Strasbourg rules against UK on BA crucifix issue, but rejects three other religious rights challenges

amfhindssilvercrucifixchainb001t9box8Eweida and Others v. the United Kingdom – read judgment

The Strasbourg Court has today come up with something of a mixed message in relation to religion at work. They have voted that there is a right to manifest individual faith by wearing religious adornments but not by objecting to practices that are protected by anti-discrimination legislation.

All four applicants are practising Christians. Ms Eweida, a British Airways employee, and Ms Chaplin, a geriatrics nurse, complained that their employers placed restrictions on their visibly wearing Christian crosses around their necks while at work. Ms Ladele,  a Registrar of Births, Deaths and Marriages, and Mr McFarlane, a Relate counsellor complained about their dismissal for refusing to carry out certain of their duties which they considered would condone homosexuality. Further details of all these cases can be found in our posts here, here, and here (as well as in the “related posts” section below).

All four applicants complained that domestic law had failed adequately to protect their right to manifest their religion. Ms Eweida, Ms Chaplin and Mr McFarlane relied on Article 9 (freedom of religion), taken alone and in conjunction with Article 14 (prohibition of discrimination), while Ms Ladele complained only under Article 14 taken in conjunction with Article 9.

A number of interested parties intervened, including the Equality and Human Rights Commission, The National Secular Society,  The Premier Christian Media Trust,  the Bishops of Chester and Blackburn,  Observatory on Intolerance and Discrimination against Christians in Europe, and Liberty.

The judgment

The Court ruled, by five votes to two, that there had been a violation of Article 9 (freedom of religion) of the European Convention on Human Rights as concerned Ms Eweida; unanimously, that there had been no violation of Article 9 of the European Convention, taken alone or in conjunction with Article 14 (prohibition of discrimination)as concerned Ms Chaplin and Mr McFarlane; and by five votes to two, that there had been no violation of Article 14 taken in conjunction with Article 9 as concerned Ms Ladele.

The Court ruled that under Article 41  the United Kingdom was to pay Ms Eweida 2,000 euros  in respect of non-pecuniary damage and  30,000 euros for costs and expenses.

The following summary is based on the Court’s press release:

Eweida and Chaplin

The Court considered that there had been an interference with both women’s right to manifest their religion in that they had been unable to wear their crosses visibly at work. (It should be noted here that, in common with a large number of Contracting States, with the exception of France and Germany, the wearing of religious clothing and/or religious symbols in the workplace is not specifically regulated by law in the United Kingdom, either in the private or in the public sector.)

As concerned Ms Eweida, who worked for a private company and could not therefore attribute that interference directly to the State, the Court had to examine whether her right freely to manifest her religion had been sufficiently protected within the domestic legal order.  It was clear that the legitimacy of BA’s uniform code and the proportionality of the measures it had taken had been examined in detail by the domestic courts. Therefore, the lack of explicit protection in the UK law in this area did not, in itself, mean that Ms Eweida’s right to manifest her religion had been breached. Nonetheless, the Court concluded in her case that a fair balance had not been struck between, on the one side of the scales, her desire to manifest her religious belief and to be able to communicate that belief to others, and on the other side of the scales, her employer’s wish to project a certain corporate image (no matter how legitimate that aim might be). Indeed, other BA employees had previously been authorised to wear items of religious clothing such as turbans and hijabs without any negative impact on BA’s brand or image. Moreover, the fact that the company had amended the uniform code to allow for visible wearing of religious symbolic jewellery showed that the earlier prohibition had not been of crucial importance. The domestic authorities had therefore failed sufficiently to protect Ms Eweida’s right to manifest her religion, in breach of Article 9. It did not consider it necessary to examine separately her complaint under Article 14 taken in conjunction with Article 9.

On the other hand, the reason for asking Ms Chaplin to remove her cross, namely the protection of health and safety on a hospital ward, was inherently of much greater importance. Moreover, hospital managers were better placed to make decisions about clinical safety than a court, particularly an international court which had heard no direct evidence. The Court therefore concluded that requiring Ms Chaplin to remove her cross had not been disproportionate and that the interference with her freedom to manifest her religion had been necessary in a democratic society. Accordingly, there had been no violation of Article 9 as concerned Ms Chaplin. It also found that there was no basis either on which it could find a violation of Article 14 in the case.

Ms Ladele and Mr McFarlane

The Court considered that the most important factor to be taken into account was that the policies of the applicants’ employers – to promote equal opportunities and to require employees to act in a way which did not discriminate against others – had the legitimate aim of securing the rights of others, such as same-sex couples, which were also protected under the Convention. In particular, in previous cases the Court had held that differences in treatment based on sexual orientation required particularly serious justification and that same-sex couples were in a relevantly similar situation to different- sex couples as regards their need for legal recognition and protection of their relationship.

The authorities therefore had wide discretion when it came to striking a balance between the employer’s right to secure the rights of others and the applicants’ right to manifest their religion. The Court decided that the right balance had been struck and therefore held that there had been no violation of Article 14 taken in conjunction with Article 9 as concerned Ms Ladele, and no violation of Article 9 – taken alone or in conjunction with Article 14 – as concerned Mr McFarlane.

Comment

In these “on the one hand, on the other” fact-dependent judgements, the best place to find the sharp end of Convention interpretation and application is in the dissenting opinions, here provided by Bratza and Björgvinsson in one and De Gaetano and Vučinic in the other.

Proportionality

The first two upheld the majority’s rejection of second, third and fourth applicants, but took objection to the endorsement of the first applicant’s case. They accepted that manifestation of belief in the form of religious ornaments was sufficient to engage Article 9, and that a positive obligation to respect religious belief protected even a private employee. What they did not agree with was the Court’s conclusion that British Airways had acted disporportionately in relation to the first applicant:

the fact that the company’s dress code had for some years caused no known problems to any employee including the applicant herself, who from 2004 until May 2006 appears to have worn a cross concealed under her clothing without objection; the fact that the applicant had originally accepted the requirement of concealing the cross before reporting for work in breach of it, without waiting for the results of a formal grievance complaint which she had lodged with the company; the fact that the issue was conscientiously addressed by BA, which offered the applicant a temporary administrative position within the company which would have allowed her to wear the cross openly without loss of pay

They therefore did not see that the Court of Appeal failed to carry out a fair balance of the competing interests or that their review of the factual circumstances of the case failed adequately to secure the applicant’s Article 9 rights. It was not a question – as the Strasbourg Court conceptualised it – of giving too much weight to BA’s wish to project a certain corporate image and too little to the applicant’s desire to manifest and communicate her religious belief to others. Had the uniform code been stubbornly applied without any regard to the applicant’s repeated requests to be allowed to wear her cross outside her clothing or had her insistence on doing so resulted in her dismissal from employment, they could readily accept that the balance tipped strongly in favour of the applicant. But this was not the case.

The fact that the company was able ultimately to amend the uniform code to allow for the visible wearing of religious symbols may, as the judgment claims, demonstrate that the earlier prohibition was not “of crucial importance”. It does not, however, begin in our view to demonstrate that it was not of sufficient importance to maintain until the issue was thoroughly examined.

For these reasons Judges Bratza and  Björgvinsson would have found that the applicant’s rights under Article 9, read alone or in conjunction with Article 14, were not violated. The right to conscience versus manifestation of belief Judges De Gaetano and Vučinic take an even more interesting – and provocative – position. In their view, the third applicant’s case (the Islington Borough Council employee who refused to attend civil partnership ceremonies involving same sex couples) was not so much one of freedom of religious belief as one of freedom of conscience – that is, that no one should be forced to act against one’s conscience or be penalised for refusing to act against one’s conscience.  They agreed with the intervening European Centre for Law and Justice’s contention that

“[J]ust as there is a difference in nature between conscience and religion, there is also a difference between the prescriptions of conscience and religious prescriptions.”

The kind of prescriptions against eating certain food or the wearing of the turban or the veil, or the display of religious symbols, may be subject to limitations in the manner and subject to the conditions laid down in Article 9(2). But can the same be said with regard to prescriptions of conscience?  These dissenters were of the view that “once that a genuine and serious case of conscientious objection is established, the State is obliged to respect the individual’s freedom of conscience both positively (by taking reasonable and appropriate measures to protect the rights of the conscientious objector) and negatively (by refraining from actions which punish the objector or discriminate against him or her)”.  In that sense, conscience should be accorded a higher level of protection than religious belief:

Freedom of conscience has in the past all too often been paid for in acts of heroism, whether at the hands of the Spanish Inquisition or of a Nazi firing squad. As the ECLJ observes, “It is in order to avoid that obeying one’s conscience must still require payment in heroism that the law now guarantees freedom of conscience.”

In their view the State’s margin of appreciation, whether wide or narrow, does not enter into the equation in matters of individual moral conscience which reaches a required level of seriousness. Indeed the proportionality exercise does not logically come into the equation at all. The issue in the Ladele case was not one of discrimination by any employer or public official vis-à-vis a service user of the Borough of Islington because of the said service user’s sexual orientation. Indeed, as they point out, no service user or prospective service user of the Borough seems to have ever complained about the third applicant. The complainant is not a party or prospective party to a same-sex civil partnership. The aim of the Borough of Islington to provide equal opportunities and services to all without discrimination, and the legitimacy of this aim, is not, and was never, in issue:

No balancing exercise can, therefore, be carried out between the third applicant’s concrete right to conscientious objection, which is one of the most fundamental rights inherent in the human person – a right which is not given by the Convention but is recognised and protected by it – and a legitimate State or public authority policy which seeks to protect rights in the abstract. As a consequence, the Court was not called upon to determine whether “the means used to pursue this aim were proportionate” (§ 106).

What was in issue was “the discriminatory treatment of the third applicant at the hands of the Borough” and therefore it was incumbent upon the local authority to treat her differently from those registrars who had no conscientious objection to officiating at same-sex unions – something which clearly could have been achieved without detriment to the overall services provided by the Borough including those services provided by registrars, as evidenced by the experience of other local authorities.Whether or not one agrees with De Gaetano and Vučinic – their references to the pursuit by the Borough of “the road of obsessive political correctness” will no doubt provoke ire in some circles – their scrupulous division of the individual’s right to respect for conscientious beliefs from the state’s obligation to uphold religious institution’s imposition on their followers of certain rituals, dress and dietary requirements is welcome and well overdue.

Should states owe a “positive obligation” under Article 9?

The arguments of the interveners also add important detail to the positions of the opposing parties. The first point is why, when the first and fourth applicants’ employers were private entities, was the Convention engaged at all? As might be expected, the National Secular Society argued that the “freedom to resign is the ultimate guarantee of freedom of conscience”. Building on this, they suggested that there existed no positive obligation on a State to protect employees against uniform or other requirements. This chimed with the government’s position that these particular complaints did not, therefore, involve any allegation of direct interference by the State, but instead the claim that the State did not do all that was required of it under Article 9 to ensure that their private employers permitted them to give expression to their religious beliefs at work. Positive obligations under Article 9 should only be countenanced where the State’s failure to adopt measures prevented an individual from freely practising his or her religion.

In any event, even if the State did have some positive obligation under Article 9 in relation to the acts of private employers, that obligation was fulfilled in the United Kingdom during the relevant period by the Employment Equality (Religion or Belief) Regulations 2003 (see paragraph 41 above). Regulation 3 defined “discrimination” to include direct religious discrimination (that is, treating an employee less favourably on grounds of his or her religion or belief) and indirect religious discrimination (applying a provision, criterion or practice that places persons of the same religion as the employee at a particular disadvantage and which the employer cannot show was a proportionate means of achieving a legitimate aim).

13 thoughts on “Strasbourg rules against UK on BA crucifix issue, but rejects three other religious rights challenges

  1. According to the Guardian…

    “”The prime minister, who intervened in the debate last summer by saying he might change the law, welcomed the ruling. He wrote on Twitter: “Delighted that principle of wearing religious symbols at work has been upheld – ppl shouldn’t suffer discrimination due to religious beliefs.””

    Am I correct to say Cameron is wrong to suggest that either crucifix wearer was “discriminated” against due to “religious beliefs”? This was either dress code (jewellery) or H and S. In both cases, a Hand of Fatima – can someone suggest a better example*- would equally have been banned, so it was not agaisnt religious beleief? It was a piece of religious _jewellery_.

    I am not a lawyer; lawyers have the logic skills to put my comment more clearly. : )

    * Hand of Fatima is essentially to ward off evil. Worn by some Muslims. Fatima was Mahommet’s daughter.

  2. First off, I think your headline is misleading, in much the same way as contributors to this blog have complained about the reporting practices of publications like the Daily Telegraph and Daily Mail. The fact is that the Court rejected three out of the four claims made. This should have been the main headline for the article above. It should also be noted that Ms Ewida’s claim for £30,000 compensation from her employer was rejected and only 2,000 Euros was awarded, together with costs. In the case of the three other claimants, they received no compensation at all and will have to bear their own costs. Overall, therefore, the Court has rejected fundamentalist religious activism and only barely compensated just one claimant.
    These rulings may turn out to be a pyrrhic “victory” for the ultra-religious lobby. If I were an employer, I would now look very carefully at the religious motivations of potential employees before considering offering them employment as no employer wants to be bothered with having to deal with employees wanting to thrust their religiosity into the faces of their work colleagues and the customers of the business. Religious “troublemakers” will not be welcome.

  3. It seems to me that even asking an applicant about religious motivations is (and should be) a minefield. Like asking about family responsibilities.

    Of course an employer who says “This job involves Saturday and Sunday work, you will be rostered for one weekend in six: can you work that?” and holds the Yea-sayer to that answer is not discriminating against anyone directly and if indirectly then justifiably within the meaning of the law. The need to staff the business and to be fair to all – including the non-churchgoer without dependents – is a legitimate need and making everyone take the same share is a proportionate response to that need.

  4. Just because an argument is novel, it is not necessarily worthy of respect: in academic legal writing dissentients sometimes receive a lot more attention than they deserve. The Maltese and Montenegrin judges – whose language, incidentally, hardly gives an impression of objectivity: (‘the blinkered political correctness of the Borough of Islington which clearly favoured “gay rights” over fundamental human rights’, ‘the doctrinaire line, the road of obsessive political correctness’) – seem to have grasped at a distinction that backfires on their position. If there is significance to the separate mention, in the first limb of Article 9(1), of ‘conscience’ from ‘religion’, then there must also be significance to the fact that the second limb of Article 9(1) – the right to manifest – does not apply to ‘conscience’ at all.

    One clearly has the right to take a conscientious position – in one’s head. But the right to manifest in practice applies only to religion or belief – both of which can be expressed in the form of coherent propositions, whether they relate to climate change or to the doctrine of creation. A conscientious position, however, can be just what one feels ‘in one’s gut’ to be right. It is not necessarily rational or explicable. Subjecting a democratic legal system to every quirk of individual conscience would make the creation and consistent upholding of laws virtually impossible.

    The dissentients’ emotive references to victims of the Inquisition and SS ignores the fact that, if the 16th-century Spanish monarchy or the Third Reich had been amenable to the ECHR, there would have been no need to rely on the second limb of Article 9(1). The Inquisition sought to change its victims’ actual beliefs, not merely their practice, so Spain would have been in violation of the first limb. The Nazi firing squads would have offended against Article 2 conjoined with race, religion and sexual orientation discrimination contrary to Article 14, not primarily against Article 9.

    I have to concur with John D’s criticism of this blog’s misleading headline. This decision is in very large part a vindication of current British equality law. The Government successfully argued that the balance being struck by our legislators and courts, between religious scruple on the one hand and the rights of lesbian and gay people to equal treatment on the other, is already correct. The weaker merits of an airline’s corporate image were not enough on their own to win the day, but even here there was room for two assessments of the facts. Although the case seems fated to go down in history as ‘Eweida’, in fact the decision in relation to the first applicant is its least significant aspect.

    • Very doubtful (in my view) that the dissenting judges in Ladele were right to see her case in terms of conscientious objection. As far as I can see, even Ladele did not argue that it was.

  5. I take the point about the title and have added to it, although given that the first paragraph makes clear that this wasn’t the only aspect of the judgment, I don’t think there is any danger of misunderstanding. I also disagree that this judgment amounted to any kind of wide ranging vindication of the UK’s position on religious rights – that is reading more into it than was there. The individual cases were considered on their particular merits, with some reference to wider principle.

    • Adam,

      If you are the man who writes in the Guardain, I would like to see some comment there on Cameron’s pledge to bring in a law to allow the wearing of religious symbols.

      Are there pitfalls and traps there?

      (I am a careully considered atheist (from Ulster, so I need to add I am a Protestant atheist). As an atheist am I discrimnated agaist if there is a law specifically for the religious. And many Christians insist that atheism is, in itelf, a religion.)

  6. There is one final point to this judgment which needs to be kept in mind: I noticed that Ms Eweida’s cross was on a fairly robust looking metal ring around her neck. Her role, as a baggage checker, involves her very directly in a relationship with members of the public. It is possible that an irate member of the public could grasp the metal ring around her neck and use it to pull her face down on to the counter behind which she works. If this were to happen, would she indemnify her employer against any resulting damage or injury to her face or body – or would this then constitute a further basis for her to claim compensation from her employer for their failutre to protect her? Based on the unreasonable conduct of this claimant, I can only assume she would be utilising this aspect of the “compensation culture” to make further claims. I am surprised that BA or its counsel did not stress this aspect of her employer wishing to safeguard her personal security. Still, one cannot always think of everything, can one?

  7. Can someone answer these two questions for me?

    1. Cameron tweeted:

    “Delighted that principle of wearing religious symbols at work has been upheld – ppl shouldn’t suffer discrimination due to religious beliefs.””

    Is Cameron right to use the word “discrimination” for what had happened?

    I am an interested amateur at human rights. I will read the whole judgement in due course, and what is here.

    At a quick glance, the two cross-wearers were not able to “mainifest” their religion. So is this different to being “discriminated” against?

    (And, if there was no discrimination, should Cameron take some legal advice before tweeting?)

    2. Only France and Germany have laws about religious emblems. In France they are banned in state spaces. But Gemany? In Germany are they banned or specifically allowed?

    Thanks to anyone who can relpy.

    TH

  8. It’s quite a judgment to read but I think the European Court of HR did a good job of concentrating on the key human rights points. Where does it leave us?

    Basically:

    The wearing of a cross is a manifestation of the Christian religion but, as Article 9(2) states, it may be restricted for reasons stated in the Article. Any restrictions to be prescribed by law and necessary in a democratic society. Eweida won: Chaplin lost. Very fact-dependent cases and it is where the balance falls.

    Those in employment are going to have considerable difficulty arguing that religious beliefs prevent them providing services to others – such as registration of civil partnerships, offering counselling to those who need it. There is however a nuance in that the ‘you can resign if you don’t like it’ idea will need further examination and may make matters a little harder for employers.

    A vast amount of intolerance comes through these cases – too much to list in full here. Almost nobody involved comes out of it smelling of roses do they? The E Ct HR did well to find a course through all of this. Had Eweida’s conduct been better then she might have got more by way of ‘just satisfaction.’

  9. If an amateur may comment, surely each case could have been decided much more easily on the basis that harm to people, or the threat of harm, should be minimised wherever possible? Ms Eweida’s cross caused little or no harm to others; Ms Chaplin’s cross was potentially harmful, while the behaviour of Ms Ladele and Mr McFarlane was clearly harmful.

    People who demand that they be allowed to harm others on grounds of conscience are being unreasonable and ought to be resisted. But if they are not harming others, they should be free to do as they wish.

    If this standard had been applied at the start, much trouble and expense would have been avoided. And the result would have been the same.

  10. This case is an important reminder for the need for our usual domestic courts to be supervised by a higher, transparent and enriched judiciary comprising and representative of our community and more importantly our Union. The judgement is delivered by seven distinguished members of the court including our very own representaive namely, Nicolas Bratza. The court in deliverying the judgement consulted experts in this field by way of two members of the British clergy, one a former Archbishop and the other a prominent Bishop who converted to Christianity from Islam (but it would appear not to have relinquinshed his Islamic names!).

    The review and analysis of the issues is also an important reminder as to this need for supervision and careful analysis of international or eastablished jurisprudence. The courts reminded us that there must be a manifest and legitimate religious belief that one holds before one can challenge a state’s, public or even private (as the above case was brought against BA, a private company beit striving for publc service and deliverance) interference, which must be legitimate and more importantly proportionate, to that extent necessary in a democratic society that strives towards equality, morality and security for all. The court distinguished between an interferance by a private company (BA) and one of sanctions being imposed by public bodies which automatically trigger the HRA. The courts found that the sanctions imposed on the three public employee’s in not conforming to the legitimate aims of equality, morality and religious freedom of others established by domestic law was objectively both legimate and proportinate, particularly as the employee had a choice to be employed or choice another career path in line with their particular views. This reinforces the state’s ideas as well as international influence on our changing views on freedom of thought, conscience and religion.

    The ony case to have won the argument was that of Ms EWEIDA under Article 9, as the interferance imposed by BA a private body on her manifest religious freedom to wear a visible cross at work was unlawful. Although, the court found no direct or indirect discrimination which our domestic courts pre-occupied itself with, it nonetheless held that the margin of appreciation employed by BA was narrow given that there were no complaints on her wearing of the cross or indeed any corporate negative impact upon it’s image, which incidentally BA reacted by changing its policy after public coverage in extending permitted wearing of the star of David in addition to the hijjab; the ease in which it was able to change its policy or clothing code was a relevant factor in determination of that restriction. In its minority judgement the court also reminded us to distinguish between a relious belief that is prescriptive and one that is based upon a manifest belief which is absloute, though it is by no means clear as to whether wearing of the cross is a prescription of the christian faith. But what is clear is that the applicant here has that right to wear a cross in the absence of any safety, moral and inteference of others. This therefore calls for a balanced view, one that appeals across all faiths devoid of all prejudices or otherwise for the betterment of the community, society and our Union representative of all our citizens, the governed. It is also a gentle reminder to all those institutions private or otherwise that it is the people that make, represent the institution and not the other way round, which is sadly systematic in our country and must not be forgotten.

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