Religious rights at work must be balanced against rights of others, says European Court of Human Rights

By staff writers
15 Jan 2013

A British Airways employee suffered unlawful discrimination at work over her treatment in relation to the manifestation of her religious beliefs, the European Court of Human Rights has ruled.

Ms Nadia Eweida took her case to the European Court of Human Rights after British Airways (BA) disciplined her for wearing a white gold cross visibly in violation of its corporate uniform policy, and after she exhausted all reasonable legal remedies in the UK.

The company subsequently changed its policy under pressure from the Church of England, a shareholder in the company, and others. It is this change that partly led the European Court to conclude that the original policy, though legitimate, was not essential, and should not have been held by the domestic courts to outweigh an issue of the right to manifest religious belief – unlike the health and safety concern involved in another case, that of Shirley Chaplin, which was refused.

Importantly, the Court refused the three key cases where the rights of others, whether believers or non-believers, would have been unlawfully impeded by privileging complainants' religiously-based personal convictions.

In the Eweida case, it was adjudged that no-one else would have been unduly effected by her wearing a small lapel cross.

In the Chamber judgment in the case of Eweida and Others v. the United Kingdom (application nos. 48420/10, 59842/10, 51671/10 and 36516/10), the European Court of Human Rights held 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.

It also concluded, 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.

All four applicants were 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.

The Court did not consider that the lack of explicit protection in UK law to regulate the wearing of religious clothing and symbols in the workplace in itself meant that the right to manifest religion was breached, since the issues could be and were considered by the domestic courts in the context of discrimination claims brought by the applicants.

In Ms Eweida’s case, the Court held that on one side of the scales was Ms Eweida’s desire to manifest her religious belief. On the other side of the scales was the employer’s wish to project a certain corporate image. While this aim was undoubtedly legitimate, the domestic courts accorded it too much weight. As regards Ms Chaplin, the importance for her to be allowed to bear witness to her Christian faith by wearing her cross visibly at work weighed heavily in the balance.

However, the reason for asking her to remove the cross, namely the protection of health and safety on a hospital ward, was inherently more important than that which applied in respect of Ms Eweida and the hospital managers were well placed to make decisions about clinical safety.

In the cases of Ms Ladele and Mr McFarlane, it could not be said, the ECtHR noted, that national courts in the UK had failed to strike a fair balance when they upheld the employers’ decisions to bring disciplinary proceedings. In each case the employer was pursuing a policy of non- discrimination against service-users, and the right not to be discriminated against on grounds of sexual orientation was also protected under the Convention.

"Although Nadia Eweida's victory shows that Christians can see wearing a cross at work as part of behaving in accordance with their religion, the court's decision was based on special circumstances, including the fact that a discreet cross would not have adversely affected British Airways' public image," wrote BBC Religious affairs correspondent Robert Piggott earlier today.

He added: "It's perhaps more significant that Shirley Chaplin's case was dismissed, along with those of Gary McFarlane and Lillian Ladele."

Shami Chakrabarti, director of civil rights group Liberty, said the Eweida judgment was "an excellent result for equal treatment, religious freedom and common sense".

"However the court was also right to uphold judgments in other cases that employers can expect staff not to discriminate in the discharge of duties at work," she added.

The applicants, Nadia Eweida, Shirley Chaplin, Lilian Ladele and Gary McFarlane, are British nationals who were born respectively in 1951, 1955, 1960 and 1961. They live in Twickenham, Exeter, London and Bristol, respectively.

* The statement from the Court may be read here (*.PDF Adobe Acrobat document):

* For an initial Ekklesia analysis of the Eweida case, see: ‘European Court: the Eweida ‘BA cross’ case judgement’, by Simon Barrow: http://www.ekklesia.co.uk/node/17801

* Commentary from Ekklesia associate 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

* ‘Christian cases going to the European Court of Human Rights’, by Jonathan Bartley: http://www.ekklesia.co.uk/node/17018

* Procedural note: Under Articles 43 and 44 of the Convention, the Eweida Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution

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