Beardy weirdy?

Photo by Nonsap Visuals on Unsplash

A common theme of this Blog over the last few weeks concerns banning certain forms of dress or appearance (Burka bans and horse racing in a hijab published on 1 August 2019).

Imposing a ban in relation to dress codes or appearance can be problematic legally speaking because such an approach could be tantamount to indirect discrimination in terms of Section 19 of the Equality Act 2010.

Several of my previous blogs have addressed the issue of indirect discrimination.

So it was with some interest that I read a story recently about Burger King’s plans to prevent male staff from wearing beards while working in its restaurants throughout the region of Catalunya/Catalonia in Spain. Immediately, I thought about the legal consequences of such a ban being introduced to UK Burger King outlets. The test for indirect discrimination is whether a provision, criterion or policy (PCP) imposed by an organisation is likely to have a disproportionately adverse effect on certain groups of individuals who possess a characteristic protected by law (in the UK, we are primarily talking about the Equality Act).

Unsurprisingly, this attempt to impose a blanket ban on Burger King’s male employees fell foul of the Spanish Constitution’s provisions on equality. I would be prepared to stick my neck out and argue that a similar result would almost certainly be replicated in the UK had Burger King attempted to introduce such a ban. I wasn’t really surprised by this outcome because Spain, as an EU member state, has very similar equality and discrimination laws to the UK. In fact, the current concept of indirect discrimination in the Equality Act 2010 is derived from EU Law.

So, who might be affected if an employer implements a blanket ban on the wearing of beards in the work place? Quite a lot of male employees as it turns out, for example, very religious and observant Jews, Muslims and Sikhs. Furthermore, members of the Russian and Greek Orthodox faith groups and Rastafarians may also face real issues complying with such a requirement imposed by the employer. In short order, such bans may infringe religious and cultural expression and may not only be a breach of the Equality Act, but could also represent a breach of human rights laws under the Human Rights Act 1998 and Article 9 of the European Convention on Human Rights.

It is always open to an organisation, of course, to argue that dress codes or enforcing strict rules about an individual’s personal appearance can be objectively justified. In the past, banning beards or regulating the length of hairstyles in the work place have been justified successfully by employers or organisations on health and safety grounds i.e. primarily concerning hygiene (see Singh v Rowntree Mackintosh (1979) ICR 554 and Panesar v Nestle Co Ltd [1980] IRLR 64 CA).

Each attempt to justify a provision, criterion or policy (PCP) will, of course, turn on its facts and it would be very foolish for organisations to think that there is some sort of magic bullet or get out of jail card which can be used in every situation to justify or excuse conduct which would otherwise amount to unlawful discrimination. Organisations should review policies on a regular basis and, if need be, this may necessitate the carrying out of an equality impact assessment.

Recently, the Royal Air Force (RAF) has significantly relaxed its total ban on male service personnel wearing beards (moustaches were permitted). This change of heart by the RAF has been motivated by the realisation that individuals from ethnic and religious minorities were being actively deterred from applying to join the service because of the ban on beards.

Even the argument that beards are unhygienic is being undermined with Professor Michael Moseley, presenter of the BBC programme “Trust Me I’m a Doctor“, highlighting recent, scientific evidence that clean shaven men represent a greater threat to hygiene than their bearded counterparts.

Links to the stories on Burger King’s attempt to ban the beard, the RAF’s change of policy and whether beards are actually unhygienic can be found below:

https://www.theguardian.com/world/2019/jul/31/burger-king-beard-ban-infringes-workers-rights-says-catalonia

https://www.bbc.co.uk/news/uk-49313406

https://www.bbc.co.uk/news/magazine-35350886

Copyright Seán J Crossan, 16 August 2019

Burka bans and horse racing in a Hijab

Photo by أخٌ في الله on Unsplash


I have just been reading two, contrasting stories
about Islamic dress codes which appeared in today’s UK media.

The first story comes from our close neighbour and EU partner, the Netherlands which has decided to bring in a new law banning certain forms of Islamic dress – principally the Burka, Hijab and the Niqab – from being worn by female Muslims in hospitals and schools and while travelling by public transport. This ban imitates similar initiatives in other EU member states such as Austria, Denmark, France and Germany. Those individuals who ignore or flout the ban run the risk of being fined €150. Some Dutch politicians, for example, Geert Wilders of the far right Party for Freedom would like the law to be extended in order to ban Islamic headscarves.

The second story comes from the UK and couldn’t be more different in tone. The BBC reports that a female, Muslim jockey, who wears the Hijab, has made history by winning the Magnolia Cup at Glorious Goodwood.

Links to the two stories can be found below:

http://news.sky.com/story/netherlands-burka-ban-comes-into-force-in-schools-hospitals-and-on-buses-11774887

Khadijah Mellah: Hijab-wearing jockey triumphs on Haverland and makes history

These two stories made me think about the limits of tolerance in relation to the outward signs of religious belief in our communities. Under UK and EU laws, a person’s religion is a protected characteristic and s/he has the right not to be subjected to unlawful, less favourable treatment (discrimination).

The right to enjoy protection from religious discrimination was first introduced to the mainland UK as a result of the EU Directive 2000/78/EC on Equal Treatment in Employment and Occupation. The laws on religious discrimination were to be found in the Employment Equality (Religion or Belief) Regulations 2003. It should be noted that the scope of these Regulations was limited in that they applied only to the area of employment – not, for example, the provision of goods and services.

Previously, Northern Ireland was the only part of the UK which had laws on religious discrimination – for understandable reasons given the troubled history of that part of the world. The Regulations did not extend to Northern Ireland because it already had laws in place to deal with this issue.

The Regulations have now been superseded by the provisions of the Equality Act 2010 (primarily Section 10) which are much wider in scope in that they cover both religious discrimination in employment and the provision of goods and services.

Additionally, Article 22 of the EU’s Charter of Fundamental Rights recognises a person’s right to cultural and religious diversity.

Wearing Islamic dress is obviously a way in which very religious members of this community can express their religious beliefs. Reading both articles today, I found myself asking the question what would be the legal effects if a similar ban on Islamic dress was introduced in the UK?

The new UK Prime Minister, Boris Johnson, has made disparaging remarks about forms of Islamic dress, but admittedly he does not seem willing to introduce a ban.

Countries such as Austria, Denmark, France, Germany and now the Netherlands are just as much bound by laws such as Directive 2000/78/EC and the Charter of Fundamental Rights as the UK is at the time of writing, so how do they justify banning certain forms of Islamic dress?

Freedom of religion is not absolute and sometimes the State can decide that a person’s religious beliefs must take second place if they clash with other people’s human rights (e.g. sexual orientation) or general public safety goals. In the UK, discrimination less favourable treatment in connection with a person’s protected characteristics may be permitted under the Equality Act 2010 if it can be objectively justified i.e. it is a proportionate means of achieving a legitimate aim. Health and safety or concerns about terrorism are often grounds used by States across the EU to justify periodic crackdowns on the wearing of Islamic dress in public places.

Copyright Seán J Crossan, 1 August 2019

(In)Equality in the EU?

Photo by Markus Spiske on Unsplash

Have member states of the European Union made progress this last year in the protection of minority groups?

It would seem that the answer to this question is not particularly straightforward if you read the EU’s Fundamental Rights Report 2019.

Michael O’Flaherty, Director of the EU’s Fundamental Rights Agency presents a fairly gloomy picture across Europe:

Fundamental rights alarm bells are ringing across the EU as inequalities, harassment and prejudices continue to grow. … We need robust responses outlining how rights benefit us all and provide the answers to the inequalities that are holding us back from a fair and just society where everyone can prosper.”

Across the EU, there are Governments in power (Hungary and Italy particularly) which promote strongly anti-immigrant messages. Until recently, the far-right Freedom Party was part of the coalition government of former Federal Chancellor Sebastian Kurz in Austria. In France, Germany and Spain, we have witnessed rising levels of support for far right parties such as the Front National, AfD and Vox respectively.

Other European countries have witnessed similar trends and did well in the recent European Parliament elections in May 2019.

We are not immune from such trends in the UK with many people being suspicious of the motivations of the Brexit Party and UKIP (despite denials to the contrary by the leaderships of these organisations that they are not far right movements).

In essence, the conclusions of the Fundamental Rights Report 2019 are as follows:

  • The levels of racial discrimination and harassment across the EU remain stubbornly high e.g. Black, Jewish and Roma people continue to report discrimination and harassment in their daily lives;
  • A significant percentage of Europeans (40%) consider immigration to be a problem and these individuals over-estimate the levels of (actual or true) immigration to the EU;
  • The number of children in poverty has decreased, but at 25% this figure is a still a cause for concern with certain groups (Roma children) being particularly affected.

A link to the Fundamental Rights Report 2019 can be found below:

https://fra.europa.eu/en/publication/2019/fundamental-rights-2019

Copyright Seán J Crossan, 10 June 2019

Social media and dismissal

Photo by Alex Haney on Unsplash

Regular readers of this Blog will know that I have written several articles over the last few months about the legal consequences of social media (mis)use and the effects on relationships in the work place. Comments or images posted on social media by employees can have serious reputational consequences for their employers.

The Israel Folau case

In a blog published on 11 April 2019 (Social Media Misuse), I discussed the story about Israel Folau, the Australian rugby player who had posted homophobic comments on social media. Folau has now been dismissed by Australia for these remarks.

Please see a link to the story on the Sky News website:

Israel Folau: Australian rugby star sacked over anti-gay social media post
http://news.sky.com/story/israel-folau-australian-rugby-star-sacked-over-anti-gay-social-media-post-11721930

The employer must, of course, be able to prove reasonably that the employee’s misuse of social media will cause it to suffer reputational damage.

In Taylor Somerfield Stores Ltd ETS/107487/07 an employee was dismissed after posting a video on Youtube which involved a mock fight using Somerfield carrier bags in the work place. The video was uploaded to Youtube for a mere 3 days and only 8 people had viewed it – 3 of whom were managers conducting the disciplinary investigation. The Employment Tribunal was firmly of the view that the dismissal was unfair because the employer was not able to prove that it had suffered serious reputational damage.

As I have emphasised in previous blogs, employees will be very naive if they think that it is a competent defence to say that the social media posts occurred outside working hours. Employers are still very much entitled to treat such behaviour as an example of a breach of work place discipline. In serious cases of social media misuse, employers will be entitled to consider dismissal of employees on the grounds of misconduct (as per Section 98(4) of the Employment Rights Act 1996).

Admittedly, this area represents something of a tightrope for employers to walk: they will have to operate a clear and comprehensive social media policy and employees must be made aware of any restrictions or expectations.

In the unreported Employment Tribunal decision of Grant and Ross Mitie Property Services Ltd (2009), the employer had a policy which restricted employee internet access. Unfortunately, for the employer, the phrase which permitted employee’s personal use of the internet to times that were “outside core working hours”, was deemed by the Tribunal to be ‘vague’ and lacking in certainty. This meant that the employees who had been dismissed because the employer was of the view that they had breached its policy on internet use had been unfairly dismissed.

There is also the matter of the rights that employees reasonably have to privacy and freedom of expression (as per their Article 8 and 10 rights respectively to be found in the European Convention, the Human Rights Act 1998 and the Scotland Act 1998) (see Bărbulescu v Romania Application no. 61496/08 5 September 2017; and Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch)).

I have also pointed out in previous blogs, the importance for employers in carrying out disciplinary proceedings which comply with current ACAS Guidance. Using the (current) ACAS Guidance is a critical risk management exercise for employers:

https://beta.acas.org.uk/investigations-for-discipline-and-grievance-step-by-step

Employers who act recklessly or swiftly and ignore proper procedures may well have cause to regret their actions down the road. As Sir Robert Megarry VC, the eminent English judge, remarked decades ago in John Rees [1970] 1 Ch 345:

When something is obvious, they may say, why force everyone to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard?As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; …

The above remarks are as valid in 2019 as they were in Sir Robert Megarry’s day.

Atherton v Bensons Vending Ltd ET/2411749/2018

This is a recent decision of the Manchester Employment Tribunal which raises some very interesting issues about employee use of social media specifically and the conduct of disciplinary proceedings more generally.

Darren Atherton (aged 55) worked for Bensons Vending Ltd, a small company. As a result of his employer making changes to its discretionary Christmas bonus scheme, Atherton made some very negative comments about the company’s Managing Director, Ken Haselden via a colleague’s Facebook page:

Comment 1

We’ve all just bought Ken a new dog with our Christmas bonus!!!”

Comment 2

“He spends a few grand on a new dog then we get told ‘no bonus this year’ but we can have a bottle!!! 

Comment 3

“Well, he can stick his bottle where the sun doesn’t shine because I refuse to be insulted in this way!!!

Atherton’s colleague, Simon Minshull had initially objected to the changes to the bonus scheme by posting comments on his Facebook page:

Comment 1

Just when you thought staff morale couldn’t get any worse, hey f***ing presto #insult #disgusted.”

Comment 2

The only difference between McDonalds and where I work is McDonalds has only one clown running the show.” (This second comment was accompanied by a picture of Ronald McDonald).

The changes to the bonus scheme were part of a cost cutting and efficiency savings exercise by the company and, from any reading of the above comments, Atherton and Minshull clearly disagreed with this new approach by their employer.

Negative remarks about the Managing Director were also made by Atherton and another colleague in the workplace. Several colleagues informed Haselden about these remarks stating that they had been very aggressive and vitriolic in nature.

Atherton’s colleague, Simon Minshull, was subsequently questioned about the posts on his Facebook account by Haselden. Minshull stated that he did not agree with them – they were Atherton’s opinions – and he apologised for any offence caused to Haselden. He was later suspended for the Facebook posts, but critically this suspension was lifted in the light of his swift apology to Haselden (and the fact that it was established that he had not made these comments). Minshull was permitted to return to work upon the conclusion of the disciplinary proceedings against him.

Atherton was called to a meeting with Mr Haselden in December 2017 to address the allegations which had been made against him and to investigate the social media posts. This was not a disciplinary meeting, but more in the way of an investigatory meeting. The actual disciplinary meeting took place in January 2018.

Dismissal without notice pay

The outcome of the disciplinary meeting was that Atherton should be dismissed without notice pay for gross misconduct in terms of Section 98(4) of the Employment Rights Act 1996. This was despite the fact that Atherton had a clean disciplinary record (until now) and had enjoyed a good relationship with his employer. Atherton’s comments on Facebook were “extremely derogatory” and Mr Haselden stated that he would find it “extremely difficult” to continue working with him. Atherton appealed against his dismissal, but the decision was upheld.

The fairness of the disciplinary proceedings

As part of his claim against the employer, Atherton challenged the fairness of the disciplinary proceedings taken against him. In particular, he objected to the fact that Haselden conducted the disciplinary meeting against him. Atherton’s contention was that he would not receive a fair hearing because Haselden was personally involved in the matter and, therefore, could not be relied upon to act objectively. This type of issue frequently arises where smaller employers are concerned. In an ideal world, a manager (such as Haselden) who has been involved personally in an issue involving alleged breaches of work place discipline should not be a participant in the disciplinary panel. This is, of course, easier in practice to ensure in larger organisations where there is a pool of experienced managers who will have had no personal involvement in the matter (or in other words: a particular axe to grind).

The appeals process

In situations involving smaller employers, this is where the appeals process takes on a critical significance. Appeals can often be used to cure actual or perceived defects in the conduct of the original disciplinary meeting. Although Haselden (with two others – an operations manager and a company engineer) had conducted the disciplinary meetings, he had not involved himself in the actual appeals hearing. This part of the company’s disciplinary procedure had been conducted by a Ms Pedley, a trained auditor and, as stated, above, Atherton’s dismissal was upheld.

At this point, Atherton also raised the difference in treatment between himself and Simon Minshull (who had kept his job after disciplinary proceedings against him had been concluded). Pedley refused to comment on individual cases on the grounds of confidentiality. She stated in her letter to Atherton upholding the dismissal that:

Length of service and clean disciplinary record are taken into consideration during all grievance procedures. However, given the
nature of the comment and the reluctance to remedy the grievance the
relationship between yourself and senior management has broken down
irretrievably”.

The Employment Tribunal’s decision

The Tribunal held that Atherton had been fairly dismissed in terms of Section 98(4) of the Employment Rights Act 1996.

He had made extremely derogatory comments via Facebook about Haselden. They were “personal” and they suggested “some impropriety” on Mr Haselden’s part (though more in the nature of “penny-pinching impropriety” suggesting Scrooge like behaviour rather than any financial misdeeds). Any member of the public who knew the company and reading Atherton’s comments on Simon Minshull’s Facebook site, would have a very negative view of Haselden. It was accepted by the Tribunal that Haselden would, therefore, potentially suffer reputational damage. It was also accepted that in a small company, it would be very difficult for Atherton and Haselden to work with one another again (the employment relationship had irretrievably broken down).

The Tribunal also addressed Atherton’s claim that the disciplinary procedure had been biased or lacking in objectivity because of Haselden’s involvement in the decision to dismiss him from employment. This indeed could have been a problem for the employer and may have prejudiced proceedings against Atherton. That said, however, the saving grace for the employer was the fact that Ms Pedley had been kept in reserve for an appeal hearing.

The Employment Tribunal Judge made the following observations about Pedley’s involvement in the appeal stage:

Ms Pedley is by profession an auditor and had clearly gone through the matters in great detail. Notes (page 95 and onwards) show how she dealt with the matter. … Because of that safeguard of the deployment of Ms Pedley, who I am satisfied went about her task objectively and exhaustively and independently, although regrettably for the claimant she came to the same conclusion, I am not satisfied that the determination by Mr Haselden at the dismissal stage rendered the dismissal unfair. The appeal was thorough, it was a re-hearing. Ms Pedley considered all the points that were being raised and came, I am satisfied, to an independent conclusion.”

As for the difference in outcomes between Atherton and Simon Minshull, a key justification for this was that Minshull had “apologised shortly after being challenged regarding his Facebook comments even though he had been suspended.” This was something that Atherton had failed to do – apologising only at the disciplinary meeting in January 2018. Furthermore, it was significant that the nature of Atherton’s comments were specifically directed against Haselden, whereas Minshull’s comments (although also negative) were much more generalised.

The failure to pay notice pay

This was an aspect of the employer’s decision that the Employment Tribunal disagreed with. Atherton, therefore, had a right to receive his entitlement to notice pay. In this sense, he had been wrongly dismissed by his employer. The Employment Tribunal judge stated very clearly that in order for an employee to lose his entitlement to notice pay there the employer must be able to demonstrate that the gross misconduct complained of crosses over a “very high hurdle”. In the judge’s opinion, the employer had not been able to overcome this hurdle and, therefore, Atherton was entitled to claim notice pay.

A link to the Employment Tribunal’s judgement in Atherton Bensons Vending Ltd can be found below:

https://assets.publishing.service.gov.uk/media/5c4712dfe5274a6e6b6716e1/Mr_D_Atherton_v_Bensons_Vending_Limited_-_2411749_2018_-_Reasons.pdf

Conclusion

What have we learned about the decision of the Employment Tribunal in Atherton Bensons Vending Ltd?

Quite a lot actually:

  1. Employees will have to be extremely careful when posting material or comments on social media platforms – irrespective of whether this is about the employers or not.
  2. The case is yet another good example that misconduct committed inside or outside the work place or working hours can have reputational consequences for the employer. It can also lead to relationships in the work place breaking down irretrievably (especially in smaller organisations).
  3. Employers do not have a free hand to police employee use of social media. There must be clear guidelines laid down by the employer as to what constitutes acceptable and appropriate behaviour. At the same, employees have reasonable expectations that their rights to privacy and expression (as per the European Convention on Human Rights) will be upheld.
  4. The conduct of disciplinary proceedings by the employer is a critical issue. We have noted that potential conflicts of interest can occur in smaller employers or organisations where a manager can be investigator, dismissing officer and appeals officer. How does the employer address these issues and ensure objectivity in the disciplinary process?
  5. As with Atherton and Minshull, the employer was entitled to treat them differently: Atherton was dismissed while Minshull retained his job. There was nothing inconsistent or inherently unfair about this when the personal circumstances and behaviour of the two employees was examined.
  6. Finally, even in situations where gross misconduct has been proved by the employer, and the dismissal is deemed to be fair (in terms of Section 98(4): Employment Rights Act 1996), it will not necessarily mean that the employee loses his or her right to notice pay. The employer will have to overcome an extremely high hurdle in order to be entitled to invoke such a disciplinary sanction. As we have seen in Atherton, the Tribunal was not convinced that the employer had been able to prove that this was an appropriate punishment: the dismissal was fair; the failure to pay notice was not.

Copyright Seán J Crossan, 20 May 2019

I’m a prisoner, I want to vote!

Photo by kyryll ushakov on Unsplash

In one of my first blogs (The problem with human rights … published on 1 February 2019), I discussed the problematic nature of this area – especially when individuals who have been less than law abiding, upright citizens are attempting to argue that they deserve to have their human rights respected.

In that previous blog, I focused on people such as John Hirst (convicted for manslaughter in England); Abu Qatada (a radical Islamic preacher who promoted Jihad); and Anders Brevik (the Norwegian mass murderer); who had all pursued legal actions in terms of the European Convention on Human Rights.

See:

  •  Hirst v United Kingdom (No. 2) (2005) ECHR 681
  •  Othman (Abu Qatada) vUK (Application No. 8139/09) 12 January 2012
  • Hansen (formerly known as Anders Breivik) v Norway (Application No. 48852/17) 26 June 2018)

As I often remark to my students, people such as those listed above are not ideal ‘poster boys’ if you were going to run a marketing campaign to promote greater awareness of human rights in Scotland.

This year (in Scotland) marks the twentieth anniversary of the implementation of the European Convention via the Scotland Act 1998 (in 2000, the Convention was further implemented across the UK as a result of the introduction of the Human Rights Act 1998).

I doubt very much that supporters of the system of human rights protection will wish to dwell too long on those difficult cases involving murderers, terrorists, paedophiles etc. It rather tends to undermine the whole basis of human rights or, in other words, it’s a very difficult sell.

Yet the difficult cases keep on coming and certainly make this area a constant source of fascinating debate and argument about the rights and wrongs of human rights. They also tend to drive home very forcefully the notion that human rights is a contested concept. Not everyone agrees what should be protected or who should be protected.

In 2000, the former Scottish judge, Lord McCluskey was highly critical of the introduction of human rights to the legal system. As far back as 1986, he had made the following remarks (in his Reith Lectures) about Canada implementing its Charter of Rights and Freedoms, which was based on the European Convention. In his opinion, this would lead to:

a field day for crackpots, a pain in the neck for judges and legislators, and a goldmine for lawyers.

His Lordship would make the point that the above remarks applied equally to the then Labour Government’s decision to implement the European Convention directly into the legal systems of the United Kingdom.

Whether Lord McCluskey came to regret making these remarks publicly, we can only speculate. They did, however, come back to haunt him when counsel for a number of appellants before the Appeal Court of the High Court of Justiciary argued that Lord McCluskey (and his fellow judges) should be removed from further participation in an appeal which relied very heavily on human rights arguments, in particular, the right to a fair trial under Article 6 of the Convention (see Hoekstra & Others v Her Majesty’s Advocate [2000] ScotHC 11).

John Hirst

When Andrew Neil, the well known journalist, questioned John Hirst about prisoners being given the right to vote in elections being held in the UK, he was less than subtle when he ran through Hirst’s charge sheet on the BBC’s Daily Politics Show in 2010.

Even instinctive supporters of human rights would have found it very difficult (emotionally speaking) to sympathise with Hirst’s position that the right to vote is a human right and this should be extended to those serving prison sentences.

If you want to be reminded of how awkward an interview this was, please click on the link below:

A persistent problem

The spark ignited by John Hirst smoulders on. Amazingly, we are still talking about the issue in 2019. Last month, the European Court of Human Rights (not to be confused with the EU’s Court of Justice), ruled against the UK for failure to implement its earlier decisions which came down firmly on the side of prisoners. Although the UK was found to be in breach of the European Convention, the European Court of Human Rights decided not to award compensation to those prisoners who brought the claim.

The case in question is Miller & Others v UK 11 April 2019 (Application No 70571/14) and the European Court of Human Rights is effectively declaring that UK electoral legislation does not comply with the European Convention.

Article 3 of Protocol No. 1 of the European Convention states that the signatories or High Contracting Parties (i.e. those countries, including the UK, which have signed the Convention):

… undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

All of the prisoners involved in this application were alleging that the UK was in breach of the above provision when they were denied the right to vote in one or more of the following elections: the European Parliament elections on 22 May 2014; the elections to the Scottish Parliament on 5 May 2016; and the UK General Election on 8 June 2017. 

Section 3 of the Representation of the People Act 1983 is the relevant legislation in this area. It states that:

A convicted person during the time that he is detained in a penal institution in pursuance of his sentence … is legally incapable of voting at any parliamentary or local government election.”

The above provision is known colloquially as the ‘blanket ban’ i.e. anyone convicted of a crime and imprisoned automatically loses (or forfeits) the right to vote. This is part of the convicted person’s punishment.

A link to the European Court’s judgement in Miller & Others v UK can be found below:

https://hudoc.echr.coe.int/tur#%22itemid%22:%5B%22001-192216%22%5D

As the supreme legislative body of the United Kingdom, it is up to the Westminster Parliament to rectify this situation – if it so chooses.

A political fudge

Since John Hirst won his case in 2005, successive UK Governments and Parliaments have fudged the issue. This whole area is a political hot potato because many politicians (irrespective of Party allegiance) are well aware of the dangers of standing up for the rights of prisoners. If advertising executives find it difficult to promote human rights using the inhabitants of UK prisons as exemplars, think how much more difficult it would be for politicians. They are extremely risk averse in these days of electoral volatility and they most certainly do not want to put their heads above the parapet to campaign for the rights of prisoners to be upheld. I suspect that many politicians would rather give a straight answer regarding their position raising taxes or cutting vital public services in order to avoid this particular, poisoned chalice.

Most politicians seeking re-election would not wish their opponents to level an accusation against them that they were soft on crime. Expect this story to keep on running.

Conclusion 

We have been well aware for some time that the so called blanket ban on serving prisoners being denied the right to vote is a breach of the European Convention. Put simply, this provision in the Representation of the People Act 1983 is incompatible with the UK’s obligation to uphold and protect human rights.

The consequences of declaring UK parliamentary legislation incompatible with the European Convention on Human Rights can be fully appreciated if we refer to the UK Supreme Court’s decision in R (Nicklinson) Ministry of Justice (CNK Alliance Ltd intervening) [2014] UKSC 38:

An essential element of the structure of the Human Rights Act 1998 is the call which Parliament has made on the courts to review the legislation which it passes in order to tell it whether the provisions contained in that legislation comply with the Convention. By responding to that call and sending the message to Parliament that a particular provision is incompatible with the Convention, the courts do not usurp the role of Parliament, much less offend the separation of powers. A declaration of incompatibility is merely an expression of the court’s conclusion as to whether, as enacted, a particular item of legislation cannot be considered compatible with a Convention right. In other words, the courts say to Parliament, ‘This particular piece of legislation is incompatible, now it is for you to decide what to do about it.’ And under the scheme of the Human Rights Act 1998 it is open to Parliament to decide to do nothing.”

Copyright Seán J Crossan, 1 May 2019

Private Enterprise or Public Service?

Photo by Matthew Ansley on Unsplash

The provisions of the European Convention on Human Rights (as implemented by the Human Rights Act 1998 and the Scotland Act 1998) are only enforceable against the British State or its institutions and organisations that carry out public functions, for example, universities, care homes, colleges, hospitals, housing associations, schools and local authorities.

It should be noted that a public authority or emanation of the State can have a very wide meaning in law and may cover privatized utilities companies (see Case C-188/89 Foster v British Gas [1990] 3 ALL ER 897 and Griffin v South West Water Services Ltd [1995] IRLR 15) and other private contractors delivering public services.

A recent example of a private sector company falling foul of human rights legislation occurred in the following English High Court judgement: Between LW; Samantha Faulder; KT; MC v 1) Sodexho Limited and 2) Minister of Justice[2019] EWHC 367.

The facts of the case are as follows:

Her Majesty’s Prison Peterborough is run by Sodexho, a private company, but the UK Government’s Ministry of Justice is ultimately responsible for the running of the institution. The case arose because four inmates at the prison alleged that, in 2017, they had been subjected to strip searches which had breached their human rights, namely:

Article 3 – prohibition of torture and cruel and degrading treatment

Article 8 – the right to respect for private and family life

The English Court of Appeal had ruled in a previous decision – R (LD, RH and BK) v Secretary of State for Justice [2014] EWHC 3517 – that strip searches could represent breaches of Articles 3 and 8. In the present case, however, the High Court stated that there was no conclusive evidence that the strip searches represented a breach of Article 3. That said, the manner of the searches did represent a breach of Article 8.

Conclusion

This ruling is a salutary warning to private contractors carrying out public service contracts that they must be aware of human rights considerations. Companies such as Sodexho, Group 4 and Serco are and have all been involved in carrying out contracts in relation to the criminal justice system whether running prisons or transporting prisoners to and from court hearings. Ultimately, the (Scottish or the UK) Government will have responsibility for the manner in which operations are conducted by these companies because the contracts are deemed to benefit the public in the wider sense.

A link to the High Court’s judgement can be found below:

https://www.bailii.org/ew/cases/EWHC/Admin/2019/367.html

The case was widely reported in the UK media and a link to the story on the BBC website can be found below:

https://www.bbc.co.uk/news/uk-england-cambridgeshire-47334760

Copyright – Seán J Crossan, 1 March 2019

Love and marriage?

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Photo by Drew Coffman on Unsplash

Love and marriage, love and marriage
They go together like a horse and carriage
This I tell you, brother
You can’t have one without the other

(Songwriters: James Van Heusen / Sammy Cahn
Love And Marriage lyrics © Warner/Chappell Music, Inc, Concord Music Publishing LLC)

So sang Frank Sinatra for the first time in 1955, but do love and marriage go together like a horse carriage? In 2019, some people (heterosexual couples) would beg to differ, instead preferring to opt for a civil partnership arrangement.

In Chapter 7 of Introductory Scots Law, it was noted that, according to Section 8 of the Equality Act 2010, a person has the protected characteristic of marriage and civil partnership if the person is married or is a civil partner.

In 2004, the UK Parliament passed the Civil Partnerships Act 2004, which came into force on 5 December 2005 and permitted same sex couples to enter into legally binding relationships. It should be recalled that the Scottish Parliament gave its consent to the Westminster Parliament to pass this Act for Scotland too.

This legislation also extended the same employment benefits that married couples already enjoyed to same sex couples who entered a civil partnership. In relation to the field of employment rights, the Act applies to employment and pension benefits e.g. a concessionary travel scheme and civil partners of an employee will be entitled to take advantage of these if existing provisions permit a heterosexual partner or spouse of an employee to claim these benefits.

In Bull and Another v Preddy and Another [2013] UKSC 73, UK Supreme Court Justice, Baroness Hale made the following remarks about civil partnerships:

“Civil partnership is not called marriage but in almost every other respect it is indistinguishable from the status of marriage in United Kingdom law. It was introduced so that same sex couples could voluntarily assume towards one another the same legal responsibilities, and enjoy the same legal rights, as married couples assume and enjoy. It is more than a contract. Like marriage, it is a status, in which some of the terms are prescribed by law, and which has consequences for people other than the couple themselves and for the state.”

Since the Supreme Court judgement in Bull and Another v Preddy and Another [2013], the debate has moved on and the UK Parliament passed the Marriage (Same Sex Couples) Act 2013 (which applies to England and Wales) and, in Scotland, the Scottish Parliament passed the Marriage and Civil Partnerships (Scotland) Act 2014.

Both pieces of legislation now permit same sex couples to enter civil i.e. non-religious marriages. Some Christian denominations, for example, the Church of Scotland, the Quakers (or the Society of Friends) and the Scottish Episcopal Church permit their ministers of religion to officiate at same sex marriage ceremonies, but some denominations do not (for instance, the Roman Catholic Church and the Orthodox Churches) which continue to emphasise the traditional view that a marriage is between a man and a woman.

Northern Ireland is the only region in the United Kingdom which currently does not permit same sex couples to enter marriages – although civil partnership is permitted. Readers of a previous blog entry (The ‘Gay Cake’ row) will be aware of this situation.

Heterosexual couples and civil partnerships

Interestingly, however, heterosexual couples were not permitted to enter civil partnerships as a more, modern alternative to marriage. Traditional marriage between a man and woman has been criticised on a number of grounds:

  • It’s seen as very patriarchal i.e. historically it unduly favours the male partner
  • It has religious associations which are not in keeping with the fact that the UK is (in 2019) a much more secular society
  • Some heterosexual couples are increasingly attracted to a more equitable and modern form of legal commitment i.e. civil partnership.

Despite these criticisms of traditional marriage, neither the UK or Scottish Governments have shown a desire to extend civil partnerships to heterosexual couples. That is until very recently and a UK Supreme Court decision has now made reform of the institution of marriage and civil partnership essential on the basis of a human rights challenge.

The case which started the ball rolling was Steinfeld and Keidan v Secretary of State for Education [2016].

In Steinfeld and Keidan, an unmarried, heterosexual couple brought a claim for unlawful less favourable treatment against the UK Government on the basis that the law (contained in the Civil Partnership Act 2004)  discriminated against them by forcing them to enter marriage as opposed to their preferred option of a civil partnership arrangement. The couple had strong “ideological objections” to marriage (irrespective of whether it took a religious or civil form) and argued, amongst other things, that the failure by the United Kingdom to give them the option of entering a civil partnership was a potential breach of their Article 8 rights (the right to privacy and family life) in terms of the European Convention on Human Rights.

Held: by the English High Court that the claim should be dismissed. Mrs Justice Andrews stated in very strong terms that:

“The alleged interference by the state with their right to private life by denying them the right to enter a civil partnership is even more tenuous. There is no evidence that they are subjected to humiliation, derogatory treatment, or any other lack of respect for their private lives on grounds of their heterosexual orientation by reason of the withholding of the status of civil partners from them.”

The UK and Scottish Governments had shown absolutely no inclination to extend the civil partnerships legislation to heterosexual couples. If anything both Governments had prioritised the extension of marriage to same sex couples and Mrs Justice Andrews then went on to observe that:

In my judgment the question whether maintaining the discrimination complained of is justified must depend upon the specific context. Here, the decision is to wait and see how the extension of marriage to same-sex partners affects civil partnerships before determining what to do about them. At present there is no clear evidence as to how civil partnerships are likely to be affected by extending marriage to same-sex couples and no clear social consensus on what their future should be (as the outcome of the two consultations demonstrates). However the figures that have emerged since March 2014 indicate that there has been a sharp decline in the number of civil partnerships formed in England and Wales compared to 2013, with a corresponding increase in the number of marriages of same-sex couples. In a consultation by the Scottish Government on Review of Civil Partnership dated September 2015, the statistics relating to jurisdictions where both marriage and civil partnerships are available to same sex and opposite sex couples (the Netherlands, New Zealand, and Hawaii) indicate that the vast majority of couples prefer marriage – in New Zealand in 2014 only 0.3% of the couples opted for civil partnership. In Scotland itself, after civil marriage was introduced for same-sex partners, there were only 8 civil partnerships registered in the second quarter of 2015, a decline of 94% from the previous year.”

The English Court of Appeal

This was not the end of the matter: Steinfeld and Keidan were permitted to appeal to the English Court of Appeal against Mr Justice Andrews’ decision (Steinfeld and Keidan v Secretary of State for Education [2017] EWCA Civ 81). The Court of Appeal strongly objected to and unanimously rejected the notion that the case did not involve a potential breach of Articles 8 of the European Convention (not to say a potential breach of Article 14: the prohibition against discrimination).

That said, however, Lord Beatson (in dismissing the couple’s claim) went on to state:

In my view, at present, the Secretary of State’s position is objectively justified. The future of the legal status of civil partnerships is an important matter of social policy that government is entitled to consider carefully. At the hearing the Secretary of State’s approach was described as a ‘wait and see’ approach, although it would be more accurate to describe it as a ‘wait and evaluate’ approach. Whatever term is used to describe the approach, it would not have been available to the Secretary of State prior to the enactment and coming into force of the 2013 Act. This is because it would not have been possible at that time to determine how many people would continue to enter into civil partnerships or want to do so because they share the appellants’ sincere objections to marriage. The relevant start date for consideration is thus 13 March 2014 when the provisions extending marriage to same sex couples came into force.”

His colleague, Lord Justice Briggs stated:

I can well understand the frustration which must be felt by the appellants and those different sex couples who share their view about marriage, about what they regard as the Government’s slow progress on this issue. Some couples in their position may suffer serious fiscal disadvantage if, for example, one of them dies before they can form a civil partnership. This is a factor in the proportionality balance, and because this is a case of differential treatment on the basis of sexual orientation, that balance must command anxious scrutiny. But against the background of a serious but unresolved difficulty which affects the public as a whole, and the practicable impossibility of some interim measure, such as temporarily opening civil partnership to different sex couples when the eventual decision may be to abolish it, I am unable to regard the Secretary of State’s current policy of ‘wait and evaluate’ as a disproportionate response.

The UK Supreme Court

As one might have expected, the UK Supreme Court was to have the final say in the matter.

On 27 June 2018, the Court issued its decision: R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) [2018] UKSC 32.

Lord Kerr gave the leading judgement (with which his fellow Justices concurred) and allowed Steinfeld and Keidan’s appeal:

“I would allow the appeal and make a declaration that sections 1 and 3 of CPA [Civil Partnership Act 2004] (to the extent that they preclude a different sex couple from entering into a civil partnership) are incompatible with article 14 of ECHR taken in conjunction with article 8 of the Convention.”

Conclusion

There we have it: excluding heterosexual couples from the possibility of entering civil partnerships when same sex couples are now legally entitled to enter both marriage and civil partnership represents a breach of Article 8 and Article 14 of the European Convention on Human Rights. This constituted interference with heterosexuals’ right to a private and family life and discrimination on grounds of sexual orientation.

That said, we have to be careful and Lord Kerr very wisely drew attention to the consequences of declaring UK parliamentary legislation incompatible with the European Convention on Human Rights by referring to the Supreme Court’s previous decision in R (Nicklinson) v Ministry of Justice (CNK Alliance Ltd intervening) [2014] UKSC 38:

An essential element of the structure of the Human Rights Act 1998 is the call which Parliament has made on the courts to review the legislation which it passes in order to tell it whether the provisions contained in that legislation comply with the Convention. By responding to that call and sending the message to Parliament that a particular provision is incompatible with the Convention, the courts do not usurp the role of Parliament, much less offend the separation of powers. A declaration of incompatibility is merely an expression of the court’s conclusion as to whether, as enacted, a particular item of legislation cannot be considered compatible with a Convention right. In other words, the courts say to Parliament, ‘This particular piece of legislation is incompatible, now it is for you to decide what to do about it.’ And under the scheme of the Human Rights Act 1998 it is open to Parliament to decide to do nothing.”

So what happens next?

In October 2018, Theresa May, the UK Prime Minister, announced that the Government would amend the Civil Partnership Act 2004 to permit heterosexual couples to enter into civil partnerships as a result of the Steinfield and Keidan decision:

Where does this leave Scotland?

It should, of course, be remembered that the Scottish Parliament (in terms of the Sewel Convention or Legislative Consent Motion) gave its permission to the UK Parliament to pass civil partnership legislation in 2004 for Scotland (the Civil Partnership Act 2004). Family law (including marriage and civil partnerships) is, of course, a devolved matter for the Scottish Parliament in terms of the Scotland Act 1998. The Scottish Parliament was criticised at the time for not legislating in this area of important social policy.

The rather awkward situation for the Scottish Parliament (and Government) is that the legislation which is currently in force in Scotland regulating civil partnerships is incompatible with human rights. As discussed, the UK Parliament can refuse to implement the Supreme Court’s judgement; the Scottish Parliament cannot.

If, post Steinfeld and Keidan, the Scottish Government continued to allow  civil partnership legislation to operate in its original form, there is a very real risk that the Scottish Ministers will be taken to court and challenged by heterosexual couples (using Steinfeld and Keidan [2018]) on human rights grounds.

The solution (for now)?

Letting the status quo prevail in Scotland is not an option because of the implications for human rights, so the Scottish Government announced a public consultation on civil partnerships in September 2018:

This consultation closed on 21 December 2018 and presented two options:

  • Abolishing the option of future civil partnerships for all; or
  • Permitting heterosexual couples to have the option of marriage or civil partnership.

A link to the Scottish Government’s consultation paper can be found below:

Will the solution follow the English/Welsh approach or will Scotland go down a different route?

We await with interest the Scottish Government’s conclusions on the matter. Watch this space.

Copyright Seán J Crossan, February 2019