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

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?

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.’

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 /2006 ‘ Purposes of an Organised Religion’ Exemption

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

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

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

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