Libby Powell: EHRC report 'does not tell whole story'

Published: December 12th, 2016

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Christian Legal Centre Case Worker Libby Powell responds to an EHRC report, released on Friday 2 December, that considers some of the key CLC cases of the last few years and concludes that the current law protecting religion and belief us adequate and does not need to be amended.

The EHRC report, released on 2 December considers some of the key CLC cases of the last few years and concludes that the current law protecting religion and belief us adequate and does not need to be amended.

Here at the CLC we have lived the cases mentioned in the reports. So, we are very concerned that the Report does not grapple with what really happened in the cases of Victoria Wasteney, Celestina Mba, Gary McFarlane and several others. We believe this makes it impossible for the Report to correctly evaluate whether the particular strands of discrimination law which have been scrutinised actually protect Christians who have expressed their faith in the workplace and in business.

The EHRC report concludes, that broadly, the law offers protection, but its conclusions are based on court judgments which do not reflect the reality of the situations our clients have experienced.

What is the law meant to do?

The first question to ask is whether the law, as set out in the Equality Act 2010, ("the Act") provides adequate protection for the right for Christians to manifest their beliefs in public life. The report focuses in on some of the protections offered by the Act.

The Equality Act is a comprehensive collection of anti-discrimination laws which are meant to ensure that discrimination never takes place, apart from in very limited situations where, for example, discrimination is allowed so that the convictions of a religious organisation providing services to the public are protected. Discrimination law applies to employers and employees too.

There are 9 protected characteristics which include immutable characteristics such as age, biological sex and race and characteristics of choice including religion and belief, marriage and gender. All the protected characteristics are given equal protection under the Equality Act. Often the protected characteristics of religion or belief are pitted against each other in the cases which we have dealt with and religion loses out.

The tests set out in the Act to prove discrimination are difficult to pass Christian faith is expressed in different ways by different Christians, and, in our experience, this means that it is very difficult, if not impossible, to cross the hurdles of direct and indirect discrimination. In other words, because of the way that the legal tests are framed, Christians facing discrimination in the work place are often unable to prove to a court that the reality of what they experienced was illegal.

Some of the EHRC's conclusions

Looking at the specific findings of the report, it concludes, amongst other things, that indirect discrimination works and that there is no need to introduce ‘reasonable accommodation’. While this is not the place to discuss exactly why indirect discrimination does not work, we can say, from experience, that there is a problem with the group test which is part of indirect discrimination. The requirement to show that at least one other person with the same faith as the complainant would also be disadvantaged by the work policy in question is often unworkable in practice. The likelihood of finding another Christian in the same workplace as the complainant, who holds the same beliefs about, for example Sundays, and is willing to say this to a court, is very small.

The other concerning conclusions of the report are that manifestation of belief in the workplace and the freedom to operate a business in line with one’s faith are adequately protected by existing law. Casting our minds back to the decision in the Ashers Bakery case, we know that this just is not the case. Yes, everyone can agree with the laudable aim of removing discrimination, but this approach fails to take into consideration that discrimination happens both ways (i.e. to the Christians, too) and that discrimination is often another word for ‘choosing’, which is a valuable tenet of our free society.

What would our clients say?

It crossed my mind about how our clients, many of whose cases are mentioned in the report, would respond to it.

Our clients are, in a sense, living proof that the law did not adequately protect their freedom to share their faith, because they were disciplined and silenced for living out their faith, whether that was being sacked for answering a colleague’s questions about homosexuality, being suspended for almost 9 months for having consensual conversations about Jesus with a colleague, or for offering the hope of Jesus to a sick client.

I would like to see Celestina Mba’s response to the EHRC telling her not to worry because the law offers adequate protection for her belief that Sunday is a day reserved for worship, even though she was forced to resign so that she can practice this belief.

It is crucial to ensure that the truth about cases is being discussed in public. To that end we have published Christians in the Firing Line, which illustrates what really happened in some of the cases referenced in the report. We also produce an extensive and comprehensive case summary which records in brief detail the challenges our clients have faced. We would encourage Christians to read these publications and share them with others in their churches. If God’s people don’t understand what their brothers and sisters have experienced then they will believe what they read in the court judgments and critical media reports.

Are the report’s conclusions justified?

Many will read the report and take on board the EHRC’s repetition of various court findings as fact and therefore agree that their conclusions are justifiable. Or, if others do not quite agree that the law is providing enough protection, they may feel that the ‘rubber stamping’ of all that has been said before, by the EHRC and others, about the law in this area, cannot be challenged.

However, if the EHRC and many others had lived through these cases, as our clients have and as we at the CLC have, their report may have reached some starkly opposite conclusions. Consider what was really said in some of the cases: the employment tribunal in Celestina’s case telling her that her belief in keeping Sunday special was not a core component of her faith, the Court of Appeal in Gary McFarlane’s case saying that Christian religious convictions did not deserve full protection in law, or that the Employment Tribunal in Victoria Wasteney’s case heard and read evidence that Victoria’s colleague welcomed discussions about faith, consented to being prayed for and took the book that was offered to her. Is this how the law protects faith?

While we appreciate that the EHRC was using the court judgments in these cases and members of the EHRC did not hear the evidence given in court about what really happened, this pattern of repeating half a story without thorough investigation of the facts is indicative of a wider problem which needs to be tackled before it is repeated again and again.

Conclusion

It is our experience, with over a decade of court hearings under our belts, that the court hears the evidence and usually finds in favour of the employers, because of the way that the legal tests operate. This means that the Christians lose their cases and sometimes are themselves labelled ‘discriminatory’. The reports of the court judgments are factually incomplete and inaccurate, because the court has preferred one set of facts over another. The whole story is not open to discussion. Then, based on those court judgments, academics produce reports, people read these and then believe that the Christians who claim they have been discriminated against are not telling the whole story. It is this system which we are up against, every time we stand with a Christian who has been punished for living out their faith.

A review of the law in this area is overdue and essential but this can only be properly done when the facts as they really happened are the centre of the discussion.

We cannot support a report that does not give the full story. Neither can our clients.