Challenging Discrimination

1. Challenging Discrimination Catrin Lewis

2. Article 14general non-discrimination provision “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.

3. Use of other articles • Other rights have also been used to challenge particular types of discriminatory treatment - most notably, • Article 8 (the right to respect for private life) and • Article10 (freedom of expression) in relation to sexual orientation discrimination, and • Article 9 (the right to freedom of thought, conscience and religion) in relation to discrimination on grounds of religion or belief.

4. Article 14 - limitations Article 14 itself has inherent limitations, due to the need to combine it with another right before it can be used in UK law The implementation of the Equal Treatment Framework Directive in the UK – means there is little need for the HRA to intervene to ensure that key minority groups are protected l

5. Protocol 12 of the Convention • The UK has chosen not to ratify Protocol 12 • a free-standing right to equality • prohibits discrimination in relation to any right set forth by law.

6. When is Article 14 engaged • Ghaidan v. Godin-Mendoza, • House of Lords confirmed that it was not necessary to establish a definite breach of another right in order to bring in Article 14, • Only need to establish the provision under scrutiny falls “within the ambit” of that right

7. Article 8 - right to respect for private life • Article 8 has been relied on successfully by employees claiming protection from discrimination on the basis of sexual orientation • Smith and Grady v. U.K • Lustig-Prean and Beckett v UK • dismissal from the military on the grounds of homosexuality. investigations by military police into the applicants’ personal lives, and the applicants’ subsequent discharge from the military on the sole ground of their sexual orientation, were an unjustified interference with the right to respect for their private lives

8. Article 9 - right to freedom of thought, conscience and religion • Ahmad v. U.K a Muslim schoolteacher who required time off on Fridays for prayer • Stedman v. U.K a Christian employee who did not wish to work on Sundays • Kontinnen v. Finland a Seventh Day Adventist who wished to leave work before sunset on Fridays • not an infringement to require compliance with the employment contract

9. Article 9 - dress codes • Sahin v Turkey headscarf ban implemented by a Turkish University was “necessary in a democratic society” (Articles 8 and 10 were also relied on) • R (Begum) v Headteacher and Governors of Denbigh High School, no interference with Article 9 rights when a schoolgirl was excluded for failure to comply with the required dress code, on the basis that she could have attended three other schools in the area which would have permitted her to wear the jilbab

10. HRA and current discrimination law • Race Equality Directive • Equal Treatment Framework Directive • discrimination in the workplace on grounds of disability, age, religion or belief, and sexual orientation • Equality Act 2010 • presumption by the Strasbourg Court that a country will not have departed from Convention rights when implementing legal obligations arising from membership of the EU