The reason that the regulations concerning sexual orientation and religion and belief will cause so many thorny problems is that the latter may well protect opinions and points of views (what else is a religion or philosophical belief?) that are rather strongly against the practice and free expression of the former.
The Times reports that a worker at a Christian hostel in Southampton was asked his views on homosexuality in a conversation with a colleague. His reply, that he was opposed to same-sex marriages and to homosexual clergy but he was not homophobic and had homosexual friends, earned him a suspension for “promoting [his] religious views which contained discriminatory comments regarding a person’s sexual orientation. The action was apparently to “to safeguard both residents and staff”.
I suspect this case will make good news copy but not really any good law. The worker is prima facie entitled to hold his religious beliefs, but that right is subject to employer controls on dignity in the workplace and so on. If a gay employee was subjected to preaching on brimstone and hellfire without invitation or acquiescence, then he would likely have a complaint. If the conversation here was simply such that the worker was asked “What are your religious views on homosexuality?” and replied as reported, then it may well be that the complaint against him is weak, and does not justify something that may be indirect religious discrimination.
Cases such as these will be deeply fact sensitive. The best guidance for employers is that they need to foster an approach to their employees which values the right to hold a sexual orientation, and the right not to have to hide it under a bushel, but similarly respects the right to hold a religious view, while recognising that expression of some of its aspects may be justifiably restricted.
For the strength of religion in shaping behaviour, see this stunning collection of photographs of Easter Week celebrations and observances around the world, from the usual crowds in Vatican City to bloody self-flagellation in the Philippines.
Boston.com - The Big Picture - Penitents take part in a procession of the "Fusionadas" brotherhood during Holy Week in the Andalusian city of Malaga, southern Spain April 8, 2009. (REUTERS/Jon Nazca) #
And similarly, check out the oldest known depiction of a gay couple:
Khnumhotep and Niankhkhnum © 1999 Greg Reeder
Khnumhotep and Niankhkhnum are shown here in the middle of a nose-rub, the most intimate gesture in Ancient Egyptian art. They were a couple, with a family, and lived in Egypt around 2400 BC.
I do not think that this is just a clash between Articles 8 and 9 of the ECHR because Article 10 should be added to the mix as well. It surely must be permissible to say “I do not agree with the laws against discrimination” and it cannot be discriminatory to do so.
The story seems to have moved – it is now at
http://www.timesonline.co.uk/tol/comment/faith/article6093378.ece
You may also want to edit your second paragraph, as the original story quotes the employee as saying that he was *not* homophobic.
Thanks Simon – don’t know why they moved the story but it seems to read a little bit differently…
The missing *not* was a typo, but a grievous one!
James – I agree, and I believe a tribunal would have to consider both Article 9 and Article 10 engaged in this case. Rightly or wrongly I’ve always regarded Human Rights arguments as having a certain weakness so far as they are used in determining legitimate treatment or reasonableness.
From Begum v Denbigh High School [2006] UKHL 15 (apologies, as they say, for length)
The ‘margin of appreciation’ given to employers to rigidly set their behavioural code would seem to be wide. But simple expression of a view, outside of a work context, may fall outside it. There are some surprisingly generous decisions to restricting freedom of speech in civil servants however, eg you can’t be in the Communist Party and so on. If anyone knows of an authority on the precise point then please let us all know.
I think you’ll find the lowest picture is a representation of me and one of your male relatives a fortnight ago in the van club.
Correct, and for once I’ll leave your comment undisturbed.