Religious Discrimination and the European Convention on Human Rights
Today the European Court of Human Rights (ECHR) delivered its judgment in the cases of Eweida and Others. The applicants originally brought religious discrimination cases against their respective employers and lost. In taking their cases to Strasbourg, the applicants sought a ruling from the ECHR that UK law had failed to protect their human rights.
In total the cases concerned four applicants; Ms Eweida and Ms Chaplin, and Ms Ladele and Mr McFarlane. The facts of each of the cases have been widely reported in the media. Ms Eweida and Ms Chaplins’ cases relate to the wearing of religious symbols at work whereas Ms Ladele and Mr McFarlanes’ cases concern refusing to follow instructions at work for religious reasons in the context of competing rights not to be discriminated against on grounds of sexual orientation.
All four applicants relied upon on Article 9 of the European Convention on Human Rights. Article 9 states:
- Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance
- Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.
In summary, the issues for the ECHR to decide were as follows: (i) were the applicants were prevented from ‘manifesting’ their beliefs? (ii) If so, was the interference by their employers a breach of Article 9.1? (iii) Finally, if it was a breach, was it justifiable under Article 9.2 because it was ‘necessary in a democratic society… [to protect] the rights and freedoms of others’?
Ms Eweida is a practising Coptic Christian who began working as part of the British Airways Check-in staff in 1999. The company uniform policy stated:
“Any accessory or clothing item that the employee is required to have for mandatory religious reasons should at all times be covered up by the uniform. If however this is impossible to do given the nature of the item and the way it is to be worn, then approval is required through local management as to the suitability of the design to ensure compliance with the uniform standards, unless such approval is already contained in the uniform guidelines. … NB No other items are acceptable to be worn with the uniform. You will be required to remove any item of jewellery that does not conform to the above regulations.”
Ms Eweida wore a small silver cross around her neck which until May 2006 she kept hidden under the uniform in accordance with the policy. On 20 May she wore the cross openly and was asked to cover it up by her manager. On 7 August 2006 she wore the cross openly and again was told she had to comply with the uniform policy or she would be sent home unpaid. On 20 September 2006 she refused to cover up her cross and was sent home without pay. In October she turned down an offer to work in administrative role without customer contact which would have allowed her to keep her cross on display. From 1 February 2007 British Airways adopted a new policy allowing the display of religious symbols over the uniform. Ms Eweida returned to work from 3rd February 2007.
The ECHR held that although it was not compulsory for Christians to wear a cross, Ms Eweida’s decision to do so was indeed a manifestation of her religious belief and was therefore protected by Article 9.
The ECHR also held that the refusal by British Airways to allow her to remain in her post while visibly wearing a cross amounted to an interference with her right to manifest her religion. The Court was then required to examine whether in all the circumstances the UK complied with its obligation under Article 9 to secure Ms Eweida’s right to manifest her religion and whether a fair balance was struck between her rights and those of others.
The ECHR held that in this particular case a fair balance had not been struck. It considered Ms Eweida’s right to manifest her religious belief on the one hand against the employer’s wish to project a certain corporate image on the other and decided that the UK courts had given the employer’s aims too much weight. The judgment cites the fact that there was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image. Moreover, the ECHR decided the fact that the company now allow for the visible wearing of religious symbolic jewellery demonstrates that the earlier prohibition was not of crucial importance.
The ECHR therefore concluded that, in circumstances where there is no evidence of any real encroachment on the interests of others, the UK failed sufficiently to protect Ms Eweida’s right to manifest her religion, in breach of the positive obligation under Article 9.
Ms Chaplin was employed as a nurse by the Royal Devon and Exeter NHS Foundation Trust from April 1989 to July 2010. She has worn a cross around her neck since her confirmation in 1971. The Hospital’s uniform code said this:
“5.3.6 To minimise the risk of cross infection will be [sic] keep jewellery to a minimum (see 5.1.11). That is:
- One plain smooth ring which will not hinder hand hygiene,
- One pair of plain discreet earrings.
- No necklaces will be worn to reduce the risk of injury when handling patients.
- Facial piercing if present should be removed or covered.”
It also stated:
“Any member of staff who wishes to wear particular types of clothes or jewellery for religious or cultural reasons must raise this with their line manager who will not unreasonably withhold approval.”
In June 2007, new uniforms were introduced which included a V-necked tunic. Ms Chaplin wore a small crucifix on a chain around her neck. In June 2009 she was asked to remove it for health and safety reasons. She refused to do so and discussions began to find a potential solution. Ms Chaplin refused to wear a turtle neck T-shirt under her uniform so that the necklace would be covered up because she felt that displaying the cross to others was an essential part of her faith. She also refused to wear the crucifix and chain secured firmly to the lanyard which held her identity badge rather than around her neck. In November 2009 she was moved to a non-nursing temporary position which lasted until her employment terminated.
As with Ms Eweida, the ECHR held Ms Chaplin’s determination to wear the cross and chain at work was a manifestation of her religious belief. It also held the refusal by the health authority to allow her to remain in post while wearing the cross was an interference with her freedom to manifest her religion.
Ms Chaplin’s case however was not successful because the ECHR held that the interference with her right to manifest her religious belief was justifiable for the health and safety reasons given by the hospital authorities. It followed that the interference with her freedom to manifest her religion was “necessary in a democratic society” and that there was no violation of Article 9.
Ms Ladele is a Christian who believes that civil partnerships are contrary to God’s law. She worked for the London Borough of Islington from 1992 until 2009. In 2002 she became a registrar of births, marriages and deaths. When the Civil Partnerships Act 2004 came into force on 5 December 2005 Islington designated all of its Registrars of Births Marriages and Deaths as Civil Partnership Registrars. They did not allow any of their Registrars to ‘opt-out’, an approach some other Local Authorities had adopted for people with sincere religious objections.
Initially, Ms Ladele was allowed to make informal arrangements with colleagues to avoid carrying out civil partnerships. In March 2006, two Registrars complained her refusal was discriminatory. In May 2007 disciplinary proceedings were commenced against Ms Ladele on the basis that she was in breach of their “Dignity for All” policy. A disciplinary hearing took place on 16 August 2007 following which Ms Ladele could be excused from conducting civil partnership ceremonies but would be required to undertake straightforward signings of the register and other administrative tasks associated with civil partnerships. She refused and brought discrimination proceedings in November 2007. At the time of the Tribunal decision she was still employed by Islington, but she resigned in September 2009.
The ECHR agreed that the local authority’s requirement that all registrars of births, marriages and deaths be designated also as civil partnership registrars had a particularly detrimental impact on Ms Ladele because of her religious beliefs. The question for the ECHR was whether their reasons for doing so were legitimate and proportionate in the circumstances.
The ECHR concluded it was evident that the aim pursued by the local authority to prevent discrimination on grounds of sexual orientation under its “Dignity for All” policy was legitimate. The question was whether it was proportionate in the circumstances.
The ECHR held that national authorities have wide discretion when striking a balance between competing rights under the Convention. In this case it held that neither the local authority employer which brought the disciplinary proceedings nor the domestic courts which rejected Ms Ladele’s discrimination claim had acted out with the margin of appreciation available to them. Accordingly, there was no violation of Article 9.
Mr McFarlane is a Christian who believes that homosexuality is sinful and that he should do nothing to directly endorse it. He worked for Relate Avon Ltd as a counsellor from May 2003 until March 2008. He initially had concerns about counselling same-sex couples but after a discussion with his manager agreed that counselling did not involve any endorsement of the relationship.
In 2007 he began Relate’s Post-Graduate Diploma in Psycho-Sexual Therapy (PST) which is concerned with improving a couple’s sexual activity with a view to improving the overall relationship. However by late 2007 there was a perception that he was unwilling to work on sexual issues with same-sex couples. He was asked to provide written confirmation and he replied that he was happy to counsel same-sex couples but that his views were still evolving with respect to PST. That was taken as a refusal to comply and disciplinary proceedings began. The proceedings were dropped but the issue arose again early the following year. Mr McFarlane was ultimately dismissed for gross misconduct on 18 March 2008 on the basis that he had said that he would undertake sexual counselling of same sex couples when in fact he had no intention of doing so.
The ECHR accepted Mr McFarlane’s refusal to undertake to counsel homosexual couples was a “manifestation” of his religion and belief which the UK was under an obligation to protect.
The ECHR then had to determine whether the UK had complied with its obligation under Article 9 and whether a fair balance had been struck between the competing interests of Mr McFarlane on the one hand and potential homosexual clients of his employer on the other. As with Ms Ladele’s case, the ECHR decided the UK courts had not acted out-with the margin of appreciation available to them so there was no violation of Article 9.
In light of the outcome of Ms Eweida’s case, employers ought to take care to ensure they accommodate reasonable requests in respect of uniform.
More generally, the ECHR judgment highlights that the determination of cases such as these will continue to turn on the particular facts of each case. UK law is adequate insofar as it exists to protect the human right to hold and manifest religion or belief in these circumstances. Nevertheless, the judgment is a reminder of the weight to be attached to this fundamental right against interference by employers and the balancing act that the courts have to undertake.
For further information relating to discrimination, please contact Robert Holland.