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John Bowers QC on Employment Law: November Blog

Readers will be getting used to the eclectic mix that goes into these blogs. This month I look at a recent case on foster carers and working time, the ethos of religion defence in the Equality Act 2010 and the Supreme Court case of O’Connor v Bar Standards Board.

Foster carers and working time
In Sindicatul Familia Constanta v Directia Generala de Asistenta Sociala si Protectia Copilului Constantathe the CJEU considered the application of working time provisions to foster carers in Romania. The respondent Director General was a public institution whose purpose is to co-ordinate the activities of social assistance and protection of the family and the rights of minors at the level of provinces of Bucharest. The foster carers concluded a special employment contract with the Director General and a placement agreement for each child.

This provides for continuity of work including during weekly rest days public holidays and non-working days with the working hours being determined on the basis of the needs of the child. This includes periods of annual leave.

The referring court mentioned that foster parents share the home with the child placed with them and thus remain at the disposal of the employer to provide a service to that child.  Even during periods when they do not perform work as a foster parent. The Bucharest court said “The activities of a foster parent cannot be planned with precision but musty be organised in a very general way”.

The CJEU considered in turn whether the foster carers were workers and whether this fell within the exception in the Working Time Directive. The court started by emphasising that the concept of worker has an autonomous meaning specific to EU law.

The essential feature of the EU concept (which has marked similarity to UK law) is that for a certain period of time a person performs services under the direction of another person in return for which s/he receives remuneration (as per Uniuon syndicale Solidaire Isere C-428/). Here there was the continuity of service and the foster carers had to be approved. The specialist service for the protection of minors had to supervise their professional activity and to assess the development of the child placed with them. It was not called into question because they had discretion normally as to their conduct.

The CJEU them addressed the scope of the public service exception from working time rules contained in Art 2 of Directive 89/391 where “characteristics peculiar to certain public service activities inevitably conflict with” its rules. The examples given are armed forces, police and civil protection services”. Even in such a case the “safety and health of workers must be ensured as far as possible in the light of the objectives of the Directive”. This reaches not only workers “organically attached to the State or a public authority but also to sectors in which workers carry out work for a private person who performs under the control of the public authorities a task in the public interest which forms part of the essential functions of the State”. The Applicant foster parents were in fact all employed by a public authority.

The definition was broad however. There may be certain specific public service activities which even when performed in normal circumstances have characteristics which mean that their very nature is absolutely incompatible with the planning of working time in a way that respects the requirements imposed by the Directive.

The CJEU reminded itself of the emphasis placed in previous cases on the “fact that by their nature [the services] do not lend themselves to planning as regards working time. The key point here was that foster carers perform their activity continuously including during weekly rest days, public holidays non-working days and annual leave. A rotation system would “undermine an essential aspect of the foster care system….namely the maintenance on a continuous and long term basis of a special link between the foster child and foster parent characterised by the integration of that child into the home and family of the foster parent”.

This demonstrates a realistic approach to a complex problem.

The ethos of religion defence
There is a special but little considered defence available to the lack of belief/direct discrimination to recognise that the ethos of a religion may require a person to hold certain views. It is now found in the Equality Act 2010 under Schedule 9 Paragraph 3 which states

A person (A) with an ethos based on religion or belief does not contravene a provision mentioned in paragraph 1(2) by applying in relation to work a requirement to be of a particular religion or belief if A shows that, having regard to that ethos and to the nature or context of the work-

(a)     it is an occupational requirement,

(b)     the application of the requirement is a proportionate means of achieving a legitimate aim, and

(c)     the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).

The European basis for the schedule 9 Paragraph 3 defence is Article 4 Directive 2000/78/EC (the Equality Directive). That Article together with the relevant recitals states as follows:

(23)      In very limited circumstances, a difference of treatment may be justified where a characteristic related to religion or belief, disability, age or sexual orientation constitutes a genuine and determining occupational requirement, when the objective is legitimate and the requirement is proportionate. Such circumstances should be included in the information provided by the Member States to the Commission.

(24)      The European Union in its Declaration No 11 on the status of churches and non-confessional organisations, annexed to the Final Act of the Amsterdam Treaty, has explicitly recognised that it respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States and that it equally respects the status of philosophical and non-confessional organisations. With this in view, Member States may maintain or lay down specific provisions on genuine, legitimate and justified occupational requirements which might be required for carrying out an occupational activity.

Article 4 of that directive is worded as follows:

‘1.      Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.

2.      Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. This difference of treatment shall be implemented taking account of Member States’ constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground.

Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.’

The EHRC Code of Practice on Employment (2011) states in respect of the above justification provision

13.17 To rely on the exception, the employer must be able to show that their ethos is based on a religion or belief, for example, by referring to their founding constitution. An ‘ethos’ is the important character or spirit of the religion or belief. It may also be the underlying sentiment, conviction or outlook that informs the behaviours, customs, practices or attitudes of followers of the religion or belief.

In Jivraj v Hashwani [2011] IRLR 827 the Supreme Court considered the GOR justification defence contained in the predecessor legislation, the Employment Equality (Religion or Belief) Regulations 2003 which was in the same terms[1]. Lord Clarke states at paragraph 54

I agree with Mr Davies that it is not for the court to sit in judgment on matters of religion or belief. However, I also agree with Mr Brindle that the test for justifying prima facie discrimination cannot be entirely subjective. This is because the Regulations must be construed consistently with the Directive. It seems to me to be reasonably clear that para. 1 of Article 4 of the Directive is the source of para. (2) of  reg. 7 because they both refer to a genuine and determining occupational requirement. In these circumstances para. 2 must be the source of para. (3) of the regulation, with the result that the expression ‘genuine occupational requirement’ must (either alone or together with proportionality in requirement (3)) have been intended to reflect the expression ‘genuine, legitimate and justified occupational requirement’ in para. 2 of Article 4 of the Directive. If the legitimacy or justification of a requirement were assessed purely by reference to the subjective view of the employer, they would add nothing to the stipulation that a requirement be genuine. In my view, whether or not a particular religion or belief is a legitimate and justified requirement of an occupation is an objective question for the court. This is not however as strict a test as that applied under reg. 7(2), namely that a particular religion or belief is an essential requirement for the job. As I see it, the question is simply whether in all the circumstances of the case the requirement that the arbitrators should be respected members of the Ismaili community was, not only genuine, but legitimate and justified.

The SC held that, had the regulations applied, the requirement for any arbitrator appointed to be from the ‘Ismaili community’ would have fallen within the (then) reg 7(3) of the Religion and Belief Regulations 2003 exception for genuine occupational requirements. The question of whether a particular religion or belief was a legitimate and justified requirement of an occupation was an objective question for the court, and the judge at first instance had been correct to find that there was, in the Ismaili community, an enthusiasm for keeping dispute resolution within the community that amounted to an ‘ethos based on religion’.

The CJEU has recently addressed the requirements of Article 4 (2) in Egenberger v Evangelisches Werk für Diakonie und Entwicklung eV – [2018] IRLR 762.  At paragraph 63 the Court stated in respect of occupational requirement

the lawfulness from the point of view of that provision of a difference of treatment on grounds of religion or belief depends on the objectively verifiable existence of a direct link between the occupational requirement imposed by the employer and the activity concerned. Such a link may follow either from the nature of the activity, for example where it involves taking part in the determination of the ethos of the church or organisation in question or contributing to its mission of proclamation, or else from the circumstances in which the activity is to be carried out, such as the need to ensure a credible presentation of the church or organisation to the outside world. [our emphasis]; see also para 69.

The CJEU re-iterated these principles in the recent case of IR v JQ (2018) C-68/17. JQ was a Catholic head of internal medicine in a Catholic hospital run by a Catholic charity. Under German law, IR could require Catholic staff to follow Catholic doctrine. JQ was dismissed for remarrying after divorce. His claim was said to be based on an infringement of the principle of equal treatment because, under the relevant domestic law, the remarriage of a head of department of the Protestant faith or of no faith would not have had any consequences for the employment relationship between that person and IR. It was on that basis that he succeeded before the domestic courts. JQ’s dismissal was held not justified, as IR would not dismiss employees occupying the same post as JQ who were not of the Roman Catholic faith in the event of their remarriage.

The Court indicated that the requirement to not divorce and remarry was unlikely to constitute a genuine occupational requirement as there was insufficient (or any) nexus between the activities of JQ (the provision of administrative services within a hospital) and that religious requirement. Here the nexus was established.

Finally in Pemberton v Inwood [2018] EWCA Civ. 564 the Court of Appeal considered in detail the provision of Schedule 9 paragraph 2 dealing with employment for the purposes of organised religion. Employment is for the purposes of an organised religion pursuant to Para 2 (1) (a) if it is a ‘central and necessary part of the role’, irrespective of whether it was not the totality of the role and there were other purposes as well. What constitutes a “doctrine” for the purpose of Paragraph 2 (5) must refer to the teachings and beliefs of the religion in question and that what those teachings and beliefs are must in principle be decided by the Court itself on the basis of the evidence adduced to it.

A religion (such as Judaism) involves a significant number of rules and practices manifesting themselves in requirements that could broadly be labelled as ‘lifestyles’ from refraining from eating certain foods, to Sabbath observance to relations between the sexes (which are considered vital to the religion/belief). An organization with a religious ethos may require that these laws be observed by its workforce both within and (depending on circumstances) outside its premises.

[I thank Ashley Serr of Exchange Chambers for his contribution to this piece]

O’Connor v Bar Standards Board
In O’Connor v Bar Standards Board [2017] UKSC 78, Ms O’Connor who is black was a practising barrister who claimed damages under the Human Rights Act 1998 (HRA) against the Bar Standards Board, alleging discrimination in her enjoyment of the right to a fair trial, in breach of article 14 of the European Convention on Human Rights considered in conjunction with article 6 ECHR. The appellant alleged that the BSB discriminated against her on grounds of her race in bringing disciplinary proceedings which ended in her acquittal on appeal in August 2012. The appellant’s final appeal was to the Visitors to the Inns of Court. They found that none of the conduct alleged against the appellant involved any breach of the Code of Conduct of the Bar.

The HRA s7(5)(a) stated that “Proceedings under subsection (1)(a) must be brought before the end of (a) the period of one year beginning with the date on which the act complained of took place.”

The questions which arose on the appeal were

(1)              Are the disciplinary proceedings brought by the BSB against the appellant to be considered as a series of discrete acts or a single continuing act for the purposes of section 6(1)(a) of the 1998 Act?

(2)              If the latter, does that act end with the verdict of the Disciplinary Tribunal or with the verdict of the Visitors?

Warby J held that the claim was time-barred by s 7(5) on the basis that

“Here, the ‘act complained of’ in the one human rights claim that I have held to be both adequately pleaded and sustainable for the purposes of a summary judgment application is the BSB’s ‘prosecution’ of the appellant. The decision to bring proceedings was taken on 9 June 2010 or at the latest in late July 2010 when the charges were served on the appellant. If time runs from either of those dates then the one-year time limit expired some 17 or 18 months before the issue of these proceedings in February 2013. If the BSB’s ‘prosecution’ of the appellant is considered to be a continuing state of affairs up to the tribunal decision, time under section 7 expired in May 2012.”

In the Court of Appeal, Elias LJ distinguished between an allegation of discriminatory treatment of the appellant herself and a distinct, wider allegation that there is systemic discrimination against BME barristers and the Supreme Court adopted this analysis. The bringing and pursuit of disciplinary proceedings must be the focus of the investigation into “the date on which the act complained of took place”.

Lord Wilson at para 23 said “The expression ‘the date on which the act complained of took place’ is apt to address a single event. However, the provision should not be read narrowly. There will be many situations in which the conduct which gives rise to the infringement of a Convention right will not be an instantaneous act but a course of conduct. The words of section 7(5)(a) should be given a meaning which enables them to apply to a continuing act of alleged incompatibility.”

It was necessary to consider whether the alleged infringement of Convention rights in the present case arises from a course of conduct as opposed to a single act. The Appellant contended that she was not complaining about each of the individual steps which comprised the “prosecution” but instead about the fact that the BSB prosecuted her, a state of affairs which lasted until the prosecution came to an end. The BSB submitted that the decision to refer the appellant to a disciplinary tribunal, even if indirectly discriminatory, was a one-off act with potentially continuing consequences rather than a continuing violation.

Lord Lloyd Jones, giving judgment for a unanimous Supreme Court, considered that the alleged infringement of Convention rights in the present case arose from a single continuous course of conduct. Although disciplinary proceedings brought by the BSB necessarily involve a series of steps, the essence of the complaint made here is the initiation and pursuit of the proceedings to their conclusion, ie the entirety of the course of conduct as opposed to any component steps.

There was however a problem with the description of the proceedings as a “prosecution”. This was an understandable analogy but was “imprecise and [it] may tend to obscure the fact that the complaint is of discrimination in bringing disciplinary proceedings not a criminal prosecution”.

The role of the BSB in initiating and pursuing the proceedings before the Tribunal and before the Visitors is essentially one continuing act. In these circumstances it was not necessary to express any view as to whether the same conclusion should be drawn in relation to an appeal against a criminal conviction.

[1] There was said to be no significant difference between the provisions contained in the Regulations and the Equality Act.

John Bowers QC
Principal Brasenose College Oxford
Littleton Chambers

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