
GR1 (Government): BA considered Miss Iweda's objection to the uniform.
GR1 (Government): While the matter was being resolved, BA offered Miss Iweda work on the same pay, but involving no public contact at which she could wear a visible cross.
GR1 (Government): She refused and chose instead to stay at home and claim her pay as compensation.
GR1 (Government): In 2006 November, BA announced a review of its policy on the wearing of religious symbols and consulted staff members and union representatives.
GR1 (Government): And then in January 2007, BA, having considered the matter carefully, announced a new uniform policy.
GR1 (Government): With effect from February 2007, it permitted the visible wearing of religious and charity symbols.
GR1 (Government): Certain symbols such as the cross and the Star of David were given immediate authorisation.
GR1 (Government): As the Court of Appeal observed, it is difficult to see how a previously unobjectionable uniform policy could become disproportionate as soon as Miss Iweda raised a complaint about it.
GR1 (Government): Once she raised the issue, it was then conscientiously addressed by her employer and the policy was changed within a matter of months.
GR1 (Government): The Court of Appeal concluded that both during the years that the policy operated without objection and while it was being reconsidered following Miss Iweda's complaint, that the uniform policy constituted a proportionate means of achieving a legitimate aim.
GR1 (Government): That was a conclusion we submit that the Court of Appeal was entitled to reach and in her application to this court, Miss Iweda does not identify any error in its reasoning.
GR1 (Government): The Court of Appeal carefully considered whether BA had acted proportionately.
GR1 (Government): It did so in relation to the 2003 regulations.
GR1 (Government): However, its conclusion applies equally to Article 9.
GR1 (Government): Pursuant to Article 9.2, as the Court well knows,
GR1 (Government): the right to freedom of religion may be limited to protect the rights of others.
GR1 (Government): That includes the contractual right of an employer to require employees to wear a prescribed uniform.
GR1 (Government): Where a complaint is made on religious grounds about a uniform policy previously found to be unobjectionable, the employer is entitled to consider carefully the employee's objection before making alterations to that policy.
GR1 (Government): When, as with BA in this case, the employer does so conscientiously and in a reasonable time and then agrees to change the uniform to accommodate the employee's request, and especially where the employer offers the affected employee alternative work in the interim, the employer has acted, we submit, entirely appropriately, and there was no breach of the Convention.
GR1 (Government): In Mrs Chaplin's case, to turn to that, the uniform policy to which she objected was the prohibition on all wearing of necklaces by medical staff dealing with patients, in her case, aged patients.
GR1 (Government): The reason for the policy was, as the Employment Tribunal decision at paragraph 12 found, to reduce the risk of injury when handling patients.
GR1 (Government): The concern of her employer, the Royal Devon and Exeter NHS Foundation Trust, was that a visible and hence accessible necklace might be seized and pulled by a disturbed patient.
GR1 (Government): All nurses who were engaged in direct patient care, either of a clinical or personal nature, were thus prohibited from wearing a visible necklace as well as other jewellery.
GR1 (Government): Even if the Trust's uniform policy had placed Christians at a particular disadvantage, again, which it did not find, the Tribunal accepted that the uniform policy would nonetheless have been a proportionate means of achieving a legitimate aim.
GR1 (Government): The Tribunal accepted that the aim of the uniform policy in protecting the health and safety of staff and patients was a legitimate aim, and that it pursued that aim in a proportionate manner.
GR1 (Government): The Tribunal also noted that the Trust offered to redeploy Mrs Chaplin to non-clinical duties on the same pay, paragraph 22 of their decision, and that it made other suggestions designed to enable her to wear the crucifix, such as attaching it to her identity badge or wearing a necklace under her clothes, in a way that could not be grabbed by patients.
GR1 (Government): Mrs Chaplin, in her application to this Court, does not suggest that the Trust's aims of reducing risks to health and safety were not legitimate, nor does she state that its policy was disproportionate.
GR1 (Government): Under those circumstances, it is, we respectfully submit, hard to see on what basis she contends that Article 9 was breached.
GR1 (Government): Mrs Chaplin does assert that, quote, if Sikh or Muslim medical personnel were permitted to breach infection control for religious reasons, wearing of the hijab, Sikh kara bracelet, or Islamic modesty rules, there is a requirement of weighty reasons for banning Mrs Chaplin from wearing, as she put it, a small crucifix.
GR1 (Government): That submission is wrong on the facts.
GR1 (Government): Sikh nurses were not permitted by the Trust to wear the kara bracelet or the kirpan, that's Employment Tribunal, paragraphs 15 and 26.
GR1 (Government): The Trust did not permit Muslim staff to wear clothing that it regarded as a risk to health and safety.
GR1 (Government): On the contrary, it prevented the wearing of a flowing hijab, paragraph 16 of their reasoning, and permitted only the wearing of, as it was put in the Employment Tribunal's judgment, close-fitting sports hijab akin to a balaclava helmet with no loose ends.
GR1 (Government): The Trust was plainly entitled to prohibit all staff from wearing clothing or jewellery considered to be a risk to the health and safety of patients and staff.
GR1 (Government): It applied the policy consistently to all religious groups.
GR1 (Government): The Trust's policy was therefore rightly found to be proportionate and to pursue the legitimate aim of protecting staff and patient safety by the Employment Tribunal, whose decision was not appealed.
GR1 (Government): There is again no basis, we submit, for impugning that decision before this Court.
GR1 (Government): The Liddeli McFarlane cases, or the Liddell McFarlane cases, are concerned with striking a fair balance between the rights and freedoms of different groups.
GR1 (Government): On the one hand are the rights of those who believe, whether or not motivated by religion, that homosexual acts are morally wrong, or that same-sex relationships should not be promoted.