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.
“[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.”
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.”
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).
