The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: The Regulation was within the scope of the Directive. Though a member state had some freedom in implementing a directive, the court must seek to interpret the Regulations to give effect to the directive. Sexual orientation might exceptionally be part of a genuine occupational requirement. The derogation from the duty of equal treament was tightly drawn: ‘the weight to be given to religious rights may depend upon how close the subject-matter is to the core of the religion’s values or organisation.’
The respondent submitted that there was no direct discrimination since the ground of the difference in treatment was marriage, not sexual orientation and the difference in treatment between married and unmarried couples did not amount to indirect discrimination since married and unmarried couples are not in a materially similar situation. Richards J answered: ‘I am inclined to agree with the submissions for the Secretary of State both as to the absence of direct discrimination and as to the absence of indirect discrimination. The consistent approach [of the ECJ] . . has been to hold that married partners are not in a comparable position to same-sex partners. It is true that until [the Directive] came into force there was no prohibition of discrimination on grounds of sexual orientation in Community law. There is also some force in [the] submission that the application of a condition with which same-sex partners are unable to comply because they are precluded from marrying is discriminatory. I am not persuaded, however, that those considerations . . justify the conclusion that [the] previous statements [of the ECJ] as to the lack of comparability between marriage and other relationships no longer hold good.’
Judges:
Mr Justice Richards
Citations:
[2004] EWHC 860 (Admin), [2004] IRLR 430, [2007] ICR 1176
Links:
Statutes:
Employment Equality (Sexual Orientation) Regulations 2003, Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, European Convention on Human Rights
Jurisdiction:
England and Wales
Citing:
Cited – Regina (Williamson and Others) v Secretary of State for Education and Employment CA 12-Dec-2002
The claimants sought a declaration that the restriction on the infliction of corporal punishment in schools infringed their human right of freedom of religion. The schools concerned were Christian schools who believed that moderate corporal . .
Cited – Regina v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, Ex parte Wachmann 1992
A local rabbi sought judicial review of the declaration of the Chief Rabbi, following an investigation into allegations of adultery with members of his congregation, that he was religiously and morally unfit to occupy his position.
Held: Simon . .
Cited – X v Denmark ECHR 1976
Admissibility decision – state interference in appointment of clergyman. A clergyman was held to have accepted the discipline of his church when he took employment, and his right to leave the church guaranteed his freedom of religion. . .
Cited – Hasan and Chaush v Bulgaria ECHR 26-Oct-2000
The Grand Chamber considered executive interference in the appointment of the Chief Mufti of the Bulgarian Muslims: ‘Where the organisation of the religious community is at issue, Article 9 must be interpreted in the light of Article 11 of the . .
Cited – von Colson and Kamann v Land Nordrhein-Westfalen ECJ 10-Apr-1984
LMA Art.177[Art.234] EC proceedings – Ms Van Colson had applied for a job with the prison service and Ms Harz had applied for a job with a private company Deutsche Tradex GmbH. Both had been rejected. The German . .
Cited – Litster and Others v Forth Dry Dock and Engineering Co Ltd HL 16-Mar-1989
The twelve applicants had been unfairly dismissed by the transferor immediately before the transfer, and for a reason connected with the transfer under section 8(1). The question was whether the liability for unfair dismissal compensation . .
Cited – Pickstone v Freemans Plc HL 30-Jun-1988
The claimant sought equal pay with other, male, warehouse operatives who were doing work of equal value but for more money. The Court of Appeal had held that since other men were also employed on the same terms both as to pay and work, her claim . .
Cited – Marleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
Cited – Commission v Luxembourg (Judgment) ECJ 12-Jun-2003
Europa Failure of a Member State to fulfil obligations – Telecommunications – Rights of way – Failure to transpose Directive 90/388/EEC effectively. . .
Cited – Evans v The Secretary of State for the Environment, Transport and the Regions and The Motor Insurers’ Bureau ECJ 4-Dec-2003
ECJ Reference for a preliminary ruling: High Court of Justice (England and Wales), Queen’s Bench Division – United Kingdom. Approximation of laws – Directive 84/5/EEC – Compulsory insurance against civil . .
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Regina v Secretary of State for the Environment Transport and the Regions and another, ex parte Spath Holme Limited HL 7-Dec-2000
The section in the 1985 Act created a power to prevent rent increases for tenancies of dwelling-houses for purposes including the alleviation of perceived hardship. Accordingly the Secretary of State could issue regulations whose effect was to limit . .
Cited – Smith and Grady v The United Kingdom ECHR 27-Sep-1999
The United Kingdom’s ban on homosexuals within the armed forces was a breach of the applicants’ right to respect for their private and family life. Applicants had also been denied an effective remedy under the Convention. The investigations into . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Cited – Johnston v Chief Constable of the Royal Ulster Constabulary ECJ 15-May-1986
The principles of the European Convention for the Protection of Human Rights must be taken into consideration in community law. The principle of effective judicial control laid down in article 6 of Council Directive 76/207, a principle which . .
Cited – Hibbs and Birmingham v United Kingdom ECHR 18-Jul-1996
Quakers objected to the obligation to contribute through general taxation to funds which may then be used by the State for arms procurement.
Held: The Convention is directed primarily to the personal sphere of personal belief and worship and . .
Cited – Tinnelly and Sons Ltd and Others and McElduff and Others v United Kingdom ECHR 10-Jul-1998
Legislation which disallowed claimants who asserted that they had been discriminated against, on the grounds of their religious background, from appealing through the courts system, was a clear breach of their human rights. A limitation will not be . .
Cited – Hibbs and Birmingham v United Kingdom ECHR 18-Jul-1996
Quakers objected to the obligation to contribute through general taxation to funds which may then be used by the State for arms procurement.
Held: The Convention is directed primarily to the personal sphere of personal belief and worship and . .
Cited – Olsson v Sweden (No 1) ECHR 24-Mar-1988
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Violation of Art. 8; Non-pecuniary damage – financial award; Costs and expenses award – domestic proceedings; Costs . .
Cited – KB v National Health Service Pensions Agency and Secretary of State for Health ECJ 7-Jan-2004
The claimant had for a number of years had a relationship with a trans-sexual. They had been unable to marry because English law would not recognise a marriage. She compained that on her death her partner would be unable to claim the pension awarded . .
Cited – D and Kingdom of Sweden v Council of the European Union ECJ 31-May-2001
Europa The intention of the Community legislature was to grant entitlement to the household allowance under Article 1(2)(a) of Annex VII to the Staff Regulations only to married couples. Only the legislature can, . .
Cited – Lindsay v United Kingdom ECHR 1986
The position of married couples is not comparable with the position of unmarried couples, so that differences in treatment between them do not amount to discrimination within the meaning of article 14 of the convention. . .
Cited – Inge Nolte v Landesversicherungsanstalt Hannover ECJ 14-Dec-1995
Europa Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security must be interpreted as meaning that persons in employment which is . .
Cited – Grant v South West Trains Ltd ECJ 17-Feb-1998
A company’s ban on the provision of travel perks to same sex partners of employees did not constitute breach of European sex discrimination law. An employer’s policy was not necessarily to be incorporated into the contract of employment. The court . .
Cited – Ghaidan v Godin-Mendoza CA 5-Nov-2002
The applicant sought to succeed to the tenancy of his deceased homosexual partner as his partner rather than as a member of his family.
Held: A court is bound by any decision within the normal hierachy of domestic authority as to the meaning . .
Cited – D and Kingdom of Sweden v Council of the European Union ECJ 31-May-2001
Europa The intention of the Community legislature was to grant entitlement to the household allowance under Article 1(2)(a) of Annex VII to the Staff Regulations only to married couples. Only the legislature can, . .
Cited – Seymour-Smith and Perez; Regina v Secretary of State for Employment, Ex Parte Seymour-Smith and Another ECJ 9-Feb-1999
Awards made by an industrial tribunal for unfair dismissal are equivalent to pay for equal pay purposes. A system which produced a differential effect between sexes was not indirect discrimination unless the difference in treatment between men and . .
Cited – The Sunday Times (No 1) v The United Kingdom ECHR 26-Apr-1979
Offence must be ;in accordance with law’
The court considered the meaning of the need for an offence to be ‘in accordance with law.’ The applicants did not argue that the expression prescribed by law required legislation in every case, but contended that legislation was required only where . .
Cited – Hooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions CA 18-Jun-2003
The appellants were widowers whose wives had died at a time when the benefits a widow would have received were denied to widowers. The legislation had since changed but they variously sought compensation for the unpaid sums.
Held: The appeal . .
Cited – Anufrijeva v Secretary of State for the Home Department CA 22-Mar-2002
Three asylum-seekers brought claims of breach of their Article 8 rights. One complained of a local authority’s failure to provide accommodation to meet special needs, the other two of maladministration and delay in the handling of their asylum . .
Cited – Michalak v London Borough of Wandsworth CA 6-Mar-2002
The appellant had occupied for a long time a room in a house let by the authority. After the death of the tenant, the appellant sought, but was refused, a statutory tenancy. He claimed to be a member of the tenant’s family, and that the list of . .
Mentioned – Salgueiro Da Silva Mouta v Portugal ECHR 21-Dec-1999
There was a difference in treatment between the applicant and a comparator based on the applicant’s sexual orientation, a concept which is undoubtedly covered by Article 14. The list set out in this provision is of an indicative nature and is not . .
Cited – Otto-Preminger-Institut v Austria ECHR 20-Sep-1994
Balance of Religious Tolerance and Freedom
The Institut operated a cinema. It announced a showing of a film ‘Das Liebenconzil’. Proceedings were brought against it, on complaint by the Roman Catholic Church, in which it was accused of ‘disparaging religious doctrine’. The film was seized . .
Cited – Bowman v The United Kingdom ECHR 19-Feb-1998
UK Electoral law went too far to restrict freedom of speech when limiting the amounts spent by third parties discussing candidates. The legislative provision in question was held to operate, for all practical purposes, as a total barrier to Mrs . .
Cited – Regina v Lord Chancellor ex parte John Witham Admn 7-Mar-1997
If subordinate legislation cannot be construed in a way that makes it compatible with fundamental rights, it will be declared ultra vires. Rules which disallowed exemptions from court fees to a litigant in person on income support were invalid. They . .
Cited by:
Cited – Regina v Secretary of State for Education and Employment and others ex parte Williamson and others HL 24-Feb-2005
The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner. . .
Cited – Age UK, Regina (On the Application of) v Attorney General Admn 25-Sep-2009
Age UK challenged the implementation by the UK of the Directive insofar as it established a default retirement age (DRA) at 65.
Held: The claim failed. The decision to adopt a DRA was not a disproportionate way of giving effect to the social . .
Cited – Bull and Bull v Hall and Preddy CA 10-Feb-2012
The appellants owned a guesthouse. They appealed from being found in breach of the Regulations. They had declined to honour a booking by the respondents of a room upon learning that they were a homosexual couple. The appellants had said that they . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination, Human Rights
Updated: 03 June 2022; Ref: scu.195971
