Law and Religion Scholars Network
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Case Database 2007
This list includes judgments delivered in 2007.
United Kingdom
EWEIDA v BRITISH AIRWAYS Employment Tribunal Case No. 2702689/06 (19 December 2007) the refusal of British Airways to allow an employee to wear a visible cross with her uniform was not direct discrimination because the claimant did not suffer less favourable treatment on grounds of religion or belief than a comparator of identical circumstances; as to indirect discrimination, the rule that personal jewellery should be concealed by the uniform unless otherwise expressly permitted was applied equally and did not put Christians at a particular disadvantage: (2008) 160 L&J 56-59; see also EWEIDA v BRITISH AIRWAYS PLC [2008] UKEAT 0123 08 2011 (20 November 2008).
PADGETT v SEROTA & ANOR [2007] UKEAT 0097 07 1712 (17 December 2007): the refusal by the Tate Gallery to engage the claimant, a Unitarian, to construct a scale model of the Tate Memorial did not constitute discrimination contrary to the Employment Equality (Religion and Belief) Regulations 2003, since there was no evidence that the Tate had a rolling open invitation to tender that amounted to a general invitation to artists collectively to apply for work: (2008) 160 L&J66-67.
MUSAWI v R E INTERNATIONAL (UK) LTD & ORS [2007] EWHC 2981 (Ch) 14 December 2007; 2007 WL 4368227: where the parties had signed an arbitration agreement to appoint an Islamic judge as arbitrator but the defendant refused to honour the arbitrator’s award the claimant’s primary claim to enforce the arbitration award should be upheld; but the court rejected the claim that the agreements made before the Contracts (Applicable Law) Act 1990 were governed by sharia and concluded that all the agreements in the case were governed by English law: (2008) 160 L&J 67-69.
GREEN, R (ON THE APPLICATION OF) v CITY OF WESTMINSTER MAGISTRATES’ COURT [2007] EWHC (Admin) 2785 (5 December 2007): the refusal by District Judge to issue a summons for a private prosecution of blasphemous libel against the producer of ‘Jerry Springer: the Opera’ and the Director General of the BBC, on the grounds that prosecution was prevented by the Theatres Act 1968 and that in any case there was no prima facie case of damage to society or of the risk of civil strife, was within the range of decisions properly open to her: (2008) 160 L&J 59-61.
ADMISSION ARRANGEMENTS OF JFS, BRENT [2007] Determination by the Schools Adjudicator under the School Standards and Framework Act 1998 (Case Reference ada/001187) (27 November 2007): the oversubscription criteria for JFS (formerly the Jewish Free School), giving preference to those recognised as Jewish by the Office of the chief Rabbi, was as a matter of fact based on religion and did not, therefore, contravene the prohibition on direct discrimination on racial grounds since it pursued a legitimate aim: the preservation of the Orthodox Jewish ethos of the school: (2008) 160 L&J 69-70; see also E v GOVERNING BODY OF JFS & ANOR [2008] EWHC 1535/1536 (Admin) (3 July 2008) and E, R (ON THE APPLICATION OF) v JFS GOVERNING BODY & ANOR [2009] EWCA Civ 626 (25 June 2009):
McCLINTOCK v DEPARTMENT OF CONSTITUTIONAL AFFAIRS [2007] UKEAT/0223/07/CEA (31 October 2007); 2007 WL 3130902: the forced resignation as a Justice of the Peace of a practising Christian because of his refusal to agree to place children for adoption, fostering or care with same-sex couples pursuant to the Adoption Act 2002, as amended, was not unfair dismissal or indirect discrimination, since the evidence indicated that the Department would have treated in the same way anyone who was not prepared to give effect to the judicial oath: (2008) 160 L&J 63-65.
KOHN v WAGSCHAL & ORS [2007] EWCA Civ 1022 (24 October 2007): an arbitration by the London Beth Din relating to the destination of shares from an intestate estate was upheld: ‘what the Beth Din have decided is that as a matter of Jewish law there was no evidence of a gift [of shares] to the [appellants]. In the result their award takes the shares back into the estate of the deceased. It seems to me that there is no public policy which requires this court not to enforce that award’: Soleimany v Soleimany [1999] QB 785 was distinguished on the grounds that the contract sought to be enforced in that case would infringe the criminal law of Iran and the English court was therefore being asked to enforce an illegal agreement.
NEW TESTAMENT CHURCH OF GOD v STEWART [2007] EWCA Civ 1004 (19 October 2007): The Church appealed against the employment tribunal’s finding that a minister of religion whose position as a pastor at had been terminated had been held an employee for the purposes of s230 of the Employment Rights Act 1996 by. The Court of Appeal dismissed the appeal but held that PERCY v CHURCH OF SCOTLAND BOARD OF NATIONAL MISSION [2005] UKHL 73 had removed the presumption that there was no intention to create legal relations between ministers of religion and their religious organisations, leaving it open for employment tribunals to find that there was a contract of employment if the evidence justified that finding.
HARRIS v NKL AUTOMOTIVE LTD & ANOR [2007] UKEAT/0134/07/DM (3 October 2007); 2007 WL 2817981: the dismissal of a Rastafarian driver for wearing dreadlocks was not discrimination contrary to the Employment Equality (Religion or Belief) Regulations: if the general required standard of tidiness was taken to be a ‘criterion or practice’ it would have been applied to all drivers and to any driver wearing dreadlocks, whether or not a Rastafarian, and a requirement of tidy hair would also be a proportionate means to achieving the aim of a presentable appearance to customers and clients: (2008) 160 L&J 61-63.
CHRISTIAN INSTITUTE & ORS, RE JUDICIAL REVIEW [2007] NIQB 66 (11 SEPTEMBER 2007): a general challenge to the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 (which would prohibit direct and indirect discrimination and harassment on the ground of sexual orientation in the provision of various goods and services) on the grounds that they were contrary to Article 9 ECHR (thought, conscience and religion) was rejected: however, the court quashed the provisions on harassment, primarily on the ground that they were radically different from those originally envisaged in the consultation paper and the extended reach of the harassment provisions beyond that of discrimination and statutory harassment
R (ON THE APPLICATION OF SWAMI SURYANANDA) v WELSH MINISTERS [2007] EWCA Civ 893 (23 July 2007): the Welsh Assembly Government was entitled to issue a slaughter notice under the Animal Health Act 1981 in respect of a bullock that reacted positively to a TB test: notwithstanding the petitioners’ rights under Article 9 ECHR, the Government’s action was prescribed by law and had a legitimate aim of maintaining public and animal health and preventing the spread of the disease: 159 (2007) L&J 155-156.
THE NHS TRUST v A (A CHILD) AND ORS [2007] EWHC (Fam) 1696 (18 July 2007): the High Court granted a declaration that a bone marrow transplant be carried out on a seven-month-old child against the wishes and religious beliefs of her parents: although the court had the utmost respect for the parent’s faith, that faith was irrelevant to the decision, since a baby was incapable of any religious belief and an objective balancing of the child’s own interests could not be affected by the religious adherence of the parents: (2007) 159 L&J 152.
REANEY v HEREFORD DIOCESAN BOARD OF FINANCE [2007] Employment Tribunal Case No 1602844/2006 (17 July 2007): an unsuccessful homosexual applicant for a post of Diocesan Youth Officer had been treated less favourably than other (heterosexual) persons within the meaning of Regulation 3 Employment Equality (Sexual Orientation) Regulations 2003 because of the refusal to accept his assurance that he would remain celibate for the duration of the post, given that his referees had testified as to his good character and there was no evidence to suggest that he was not telling the truth when he said he that did not have any current relationship: (2007) 159 L&J 153-154.
R (ON THE APPLICATION OF PLAYFOOT (A CHILD)) v MILLAIS SCHOOL GOVERNING BODY [2007] EWHC Admin 1698 (16 July 2007): the claimant failed to overturn the decision by the defendant school to prevent her from wearing a ‘purity’ ring (expressing a commitment to premarital chastity) at school because she was under no obligation, by reason of her faith, to wear the ring; and even if Article 9 ECHR had been engaged, then there would have been no breach since she had voluntarily accepted the school’s uniform policy and there were other means open to her to practise her belief without undue hardship or inconvenience: (2007) 159 L&J 150-151 .
MAHMOUD v ISLAMIC CULTURAL CENTRE AND THE LONDON CENTRAL MOSQUE [2007] WL 1729857; [2007] All ER (D) 204 (27 June 2007): an Egyptian claimant who alleged race discrimination by her Libyan superior failed to establish her claim because it was not clear whether she had been discriminated against on grounds of race because she was Egyptian (her superior having shown hostility towards her because he was a Libyan) or because a UK national would not have been treated in the same way: (2007) 159 L&J 149-150.
R (ON THE APPLICATION OF BAIAI AND ORS) v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2007] EWCA Civ 478 (23 May 2007): the Home Office scheme under the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 ss 19 to 25 and the Immigration (Procedure for Marriage) Regulations 2005 to prevent ‘sham’ marriages, whereby any subject to immigration control wishing to enter into a civil marriage in the United Kingdom had to apply to the Secretary of State for a certificate of approval to marry was disproportionate and in breach of Article 12 ECHR (marriage and family): (2007) 159 L&J 148-149; see also R (ON THE APPLICATION OF BAIAI & ORS) v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2008] UKHL 53 (30 July 2008).
AZMI v KIRKLEES METROPOLITAN COUNCIL [2007] UKEAT 0009 07 30003 (30 MARCH 2007): a bilingual support worker at a Church of England school who was dismissed for insisting on wearing the niqab veil had not been directly discriminated against on grounds of religion or belief contrary to the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660), since she had not shown that she had suffered less favourable treatment than others in circumstances which were materially the same: though the school’s ‘no face veil when teaching rule’ constituted indirect discrimination in that it put both Muslims in general and the claimant in particular at a disadvantage, it was justified as a proportionate means of achieving the legitimate aim of children being taught properly.
R (ON THE APPLICATION OF X) v Y SCHOOL & ORS [2007] EWHC 298 (Admin) (21 FEBRUARY 2007): a 12-year-old Muslim girl refused permission to wear a niqab veil covering her entire face save her eyes while she was being taught by male teachers had not suffered an interference with her rights under Article 9 ECHR (thought, conscience and religion) and, in any case, such interference would have been justified under Article 9(2): there was nothing wrong with the procedure adopted by the school (the head teacher having carefully considered f whether or not the claimant should be allowed to wear the niqab), the rule was necessary in a democratic society for the protection of the rights of others and any interference would have been proportionate.
GLASGOW CITY COUNCIL v McNAB [2007] UKEAT 0037 06 1701 (17 January 2007): an atheist teacher working in a Roman Catholic maintained school was not even considered for interview for the post of Acting Principal Teacher of Pastoral Care because the local education authority assumed that the Church would regard the practice of Roman Catholicism as a prerequisite for the post: the EAT agreed with the Employment Tribunal that he had been discriminated against on religious grounds, because none of the exceptions provided for under Regulations 7(2) and (3) of the Employment and Equality (Religion or Belief) Regulations 2003 applied.
Europe
EL MAJJAOUI & STICHTING TOUBA MOSKEE v THE NETHERLANDS (striking out) [2007] ECtHR [GC] (No. 25525/03) (20 December 2007) : the mere fact that the applicant mosque had had to comply with certain requirements before it was able to employ the applicant El Majjaoui as an imam did not breach Article 9 ECHR: that Article did not guarantee foreign nationals a right of residence in order to take up employment in a contracting state, even if the prospective employer were a religious association: (2008) 160 L&J 51-52.
ISMAILOVA v RUSSIA [2007] ECtHR (No. 37614/02) (29 November 2007): a refusal to grant custody of the children to their divorced mother, a former Muslim now a Jehovah’s Witness, did not violate of Article 8 ECHR (private and family life) taken in conjunction with Article 14 (discrimination) because the domestic courts had focused solely on the interests of the children and based their decision largely on the children’s age and the living-conditions that the respective parents could provide: (2008) 160 L&J 55-56.
GLAS NADEZHDA EOOD & ELENKOV v BULGARIA [2007] ECtHR (No. 14134/02) (11 October 2007): the refusal of the authorities without adequate reason to grant a broadcasting licence to the applicant religious radio station violated Article 10 ECHR (freedom of expression) and the refusal to review that decision fell short of the requirements of Article 13 (effective remedy): it was not necessary separately to examine the complaint under Article 9: (2008) 160 L&J 52-53.
HASAN & EYLEM ZENGIN v TURKEY [2007] ECtHR (No. 1448/04) (9 October 2007): the procedure for exemption from compulsory instruction in ‘religious culture and moral education’ in Turkish schools did not sufficiently respect minority religious or philosophical convictions, in breach of Article 2 of Protocol No. 1 (education): (2008) 160 L&J 53-54.
BARANKEVICH v RUSSIA [2007] ECtHR (No. 10519/03) (26 July 2007): the refusal to allow a congregation of the Church of Evangelical Christians to hold a service in public was not ‘necessary in a democratic society’ and therefore breached Article 11 ECHR (peaceful assembly and association) taken in the light of Article 9: (2007) 159 L&J 158-159.
FOLGERØ & ORS v NORWAY [2007] ECtHR [GC] (No. 15472/02) (29 June 2007): refusal to permit humanist parents to withdraw their children from compulsory lessons in Christianity, Religion and Philosophy (“KRL”) contravened Article 2 of Protocol No. 1 ECHR (education): (2007) 159 L&J 159-160.
SVYATO-MYKHAYLIVSKA PARAFIYA v UKRAINE [2007] ECtHR (No. 77703/01) (14 June 2007): in a dispute over canonical allegiance, the refusal to register the changes to a parish statute served a legitimate aim: to protect of the rights of the majority group; but subsequent decisions by the courts regarding ‘fixed membership’ were ill-founded and the result violated Article 9 ECHR read in the light of Articles 6 § 1 (fair and public hearing) and 11 (peaceful assembly and association): (2007) 159 L&J 160-162.
BĄCZKOWSKI & ORS v POLAND [2007] ECtHR (No. 1543/06) (3 May 2007): the refusal by the Mayor of Warsaw to allow a demonstration to protest about discrimination against homosexuals, while allowing six other demonstrations against homosexuality, contravened the applicants’ rights under Article 11 ECHR (peaceful assembly and association) and they had been denied an effective remedy under Article 13: (2007) 159 L&J 156-158.
GLDANI CONGREGATION OF JEHOVAH'S WITNESSES & ORS v GEORGIA
[2007] ECtHR (No. 71156/01) (3 May 2007): because of their failure to protect the applicants from attacks by Orthodox extremists, the Georgian authorities had failed to ensure the exercise of their rights under Article 9 ECHR; the negligence of the police investigation into unlawful acts against the applicants had also breached Article 14 (rights to be secured without discrimination): (2007) 159 L&J 163- 164.
KAVAKÇI v TURKEY [2007] ECtHR (No. 71907/01) (5 April 2007) [French text only] a female member of the Turkish Grand National Assembly who had worn the Islamic headscarf in the Assembly and had ultimately been deprived of her Turkish nationality and parliamentary mandate had been treated disproportionately in terms of Article 3 of Protocol No 1 (free elections): it was not necessary separately to examine the alleged breaches of Articles 6, 9 and 14.
IVANOVA v BULGARIA [2007] ECtHR (No. 52435/99) (12 APRIL 2007): the dismissal of the applicant, a member of a Evangelical Christian group “Word of Life”, who had been told by the local Chief Education Inspector that if she would be dismissed if she did not resign from the group, had been in breach Article 9 ECHR (thought, conscience and religion): while Article 9 recognised that in a democratic society in which several religions coexisted it might be necessary to place restrictions on the freedom to manifest one’s beliefs in order to reconcile the interests of the various religious groups and to ensure that all beliefs were respected, the State could not dictate what a person should believe or take coercive steps to make her change her beliefs.
CHURCH OF SCIENTOLOGY MOSCOW v RUSSIA [2007] ECtHR (No. 18147/02) (5 APRIL 2007): repeated refusals to re-register the applicants as a religious association with legal-entity status violated its rights under Article 11 ECHR (peaceful assembly and association) read in the light of Article 9 (thought, conscience and religion), following the earlier judgment in re[2006] ECtHR (No.72881/01) (5 October 2006) .
TYSIĄC v POLAND [2007] ECtHR (No. 5410/03) (20 MARCH 2007): a refusal of therapeutic abortion under a law which permitted termination only in very restricted circumstances had not violated the applicant’s rights under Article 3 ECHR (inhuman or degrading treatment) but had been in breach of Article 8 (private and family life) [by six votes to one, Borrego Borrego J dissenting] because the law did not give her any effective mechanism for determining whether or not the conditions for obtaining a lawful abortion had been met in her case, the resulting prolonged uncertainty had caused her severe distress, and a remedy in delict was not an adequate procedural means for her to vindicate her right under Article 8 since it was purely retroactive.
TRUE ORTHODOX CHURCH IN MOLDOVA & ORS v MOLDOVA [2007] ECtHR (No. 952/03) (27 FEBRUARY 2007): the refusal of the authorities to register the applicant Church in spite of a court order to do so had violated Article 9 ECHR (thought, conscience and religion): for a previous judgment in similar circumstances see METROPOLITAN CHURCH OF BESSARABIA & ORS v MOLDOVA [2001] ECtHR (No. 45701/99) (13 DECEMBER 2001).
KUZNETSOV & ORS v RUSSIA [2007] ECtHR (No. 184/02) (11 January 2007): the refusal of the authorities to prosecute the Chairwoman of the regional Human Rights Commission for, in effect, breaking up a Sunday meeting of the applicant Jehovah’s Witnesses and the inadequacy of the subsequent civil proceedings before the local District Court had violated the applicants’ rights under Article 9 ECHR (thought, conscience and religion) and Article 6 (fair hearing): the domestic courts had failed to state the reasons on which their decisions were based and to demonstrate that the parties had been heard in a fair and equitable manner.
FENER RUM ERKEK LİSESİ VAKFI v TURKEY [2007] ECtHR (No. 34478/97) (9 January 2007) [French text only]: an order by the Turkish courts setting aside a title acquired through gifts of property to an Orthodox Church foundation in 1952 and 1958, on the grounds that its constitution did not state explicitly that it had capacity to acquire real property, violated Article 1 of Protocol No. 1 ECHR (peaceful enjoyment of possessions).
LARSN Case Database
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