The court ruled in favor of the religious person in one out of the four cases
The cases were brought by four Christians of different denominations who argued that their right to manifest religious beliefs had been unjustifiably restricted, in breach of article nine of the European Convention on Human Rights, which guarantees the right to manifest religious belief in “worship, teaching, practice and observance”, subject only to such restrictions as are “prescribed by law and are necessary in a democratic society”.
Only one applicant, Nadia Eweida, won her case.
Former British Airways employee Ms Eweida, a Coptic Christian born in Egypt in 1951, was sent home without pay in 2006 after a uniform modification revealed the small cross she had previously worn under her clothes. Directed to conceal it, she refused, arguing that BA allowed members of other faiths to wear religious symbols and clothing. BA eventually changed its uniform policy to allow staff to wear discreet religious symbols, but Mrs Eweida’s domestic attempts to recoup losses during the period of her unpaid leave were unsuccessful, as neither employment tribunals nor courts accepted that she had been discriminated against.
Ruling that Ms Eweida’s rights had indeed been unjustifiably infringed, the Court found 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.”
Former nurse Shirley Chaplin was less successful in a superficially similar case. In 2009, the then 55-year-old was asked by the Royal Devon and Exeter Foundation NHS Trust not to display the crucifix she had worn around her neck for than 30 years. The trust argued that – following a uniform modification – it posed a health and safety risk. Ms Chaplin rejected the trust’s suggestion that she wear her cross as a lapel pin, was moved to a desk job, and unsuccessfully took the trust to an employment tribunal in 2010.
Recognising Ms Chaplin’s general right to wear a crucifix as a symbol of her faith, the Court nonetheless concluded that health and safety concerns were paramount; recognising that it was not equipped to make decisions of clinical safety, it conceded that the trust’s judgment should be respected.
These two cases establish two important principles: the article nine right to manifest religious beliefs is not limited to practices that that might be deemed central or mandatory in a faith tradition. And employees have a general – but not absolute – right to manifest their religious convictions by wearing a symbol of their choice.
A third applicant argued not merely that her religious freedom had been infringed, but that her employers’ refusal to treat her differently from staff with different religious views constituted discrimination under article 14 of the Convention.
Lillian Ladele began working for London’s Islington Council in 1992, becoming a marriage registrar in 2002, when civil partnerships for same-sex couples did not exist in UK law. Before the Civil Partnerships Act 2004 was passed, Ms Ladele asked not to be designated a registrar of civil partnerships, believing that she could not reconcile such work with her religious beliefs. The Council refused, and changed her terms of employment, designating her and her fellow registrars as civil partnership registrars. Ms Ladele rearranged duties to avoid registering partnerships for a year or so, but was eventually disciplined after two gay colleagues said they felt victimised by her stance. Ladele responded by claiming she had suffered religious discrimination and harassment; her claims, initially upheld by an employment tribunal, were eventually overturned by the Employment Appeal Tribunal. The Court of Appeal and the Supreme Court upheld the EAT’s ruling.
In considering her case, the Court recognised that Ms Ladele’s views on civil partnerships were directly motivated by her religious faith, and thus were entitled to protection under the Convention. It also recognised that Ms Ladele did not waive her right to religious freedom when she accepted her employment contract, and that the change to her terms of employment had a “particularly detrimental impact on her because of her religious beliefs”.
However, the Court also recognised that Ms Ladele’s employer aimed to secure the rights of others, and concluded that neither Ms Ladele’s employer nor the UK domestic courts had exceeded the ‘margin of appreciation’ available to them to balance these rights, their decisions being, if not quite justified, at least justifiable. In effect it decided that the act of balancing between two sets of rights was best left – in this case – to the member countries.
The fourth applicant, Gary McFarlane, joined a relationship support charity in 2003, and in 2006 began a diploma in psycho-sexual therapy, fully aware that he would be expected to advise both straight and gay couples. Concerns were raised about conflicts between his religious beliefs and his duty to provide psycho-sexual therapy for same-sex couples, and he was suspended from work before being dismissed for gross misconduct. Citing discrimination, Mr McFarlane unsuccessfully appealed against this to an employment tribunal, the Employment Appeal Tribunal, and the Court of Appeal.
The Court accepted that Mr McFarlane’s refusal to advise homosexual couples was a legitimate manifestation of his religious beliefs, but determined that the most important factor in the case was Relate’s intention to provide a service without discrimination; given this, the domestic courts had a ‘wide margin of appreciation in deciding where to strike the balance between Mr McFarlane’s right to manifest his religious belief and the employer’s interest in securing the rights of others’. As with Ms Ladele, the Court found that the domestic courts had not exceeded this margin.
On the face of it, for only one case out of four to have succeeded is disappointing, and the decision in the case of Ms Ladele is particularly galling. The partly dissenting opinion of Judges Vucinic and De Gaetano noted that her case was less a case of freedom of religion than of freedom of conscience, and that the majority judgment did not give due attention to the member states having a real obligation to respect that.
“Instead of practising the tolerance and the ‘dignity for all’ it preached, the Borough of Islington pursued the doctrinaire line, the road of obsessive political correctness. It effectively sought to force the applicant to act against her conscience or face the extreme penalty of dismissal.”
It would seem that Ms Ladele, at any rate, has strong grounds for challenging this decision in the Grand Chamber of the European Court of Human Rights.
More positively, it should be stressed that Ms Eweida’s victory is the first defeat for the UK in a case brought in connection with freedom of religion. Even the other judgments may turn out to be important through their implicit rejection of arguments made by the British government which would have had the effect of restricting freedom of religion to a narrowly-defined freedom of worship.
Clearing the Ground, a British Parliamentary enquiry into the freedom of Christians, found in early 2012 that, while Christians are certainly not persecuted in British public life, the public space for Christians has been narrowed, largely due to religious illiteracy, which “has led to legal restrictions on how faith can be expressed”.
The manner in which British courts handled the Eweida, Chaplin, and Ladele cases were examples of this, with judges decreeing that the wearing of a cross was not a generally accepted – let alone scripturally mandated – manifestation of the Christian faith, and that a belief in the sanctity of marriage was not a ‘core belief’ of Christianity, and thus not entitled to protection under the ECHR.
The Court rightly rejected this approach, expressly noting that “there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question”. Instead, it recognised that many beliefs and actions can be genuine manifestations of Christian belief, regardless of whether or not they are explicitly required by the Bible.
Previously the Court held that there was no breach of an employee’s religious freedom if employees could resign and seek employment elsewhere; James Eadie QC, counsel for the UK, had consequently argued that the applicants had been free to do this or to practise their religion outside work.
Now, however, and especially in light of how Ms Ladele’s working conditions had changed, the Court has ruled that it would be better for employers to consider whether restrictions on employees’ religious freedoms are proportionate and justifiable.
That only one case out of four proved successful is disappointing, but yesterday’s judgments nonetheless may help drive home the message that true religious freedom entails the freedom to live religious lives, and is not mere freedom of worship.