[By Peter Smith]
CV Comment readers will recall the case of Celestina Mba, the Baptist sacked by a London council because she did not want to work on Sundays, which (following the Fourth Commandment) she regarded as exclusively for rest and worship.
Mrs Mba was unsuccessful before the Court of Appeal. She had a right not be discriminated against on behalf of her faith, but had contractually agreed to be available to work Sundays. The council’s obligation was to provide round-the-lock, 24/7 continuity of care in a home for children. The obligation on employees was deemed proportionate to that aim.
Mrs Mba was subsequently denied leave to appeal to the UK’s Supreme Court (UKSC), and is understood to be considering appealing to the European Court of Human Rights (ECtHR).
What will happen there? As also indicated previously on CV Comment, ECtHR has moderately strengthened religious freedoms in the UK in its decision in Eweida and others. One interesting aspect of Mrs Mba’s case, should it go to Strasbourg, will be to see whether the ECtHR continues to address the overlapping and somewhat confusing layers of law that simultaneously tackle discrimination on grounds of religion or belief and protect manifestations of religion or belief. In the UK, the law is drawn from statutes that incorporate European Union law (such as the Equality Act 2010) and the ECtHR’s own jurisprudence on the European Convention on Human Rights (via the Human Rights Act 1998).
The reasonable accommodation of religious freedom
Mrs Mba’s case clearly raised the possibility of a new framework governing situations in the workplace where an employee’s religion or belief collides with an employer’s demands. It is a framework known as the reasonable accommodation of religious freedom.
Such a framework exists already in other common law jurisdictions, among them the United States. In Canada, employers are obliged to protect their employees’ religious rights without unduly influencing those rights. In simple terms, any discriminatory measure which impinges on religious freedom is subject to a standard test. The employer must show that the discriminatory standard is for a purpose rationally connected to the performance of the employment; that the standard was adopted in the honest belief with good faith that it was necessary to the fulfilment of that legitimate work-related purpose; and that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose.
Baroness Hale, the Deputy President of the UK Supreme Court, is the leading specialist on the judicial benches on matters of discrimination and employment law (last July it was she who rejected Mrs Mba’s application for permission to appeal to the Supreme Court). She considers that a Canadian-style reasonable accommodation test might be a better way of balancing the religious freedoms of employees against the rights of their employers, and has publicly said so on several occasions.
The Scottish midwives
Her most recent mention of reasonable accommodation was in the Supreme Court’s final judgment of 2014, where she gave the leading (and only) judgment of the Court in what has come to be known as the Scottish midwives’ case over conscientious objection to abortion.
That objection was spelled out in the 1967 Abortion Act. Section 4 of the Act says:
[N]o person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection.
The burden of proof of conscientious objection is on the person claiming it, and the right to conscientious objection does not affect any duty to participate in treatment which is necessary to save the life of or to prevent grave permanent injury to the physical or mental health of a pregnant woman.
Two Catholic midwives, Mary Doogan and Concepta Wood, were employed as ‘Labour Ward co-ordinators’ at a hospital in Glasgow. They were excellent midwives with many decades of experience between them. They held (and continue to hold) the orthodox Christian belief that human life begins at conception and abortion is the wrongful killing of human life.
The hospital decided that, from 2010, in cases of foetal abnormality (and occasionally other medical reasons), the Fetal Medicine Unit would routinely administer the first dose of medication to induce premature labour in any mother who decided on termination. The mother would then be returned to the Labour Ward for the remainder of the process to occur.
The extent of conscientious objection
As their titles suggest, Mrs Doogans and Mrs Wood were employed to manage and co-ordinate aspects of the Labour Ward. The midwives complained that hospital’s reorganisation would breach their right to conscientious objection, as they would be delegating, supervising or supporting staff to participate in and provide care to patients throughout the termination process.
Following split decisions at first instance and on appeal, the Supreme Court had to decide what ‘participating in any treatment’ meant for the purposes of the Act, and whether the co-ordinators’ duties fell within the protection afforded.
The midwives argued that any looking after of women who had just had abortions fell within s.4., whether it involved receiving and dealing with the initial telephone call, booking the patient into the Labour Ward, supervising the staff looking after the patient both before and after the procedure, as well as to the direct provision of any care for those patients.
The Royal College of Midwives, in contrast, considered only ‘direct’ involvement in a termination fell within s.4, and the hospital largely agreed with that interpretation, viewing ‘treatment’ as the narrow process starting with the administration of labour-inducing medication and ending with the “expulsion of the products of conception” (Lady Hale’s description).
This treatment, the hospital argued, did not cover many other tasks like fetching the drugs used, making bookings, providing aftercare, administrative and managerial tasks such as allocating resources and assigning staff, and supervising nurses – all tasks the co-ordinators were expected to carry out as part of their employment.
Lady Hale considered two previous judicial decisions that looked at the meaning of treatment under the Act, the Royal College of Nursing and Janaway cases. She concluded that the purpose of the Act was to carve out an exception to what generally unlawful, i.e. the killing of unborn children; it did not affect what was lawful before the Act came into force. The right under s.4 only applied to the narrow range of activities that fell into the first category (of acts now lawful under the Act), not the second.
She took a narrow view of both “treatment” and “participation,” saying that it meant taking part in a “hands-on” capacity [para.38] Thus the vast majority of the tasks the midwives did not want to participate in fell outside the protections of the conscience clause.
There is much to rue in the judgment. As the Catholic barrister Neil Addison points out in a stinging set of criticisms, Lady Hale cited no debates when divining Parliamentary intention; she compared the relationships midwives had to abortion treatment those of cleaners within hospitals when in fact the midwives were medical professionals with considerably more central roles in patient care; and she commented on other matters, like the objector’s obligation to refer to another medical professional, without being asked to and without hearing full arguments on the point.
The practical effects of the judgment are likely to further dissuade practising Catholics and others from entering specialisations in the medical profession such as obstetrics and gynaecology, or becoming midwives or otherwise working in maternal and infant health and on labour wards.
The decision will (unless superseded) contribute to the building of silos in medicine, where whole fields become fenced-off by managers unwilling to allow flexible working practices.
Should the midwives have been ‘reasonably accommodated’?
Yet there is hope in two of the matters Lady Hale labelled “distractions”.
The first is whether the religious basis for the midwives’ objections would be protected under human rights law (the s.4 protection of conscience is absolute, and does not depend on why a person objects to participating in abortion). As Lady Hale noted, refusing for religious reasons to perform some of the duties of a job is likely to be a protected manifestation of a religious belief, following the ECtHR in Eweida, but it could still be qualified at the hospital’s insistence if the restrictions on the right were a proportionate measure for a legitimate aim.
The second is whether, even if not protected by the conscience clause, the midwives may claim that the hospital “should have made reasonable adjustments to the requirements of the job in order to cater for their religious beliefs” (para.24). This will depend in part, said Lady Hale, on “the practicability” of the accommodation.
Yet, as Neil Addison notes, the Judge herself found that since 2010 there had been about 6000 births a year at the hospital, and just under 60 terminations a year on the Labour Ward. Given this, he wonders whether “it would not have caused [the hospital] any real difficulties to have reasonably accommodated the conscientious objections of these midwives.”
The midwives’ case has been remitted to the employment tribunal in a bid to resolve their grievances with the hospital. The reasonable accommodation test may provide assistance in this case, and develop protections for Catholics and other Christians in the workplace.
[Peter Smith is a barrister]