Human Rights: the Eweida ‘BA cross’ case judgement

This morning (15 December 2013) the European Court of Human Rights (ECtHR) handed down judgements in four cases where allegations have been made of unlawful discrimination against Christians.

It dismissed three of them, but upheld a complaint by Nadia Eweida, who sought the right to wear a cross visibly on her British Airways uniform, against a jewellery policy that the company subsequently modified.

The cases of Ms Eweida and Ms Shirley Chaplin (who lost her case over the wearing of a cross on a chain in circumstances adjudged to have raised hospital safety concerns), dealt with the same issue, which is wearing a religious symbol at work.

The Court accepted that the wearing of a cross can be a manifestation of a Christian religious belief and done to express and communicate that as part of the identity of the wearer. Therefore it is a practice that needs to be accorded respect under Article 9 of the European Convention on Human Rights (ECHR).

It follows that any restrictions on that practice need to be for a legitimate reason and that they need to demonstrate a proportionate way of attaining that reason.

What the European Court of Human Rights (ECtHR) has said is that, bearing in mind the legitimate goals being pursued by the two different employers, the UK domestic courts struck the balance correctly in the case of Chaplin, but not in the case of Eweida. The British judge on the ECHtR dissented from the latter conclusion.

In the case of Eweida, the aim of the employer’s uniform policy was the promotion of a coherent brand image for an airline. In Chaplin it was the promotion of health and safety in a hospital.

The Court accepted both of these as legitimate aims to be pursued by an employer, but considered that health and safety of hospital patients was a goal that weighed far more heavily in the balancing act than brand image.

This was borne out, the Court said, by the fact that British Airways (Eweida) subsequently changed their uniform policy to allow the visible wearing of religious symbolic jewellery. This showed that the earlier prohibition had not been of crucial importance.

The significance of this is, first, that the Court accept what has always been the case, which is that there is a balance to be struck between the right to manifest one’s religion and the rights and needs of others in a democratic society.

(The right to religion, unlike say, the right not to be tortured, is not absolute. It can be limited where there are other legitimate rights at stake – that is, under Article 9, “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 for the protection of the rights and freedoms of others.”)

Second, one can only support the fact that health and safety is a more important concern than corporate brand image.

The fact that BA changed its uniform policy after the fact (ironically to accede to complaints about the policy), and that they then failed to compensate Ms Eweida retrospectively, appears to have gone against them by calling into question the essentialness of their original policy, the accommodations made to different parties, and the way they addressed the detriment caused to the complainant.

There is no indication from the European Court of Human Rights that there is an issue here of specific or intentional unlawful discrimination against Christians in any wider sense.

One of the problems involved in assessing what the ECtHR has said today is the gap between language used in a legal and in a popular context. The BBC's "BA discriminated against Christian" website headline, which can be misleadingly read as suggesting that the company deliberately discriminated against her because she was a Christian, has now given way on one of its full page to the more precise "British Airways Christian employee Nadia Eweida wins [discrimination] case".

Only one of the four cases (Chaplin, rejected) raised the direct issue of discrimination being based on a possible reaction against Christianity. The Court said that they could not consider this element of the case, because not all reasonable remedies had been sought in the UK.

This outcome of the ECtHR process substantially bears out analysis from Ekklesia on these cases over the past six years, including commentary from Savitri Hensman on the impending cases, from 18 July 2011: (http://www.ekklesia.co.uk/node/15119), ‘Plaudits and questions about airline turnaround on religious symbols’, Ekklesia, 22 January 2007 (http://www.ekklesia.co.uk/news/uk/070122bacross), including a statement from Simon Barrow, and ‘Christian cases going to the European Court of Human Rights’, by Jonathan Bartley (http://www.ekklesia.co.uk/node/17018)

The campaigning groups who have tried to use these four cases to suggest that Christians are systematically discriminated against in Britain have not had their allegations borne out by this ECtHR judgement, though they will doubtless continue to assert that they have or contest repeated legal decisions to the contrary.

* 'Religious rights at work must be balanced against rights of others, says Court': http://www.ekklesia.co.uk/node/17803

Further comment to follow regarding the full judgement.

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© Simon Barrow is co-director of Ekklesia.

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