Challenging Discrimination

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Challenging Discrimination

• Catrin Lewis

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Article 14general non-discrimination provision

• The enjoyment of the rights and freedoms set
  forth in this Convention shall be secured without
  discrimination on any ground such as sex, race,
  colour, language, religion, political or other
  opinion, national or social origin, association
  with a national minority, property, birth or
  other status.

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Use of other articles

• Other rights have also been used to challenge
  particular types of discriminatory treatment -
  most notably,
• Article 8 (the right to respect for private life)
  and
• Article10 (freedom of expression) in relation to
  sexual orientation discrimination, and
• Article 9 (the right to freedom of thought,
  conscience and religion) in relation to
  discrimination on grounds of religion or belief.

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Article 14 - limitations

• Article 14 itself has inherent limitations, due
  to the need to combine it with another right
  before it can be used in UK law
• The implementation of the Equal Treatment
  Framework Directive in the UK means there is
  little need for the HRA to intervene to ensure
  that key minority groups are protected l

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Protocol 12 of the Convention

• The UK has chosen not to ratify Protocol 12
• a free-standing right to equality
• prohibits discrimination in relation to any right
  set forth by law.

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When is Article 14 engaged

• Ghaidan v. Godin-Mendoza,
• House of Lords confirmed that it was not
  necessary to establish a definite breach of
  another right in order to bring in Article 14,
• Only need to establish the provision under
  scrutiny falls within the ambit of that right

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Article 8 - right to respect for private life

• Article 8 has been relied on successfully by
  employees claiming protection from discrimination
  on the basis of sexual orientation
• Smith and Grady v. U.K
• Lustig-Prean and Beckett v UK
• dismissal from the military on the grounds of
  homosexuality. investigations by military police
  into the applicants personal lives, and the
  applicants subsequent discharge from the
  military on the sole ground of their sexual
  orientation, were an unjustified interference
  with the right to respect for their private lives
  

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Article 9 - right to freedom of thought,
conscience and religion

• Ahmad v. U.K a Muslim schoolteacher who required
  time off on Fridays for prayer
• Stedman v. U.K a Christian employee who did not
  wish to work on Sundays
• Kontinnen v. Finland a Seventh Day Adventist who
  wished to leave work before sunset on Fridays
• not an infringement to require compliance with
  the employment contract

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Article 9 - dress codes

• Sahin v Turkey headscarf ban implemented by a
  Turkish University was necessary in a democratic
  society (Articles 8 and 10 were also relied on)
• R (Begum) v Headteacher and Governors of Denbigh
  High School, no interference with Article 9
  rights when a schoolgirl was excluded for failure
  to comply with the required dress code, on the
  basis that she could have attended three other
  schools in the area which would have permitted
  her to wear the jilbab

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HRA and current discrimination law

• Race Equality Directive
• Equal Treatment Framework Directive
• discrimination in the workplace on grounds of
  disability, age, religion or belief, and sexual
  orientation
• Equality Act 2010
• presumption by the Strasbourg Court that a
  country will not have departed from Convention
  rights when implementing legal obligations
  arising from membership of the EU