Approach of religious discrimination Bill is undesirable, says Irish Human Rights and Equality Commission

The Irish Human Rights and Equality Commission has said that the approach of the current Seanad Bill allowing religious discrimination is undesirable, and may continue to leave the State exposed to a breach of its obligations under the European Employment Equality Directive 2000/78.

In a new Recommendation Paper, authored by Marguerite Bolger SC and Claire Bruton BL after examining more than sixty public submissions, the Commission also vindicates six key arguments made by Atheist Ireland to Senators last week about the Bill. These are:

  1. That the policy of the current Government is to protect both atheist and LGBT employees from discrimination, not just LGBT employees.
  2. That the European Employment Equality Directive permits, but does not oblige, Member States to make special provisions for religious institutions.
  3. That the strict restrictions on exemptions should apply to all religious bodies, not just to State-funded bodies, and not just to schools and hospitals.
  4. That any exemptions should be strictly related to objective job requirements, and should be broadly speaking similar to the wording of Article 4.2 of the European Equality Directive.
  5. That the Bill must take account of the rights in the European Convention on Human Rights and the European Charter of Fundamental Rights.
  6. That it is not necessary for the constitutional recognition of freedom of religion within schools to be protected in the absolute fashion that it is by Section 37 of the Employment Equality Act.

The Seanad is currently debating a Bill to change Section 37 of the Employment Equality Act, which gives religious institutions, including schools and hospitals, an exemption from the law, thus allowing them to discriminate against employees in order to protect their religious ethos.

The current Bill would maintain the existing wide-ranging exemptions for religious bodies regardless of their funding, and for religious schools and hospitals that are not funded by the State. It would place new restrictions on the exemptions given to religious schools and hospitals that are funded by the State.

The Human Rights and Equality Commission has now made several specific recommendations for changes to the Bill. Atheist Ireland asks Senators and the Government to:

(i) Implement these recommendations as a minimum, in order to ensure that Ireland is not contravening the strict restrictions on discrimination allowed by Article 4 of the Employment Equality Directive.

(ii) Also move further towards protecting equality than these recommendations, given that Article 8 of the Directive explicitly allows Member States to introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in the Directive.

1. Commitment to protect both atheists and LGBT people

1.1 In the opening line of its letter to the Minister for Justice, the Human Rights and Equality Commission reminds the Minister that:

“In the Programme for Government you committed that ‘People of non-faith or minority religious backgrounds and publicly identified LGBT people should not be deterred from training or taking up employment as teachers in the State’.”

1.2 This is consistent with the State’s obligation under European law to apply human rights principles equally to people with religious and nonreligious philosophical beliefs. We in Ireland are only slowly beginning to realise that atheists and secularists have the same protection as religious believers with regard to these rights.

1.3 But the focus of the current Bill is not to protect atheists from discrimination on the ground of religion or belief. Instead it allows for discrimination against atheists to continue, as long as it is not also used to discriminate against LGBT people.

1.4 Senator Ivana Bacik, who is leading the Labour Senators on the progress of the Bill, has described it on Twitter as “our equality bill to end discrimination against LGBT employees in religious-run schools.” No mention of atheist employees.

1.5 Atheist Ireland campaigns actively for the rights of LGBT people. We welcome any vindication of these rights. We argue that the rights of atheists and LGBT people should be equally respected, and that the Bill should tackle discrimination against both, instead of either alone.

1.6 Also, the Government’s policy extends to protecting employees of minority faith backgrounds. The current Bill does not even do that, other than for minority faith LGBT employees. The Bill therefore undermines freedom of religion rather than protecting it. It also discriminates against the many nominal Catholics who no longer share the beliefs of the Catholic Church.

2. European Directive permits, not obliges, religious exemptions

2.1 The Commission’s Report vindicates the argument by Atheist Ireland that the European Employment Equality Directive permits, but does not oblige, Member States to make special provisions for religious institutions. The Report says:

“6. Article 4.2 of the Framework Directive is permissible rather than mandatory in nature for Member States. However if an exemption or derogation from the general non-discrimination principle on the basis of this Article is provided, then Ireland must conform with the requirements of Article 4.2.”

2.2 In the Seanad debate on 13 March 2013, Ivana Bacik had twice stated that she would prefer a more robust approach, but that Senators had been advised that EU Directive 2000/78 requires a more conservative approach. The two relevant quotes about this advice were:

“We were advised, however, that EU Directive 78/2000 requires a somewhat more conservative approach. Article 4 of that directive gives protection to the right of churches to require individuals working for them to act with “loyalty to the organisation’s ethos”; and
“There is a constraint not only in domestic law but also under EU Framework Directive 78/2000. Article 4 of the directive places constraints on how we can move forward on this, particularly the reference to ensuring “national practice as existing as the date of adoption of the directive”.”

2.3 Based on the Commission’s description, far from placing a constraint on a more robust approach, Article 4.2 of the Directive instead places a constraint on a more conservative approach. The State can either have no exemptions, or else very limited exemptions that must conform with the requirements of Article 4.2. The constraints are on the exemptions, not on the protection.

2.4 Also, Article 8 of the Directive explicitly allows Member States to introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in this Directive.

2.5 We repeat our opinion from last week that, whatever obstacles exist to a more robust approach to protecting equality, they do not come from this Directive.

3. Strict restrictions on exemptions should apply to all religious bodies

3.1 The Commission’s Report vindicates the argument by Atheist Ireland that the strict restrictions on exemptions should apply to all religious bodies, not just to State-funded bodies, and not just to schools and hospitals. The Report says:

“41. The approach of this Bill would create a two tier system of protection, absolving religious institutions (even those in receipt of public funds) from the article 4(2) provisions, and would allow privately funded medical and educational institutions to be bound by section 37.1 as it currently stands. This would, in effect, allow discrimination otherwise prohibited by the act to be lawful.

42. Article 4.2 does not distinguish between private and public institutions, and we are of the view that the approach of this bill is undesirable and may continue to leave the State exposed to a breach of its Article 4.2 obligations.”

3.2 Atheist Ireland said last week to Senators that,

“in a sleight-of-hand, the current Bill only applies the new inadequate restrictions to State-funded bodies, and allows other bodies to continue to discriminate on the basis of the existing law (which contravenes Article 4.2 of the Directive).”

3.3 Rectifying this is the minimum required to protect equality. All religious bodies should be subject to the strict restrictions required by article 4.2 of the Equality Directive, including churches themselves as well as religious schools and hospitals, regardless of whether or not the churches, schools or hospitals are funded by the state.

3.4 Atheist Ireland also argues that the Bill should go further in protecting equality, as is allowed by Article 8 of the Directive. We argue that State-funded bodies should not be allowed to discriminate at all on the ground of religion or belief, and that non-State-funded bodies should be subject to the type of restrictions that the current bill places and state funded bodies.

3.5 Whatever about our ideal of State-funded bodies not being allowed to discriminate at all, the minimum step required to protect equality is that the restrictions on exemptions (required by the Equality Directive) should apply to all religious bodies, not just to State-funded bodies, and not just to schools and hospitals.

4. Exemptions should be strictly related to objective job requirements

The Commission’s Report vindicates the argument by Atheist Ireland that any exemptions should be strictly related to objective job requirements, and should be broadly speaking similar to the wording of Article 4.2. Among other relevant points, the Report says:

“46. We are of the view that the wording of section 37.1 should therefore include the following elements to strike a balance between individual rights and religious freedoms:

(a) Discrimination on grounds of religion or belief would be permissible by an institution (being an educational, medical or religious organisation) with an ethos founded on religion or belief, where adherence to a particular religious belief is a genuine legitimate and justified occupational requirement. This would allow for example that a mosque could legitimately require an Imam to be Muslim.… But would not necessarily permit the same approach to a teacher of a subject with no religious dimension.

Consideration should be given as to whether this would only apply to access to employment, which could be sufficient to satisfy any proportionality requirement as part of a justification test. To allow this discrimination beyond access to employment could be overly broad, although some consideration may need to be given to an employer’s requirements to maintain numbers of employees of a particular religion at a particular level within an organisation.

Some connection between the role and the requirement to be of a particular religion or belief would be necessary. It appears that a test of “genuine legitimate and justified occupational requirement” (as per Article 4.2) is broader in application than the ordinary genuine occupational requirement defence, which requires the occupational requirement to be “determining”. However, the case law cited above from Member States indicates a strict test would be applied to the exemption and there is likely to be a requirement for a connection with the position or role and the religion ethos of the organisation in order for the exemption to apply.

(d) Section 37.1.b The action should only be taken against an employee where there is active and significant undermining in the workplace during the course of employment to the core tenets of the religious belief. Consideration should be given to: (i) whether such undermining could include actions outside of work or unrelated to work activities; (ii) the need to balance the employee’s rights to privacy, as a matter of constitutional law and an ECHR right; (iii) whether the section should be applied (other than in exceptional circumstances and for reasons connected to the employment duties of the employees) to the employee’s personal life outside of work.

(f) The concepts of religious ethos and religious, medical or educational institutions should be defined to clarify the type of institutions involved. The current definition of such institutions (as being under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promote certain religious values) is not sufficiently clear to ensure the certainty which employees and employers are entitled in assessing their legal obligations and entitlements.”

3.2 Atheist Ireland said last week to Senators that:

“(Any exemptions) should allow, for example, religions to employ clerics who share their beliefs, but should not apply to secular jobs such as teacher, doctor or administration worker.”

5. Bill should protect rights in European Convention and Charter

5.1 The Commission’s Report vindicates the argument by Atheist Ireland that the Bill must take account of the rights in European Convention on Human Rights and the European Charter of Fundamental Rights. The Report says:

“20. A number of provisions within the European Convention on Human Rights and the European Charter of Fundamental Rights must also be considered both in terms of the scope of article 4.2 and their importance within Irish law.

Article 9 of the European Convention on Human Rights provides for freedom of religion and conscience along with a restricted and qualified right to manifest religion and beliefs in “worship, teaching, practice and observance.” Article 10 of the Charter of Fundamental Rights prescribes the right of freedom of thought, conscience and religion, the right to manifest religion or belief, and the right to conscientious objection is is recognised in accordance with national laws governing the exercise this right.

Footnote 17: Article 6 of the Treaty on the Functioning of the European Union recognises that the EU should “recognise fundamental rights as guaranteed by the European Convention on Human Rights”. The Charter is now attached to the TFEU has the same legal value of all preceding and current treaties. See also the European Convention on Human Rights Act 2003.”

5.2 Atheist Ireland highlighted last week to Senators that, if a Member State does avail of the option to allow restricted discrimination, any national Constitutional factors must be considered alongside the general principles of Community law, including from the Convention and Charter of Rights. These principles include (see our last document for details and sources):

  • Any direct or indirect discrimination based on religion or belief should be prohibited throughout the Community;
  • The Union respects equally religious and nonreligious philosophical bodies, and secularism is a ‘philosophical conviction’ that must be respected;
  • Freedom of thought, conscience and religion is as precious to atheists, agnostics, skeptics and the unconcerned as it is to religious people;
  • Excessive involvement of religious authorities from one community in decisions that affect the rights of those belonging to another community may itself amount to a violation of the right to freedom of religion or belief.

5.3 Specifically, we argued that the Bill discriminates disproportionately against atheists, and is contrary to the Charter of Fundamental Rights of the European Union.

6. Irish Constitution does not require the existing discrimination

6.1 The Commission’s Report vindicates the argument by Atheist Ireland that it is not necessary for the constitutional recognition of freedom of religion within schools to be protected in the absolute fashion that it is by Section 37. The Report says:

“17. Significantly in the Article 26 reference, the Supreme Court did not hold that religious discrimination was permissible from a Constitutional perspective, but rather that was permissible in certain circumstances: “insofar – but only insofar – as this may be necessary to give life and reality to the guarantee of free profession and practice of religion contained in the Constitution”. Therefore the application of the judgement of the Supreme Court may not be as encompassing as some may suggest.

18. The above case law is now subject to the provision of Article 4.2 of the Directive, given the supremacy of European law in the Irish legal order.…

As an exemption to the general principle of nondiscrimination within employment and occupation, article 4.2 imports the principle of proportionality to the balance of the right to equality and freedom of religion which interact and conflict in certain circumstances.…

It is not necessary for the constitutional recognition of religious freedom within schools to be protected in the absolute fashion it is by section 37.1.a…

19. Therefore the protection and freedom of religion is present in Article 4.2 of the Directive, albeit not in as broad a manner as the constitutional judgement cited above. Article 4.2 allows for the protection of religious freedom but not in the breadth referred to by the Supreme Court in the article 26 reference. There is a requirement for proportionality by virtue of article 4.2 within any objective justification of any criteria applied ostensibly pursuant to section 37 to protect religious freedom.

This appears to also have been envisaged by the Supreme Court in its Article 26 judgement in spite of upholding as constitutionally permissible the lower standard of justification for action taken by employers captured by section 37. Article 4.2 bolsters the general right to equality, as the Irish constitutional provision on equality provides very limited protection in the context of employment equality law.”

6.2 Atheist Ireland said last week to Senators that:

“The Irish Supreme Court examined the current law when the Employment Equality Bill 1996 was referred to it under Article 26 of the Constitution. The Supreme Court found that it was a reasonable balancing in legislation of the different rights involved, including, chiefly, the right to earn a living and the rights to freedom of religion and association.

The Supreme Court found that the 1996 Bill was not repugnant to the Constitution. But this does not mean that it was required by the Constitution. Indeed, the very fact that this Bill is being considered shows that the current Act is not required by the Constitution.”

7. Summary

The Human Rights and Equality Commission has now made several specific recommendations for changes to the Bill. Atheist Ireland asks Senators and the Government to:

(i) Implement these recommendations as a minimum, in order to ensure that Ireland is not contravening the strict restrictions on discrimination allowed by Article 4 of the Employment Equality Directive.

(ii) Also move further towards protecting equality than these recommendations, given that Article 8 of the Directive explicitly allows Member States to introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in the Directive.

Michael Nugent