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Case Database 2008
This list includes judgments delivered in 2008.
United Kingdom
ENGLISH v THOMAS SANDERSON LTD [2008] EWCA Civ 1421 (19 December 2008): a worker who was mocked for being ‘gay’ even though (a) his colleagues knew that he was not gay, (b) he was not perceived or assumed to be gay by his fellow workers and (c) he accepted that his fellow-workers did not believe him to be gay, had nevertheless suffered sexual harassment contrary to the Employment Equality (Sexual Orientation) Regulations 2003: this is an extension of sexual harassment law and has implications for religious harassment:(2009) 162 L&J 85-87.
LONDON BOROUGH OF ISLINGTON v LADELE [2008] Employment Appeal Tribunal Case No. UKEAT/0453/08/RN (10 December 2008): the refusal by a local authority to accommodate the conscientious objections of a civil registrar to conducting civil partnership ceremonies was not disproportionate under the Employment Equality (Religion or Belief) Regulations 2003: 162 (2009) L&J 91–93 and see also 161 L & J (2008) 137.
COLEMAN v ATTRIDGE LAW & ANOR [2008] London South Employment Tribunal Case No. 2303745/2005 (25 November 2008): the Disability Discrimination Act 1995 was capable of an interpretation consistent with the ECJ’s interpretation of the Directive so as to include associative discrimination against a carer of a disabled child; (2009) 162 L&J 85: see also COLEMAN v ATTRIDGE LAW & ANOR [2008] ECJ (GC) Case C 303/06 (17 July 2008).
EWEIDA v BRITISH AIRWAYS PLC [2008] UKEAT 0123 08 2011 (20 November 2008): the refusal of British Airways to allow an employee to wear a visible cross with her uniform did not constitute indirect discrimination and harassment on grounds of religion or belief contrary to the Employment Equality (Religion or Belief) Regulations 2003, since there was no evidence of group disadvantage to Christians:(2009) 162 L&J 87-88; see also EWEIDA v BRITISH AIRWAYS Employment Tribunal Case No. 2702689/06 (19 December 2007).
E (A CHILD), RE [2008] UKHL 66 (12 November 2008): the failure of the Northern Ireland police to prevent violent demonstrations against parents and pupils of a Roman Catholic Primary School walking to and from the school through a Protestant area had not amounted to a failure to prevent inhuman and degrading treatment contrary to Article 3 ECHR.
SAINI v ALL SAINTS HAQUE CENTRE & ORS [2008] UKEAT/00227/08 (24 October 2008): discrimination under the Employment Equality (Religion or Belief) Regulations 2003 on the grounds of religion or belief applies not only where an employee is harassed on the grounds of his or her own religious beliefs, but also where he or she suffers harassment because of the religious beliefs of another person – thereby extending the principle of non-discrimination by association (already confirmed for race and disability in Coleman v Attridge Law & Anor) to religion and belief: (2009) 162 L & J 96–97.
EM (LEBANON) v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2008] UKHL 64 (22 October 2008): the appellant was a fugitive from Lebanon, under whose sharia law custody of her seven-year-old son would pass to his father or to another male member of his family if she and her son were made to return. Non-discrimination was a core principle of English and Scots for the protection of human rights and sharia as it is applied in Lebanon was created by and for men in a male-dominated society: returning mother and child risked denial of their rights under Article 8 ECHR (private and family life).
HELOW v SECRETARY OF STATE FOR THE HOME DEPARTMENT & ANOR [2008] UKHL 62 (22 October 2008): the failure of Lady Cosgrove to disclose her membership of the International Association of Jewish Lawyers and Jurists when hearing an asylum petition to the Court of Session by a Palestinian asylum-seeker would not suggest judicial bias to a fair-minded observer: (2009) 162 L&J 89.
L v HUMAN FERTILISATION AND EMBRYOLOGY AUTHORITY & ANOR [2008] EWHC 2149 (Fam) (3 October 2008): the court refused to make a declaration that, in the absence of his consent, the continued storage of L’s dead husband’s sperm (extracted after his death) was lawful; whether or not it could be exported for use in IVF treatment of L was a matter for the HFEA as the statutory decision-maker – but it would continue to be stored in casethe HFEA decided that export should be permitted: (2009) 162 L&J 90..
GALLAGHER (VALUATION OFFICER) v CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS [2008] UKHL 56 (30 July 2008): a Mormon Temple and associated buildings to which entry was restricted only to ‘Patrons’ who have a ‘recommend’ from their local bishop was not ‘a place of public religious worship’ for the purposes of paragraph 11 of Schedule 5 to the Local Government Finance Act 1988 and did not therefore attract the customary relief from non-domestic rates; nor did this engage Articles 9 and 14 ECHR, since it did not affect the right to manifest: (2008) 161 L&J 130-132.
MOSLEY v NEWS GROUP NEWSPAPERS LTD [2008] EWHC 1777 QB (30 July 2008) the publication of newspaper photographs and a video of the claimant’s participation in sado-masochism with prostitutes was contrary to ‘a public interest in respecting personal privacy’: in this instance the right to privacy under Article 8 ECHR (private and family life) overrode the right to freedom of expression under Article 10: (2009) 162 L & J 93–94.
R (ON THE APPLICATION OF BAIAI & ORS) v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2008] UKHL 53 (30 July 2008): a scheme concerning sham marriages pursuant to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (under which anyone subject to immigration control who wished 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) breached Article 12 ECHR (marriage and family): (2008) 161 L&J 139-140; see also R (ON THE APPLICATION OF BAIAI AND ORS) v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2007] EWCA Civ 478 (23 May 2007).
WATKINS-SINGH, R (ON THE APPLICATION OF) v GOVERNING BODY OF ABERDARE GIRLS’ HIGH SCHOOL & ANOR [2008] EWHC (Admin) 1865 (29 July 2008): the refusal by a school to allow a Sikh girl to wear a kara bangle, on the grounds that it was contrary to its school uniform policy, was indirect unjustified race and religious discrimination contrary to the Race Relations Act 1976 (as amended to give effect to Council Directive 2000/43EC) and the Equality Act 2006: (2008) 161 L&J 141-143.
E v GOVERNING BODY OF JFS & ANOR [2008] EWHC 1535/1536 (Admin) (3 July 2008): the refusal of JFS (formerly the Jewish Free School) to admit a child who was not recognised as Jewish by the Office of the Chief Rabbi was not unlawful: the admissions policy reflected a religious and not an ethnic view as to who was or was not a Jew, and discrimination in selection had been based on religion rather than on race or ethnic origin: (2008) 161 L&J 128-129; see also ADMISSION ARRANGEMENTS OF JFS, BRENT [2007] Determination by the Schools Adjudicator under the School Standards and Framework Act 1998 (Case Reference ada/001187) and E, R (ON THE APPLICATION OF) v JFS GOVERNING BODY & ANOR [2009] EWCA Civ 626 (25 June 2009).
IN RE P & ORS (NORTHERN IRELAND) [2008] UKHL 38 (18 June 2008): a blanket ban on joint adoption by unmarried couples traversed the claimants’ Convention rights in respect of their private and family life under Articles 8 and 14 ECHR: if being married was a status, it must follow that not being married was also a status for the purposes of Article 14 and the blanket ban was disproportionate since it had no objective and reasonable justification: (2008) 161 L&J 134-135.
NOAH v DESROSIERS t/a WEDGE [2008] Employment Tribunal Case No. 2201867/07 (29 May 2008): the rejection of an applicant for a job in a hairdressing salon because she was a Muslim who habitually wore a headscarf constituted indirect discrimination under the Employment Equality (Religion or Belief) Regulations 2003.
LADELE v LONDON BOROUGH OF ISLINGTON [2008] Employment Tribunal 20–23 May 2008 (Case no. 2203694/2007): the refusal by a local authority to accommodate the conscientious objections of a civil registrar to conducting civil partnership ceremonies constituted both direct and indirect discrimination under the Employment Equality (Religion or Belief) Regulations 2003: the facts involved ‘a direct conflict between the legislative protection afforded to religion or belief and the legislative protection afforded to sexual orientation’ and her employer had placed insufficient value on her rights: (2008) 161 L&J 137-139; see also LONDON BOROUGH OF ISLINGTON v LADELE [2008] Employment Appeal Tribunal Case No. UKEAT/0453/08/RN (10 December 2008).
HENDER & SHERIDAN v PROSPECTS FOR PEOPLE WITH LEARNING DISABILITIES [2008] Employment Tribunal (Cases nos. 2902090/2006 (Hender) & 2901366 (Sheridan)) (13 May 2008): it was insufficient to assume that, as a matter of principle, every job in a Christian organisation should be done by Christians; in order to comply with the Genuine Occupational Requirement provisions of the Employment Equality (Religion or Belief) Regulations 2003 it was necessary to carry out a job evaluation for every post: (2008) 161 L&J 132-133.
KC & ANOR v CITY OF WESTMINSTER SOCIAL & COMMUNITY SERVICES DEPT & ANOR [2008] EWCA Civ 198 (19 March 2008): because of the lack of mental capacity of one of the parties, a marriage by telephone link between England and Bangladesh, though a valid marriage under sharia and Bangladeshi law, was not valid under English law:(2008) 161 L&J 135-137.
Europe
DOGRU v FRANCE [2008] ECtHR (No. 27058/05) (4 December 2008); KERVANCI v FRANCE [2008] ECtHR (No. 31645/04) (4 December 2008) (Though the applicants brought separate claims, the same seven judges, sitting as the Fifth Section, heard both cases and issued virtually identical judgments in both of them, mutatis mutandis. The judgment in Dogru is available in English while Kervanci is available only in French): The conclusion of the French authorities that wearing of a veil, such as an Islamic headscarf, was incompatible with sports classes for reasons of health or safety was not unreasonable. The penalty was not the consequence of the applicants’ religious convictions but of their refusal to comply with rules of which they had been properly informed. The interference was therefore justified and proportionate and there had been no breach of Article 9. It was unnecessaryseparately to examine the complaint based on Article 2 of Protocol No. 1.
MANN SINGH v FRANCE [2008] ECtHR (No. 24479/07) (27 November 2008) [French text only]: it was not disproportionate nor a breach of Article 9 ECHR to require a Sikh to remove his turban in order to be photographed for an HGV driving licence.
LEELA FÖRDERKREIS E V & ORS v GERMANY [2008] ECtHR (No. 58911/00) (6 November 2008): an information campaign by the German Government about the activities of ‘sects’ had not breached the applicants rights under Article 9 ECHR; but delays in protracted proceedings before the Federal Constitutional Court had been in breach of Article 6 (fair and impartial hearing).
RELIGIONSGEMEINSCHAFT DER ZEUGEN JEHOVAS & ORS v AUSTRIA [2008] ECtHR 762 (No. 40825/98) (31 July 2008): the delay of more than 20 years between the submission of the request by the Jehovah’s Witnesses for recognition as a religious society (Religionsgesellschaft) under the Recognition Act 1874 and the granting of legal personality was substantial and in breach of Article 9 ECHR: (2008) 161 L&J 154-156 .
COLEMAN v ATTRIDGE LAW & ANOR [2008] ECJ (GC) Case C 303/06 (17 July 2008): the prohibition of direct discrimination in the Equal Treatment Directive 2000/78/EC was not limited only to people who were themselves disabled: for an employer to treat an able-bodied employee caring for a disabled child less favourably than another employee in a comparable situation was contrary to the prohibition of direct discrimination laid down by Article 2(2)(a), and similar considerations applied to the prohibition against harassment: (2008) 161 L&J 148-151;see also COLEMAN v ATTRIDGE LAW & ANOR [2008] London South Employment Tribunal Case No. 2303745/2005 (25 November 2008).
FENER RUM PATRIKLIĞI (ECUMENICAL PATRIARCHATE) v TURKEY [2008] ECtHR (No. 14340/05) (8 July 2008) [French text only]; [2010] ECtHR (No. 14340/05) (15 June 2010) [French text only]: the Turkish authorities were not entitled to deprive the Ecumenical Patriarchate of its property, a boys’ orphanage, without appropriate compensation: to do so was in breach of Article 1 of Protocol No. 1 ECHR (property).
HANNA AND PETER MÜLLER v GERMANY 12986/04 [2008] ECtHR (20 May 2008): the claimants, Salvation Army officers, who had signed a declaration of commitment by which they expressly consented not to be employed by the Army and not to conclude an employment contract with it, were subsequently dismissed without the opportunity of a hearing either before an internal Army tribunal or before the secular Labour Court (which had declined jurisdiction on the grounds that the matter touched on the Constitutional autonomy of religious organisations): the Fifth Section held that their complaint under Article 9 §2 taken in conjunction with Article 14 (discrimination) was inadmissible but adjourned consideration of their complaint based on Article 6 § 1 (fair trial).
BURDEN v UNITED KINGDOM [2008] ECtHR [GC] (No. 13378/05) (29 April 2008): the relationship between siblings was of a different nature from that between spouses and same-sex civil partners; and the fact that, as sisters, the applicants were ‘within the prohibited degrees of relationship’ and thereby precluded from forming a civil partnership in order to benefit from favourable Inheritance Tax treatment did not breach their Convention rights under Article 14 and Article 1 of Protocol No. 1 ECHR: (2008) 161 L&J 147-148.
BLUMBERG v GERMANY [2008] ECtHR (No. 14618/03) (18 March 2008): a refusal to carry out a medical examination on grounds of ‘possible bias’ and a ‘subjective moral dilemma’ did not constitute an expression of a coherent view on a fundamental problem and could not, therefore, be regarded as a ‘manifestation of personal beliefs’ for the purposes of Article 9 ECHR: (2008) 161 L&J 144-145.
EL MORSLI v FRANCE [2008] ECtHR (No. 15585/06) (4 March 2008) [French text only]: the requirement that a female Muslim applicant should remove her veil for an identity check when applying for an entry-visa was a legitimate restriction within the meaning of Article 9(2) ECHR: to guarantee public safety or the protection of order: (2008) 161 L&J 151-153.
BORISOV & ORS v BULGARIA [2008] ECtHR (No. 62193/00) (26 February 2008): in spite of inaction by the public authorities on the applicants’ request for registration of the Roma Church, the applicants had failed to exhaust all domestic remedies as required by Article 35 § 1 ECHR and their application was therefore inadmissible: (2008) 161 L&J 145-146 .
ALEXANDRIDIS v GREECE [2008] ECtHR (No. 19516/06) (21 February 2008) [French text only]: a requirement to swear or to affirm before being allowed to practice as an advocate was in breach of Article 9 ECHR;thefreedom to express religious convictions included the right not to be obliged to express one’s convictions or to be obliged to act in a way that enabled others to draw conclusions about them: (2008) 161 L&J 143-144.
E B v FRANCE [2008] ECtHR [GC] (No. 43546/02) (22 January 2008): though French law expressly granted single persons the right to apply for authorisation to adopt, to require Ms E B – a lesbian – to establish the presence of a referent of the other sex among her immediate circle in order to be eligible to adopt risked rendering ineffective the right of single persons to apply for authorisation: her sexuality had been a consistent feature of deliberations during the administrative and judicial proceedings and she had suffered a difference in treatment as a result, contrary to Article 8 (private and family life): (2008) 160 L&J 50-51.
LARSN Case Database
2011 2010 2009 2008 2007 2006 2005 2004 2003 2002 2001 2000 1990s 1980s 1970s