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Religious discrimination and the ‘hierarchy of rights’: non-existent, appropriate or problematic?

Religious discrimination and the ‘hierarchy of rights’: non-existent, appropriate or problematic?. Dr Megan Pearson Megan.pearson@winchester.ac.uk. Issues. 1.Is religion treated differently compared to other protected characteristics?

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Religious discrimination and the ‘hierarchy of rights’: non-existent, appropriate or problematic?

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  1. Religious discrimination and the ‘hierarchy of rights’: non-existent, appropriate or problematic? Dr Megan Pearson Megan.pearson@winchester.ac.uk

  2. Issues • 1.Is religion treated differently compared to other protected characteristics? • 2. In the ‘clash of rights’ cases are religious claims undervalued? • 3. Has the inclusion of religion affected the Equality Act scheme? • 4. If religion is treated differently, are there reasons for this?

  3. Religious Discrimination v Sexual Orientation Discrimination • Andrea Williams: • ‘Our Public Services are increasingly using equality and diversity policies to leave Christians sidelined and punished. In effect this amounts to a religious bar to office.’ • Rt Revd Nazir-Ali: • ‘There is a deep fear in the United Kingdom that the Human Rights agenda is becoming set against human rights; and seeking to remove Judaeo Christian values from the public square.’

  4. How have cases asking for a ‘right to discriminate’ fared? • Ladele v Islington LBC [2010] 1 WLR 955 • McFarlane v Relate Avon Ltd [2010] EWCA Civ 880 • Bull v Hall [2013] 1 WLR 3741 • Reaney v Hereford Diocesan Board of Finance ET 1602844/2006 • ‘Purposes of an Organised Religion’ Exemption

  5. But: • Claims of indirect religious discrimination to directly discriminate • Going outside statutory exemption scheme in highly sensitive context • Additional exemptions for religious organisations only – as well as usual GOR defence

  6. Expression cases: • Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch) • Mbuyi v Newpark Childcare (2015) ET 3300656/2014 • Apelogun-Gabriels v Lambeth LBC (2006) ET 2301976/05 • Haye v Lewisham LBC (2010) ET 2301852/2009

  7. Has the inclusion of religion affected the Equality Act scheme? • Meaning of direct race discrimination – R(E) v JFS [2010] 2 AC 728 • Azmi v Kirklees MBC [2007] ICR 1154 – direct or indirect discrimination? • Indirect discrimination and group disadvantage • ‘core belief’: Mba v Merton LBC [2014] 1 WLR 1501

  8. How different is religion from other protected characteristics? • Sedley LJ, Eweida v British Airways ‘One cannot help observing that all of these [characteristics] apart from religion or belief are objective characteristics of individuals; religion and belief alone are matters of choice’ • Not merely status but requires behaviour

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