The European Court of Human Rights has published its long awaited decision in relation to the joined cases of Eweida and Others v. the United Kingdom which related to four employees who were practising Christians. The Court held that three of the four employees, who had brought discrimination claims against their respective employers, had failed to prove that UK law had not adequately protected their right to manifest their religion. However, it held in favour of one of the individuals, a former employee of British Airways Plc, and awarded her EUR2,000 in respect of her anxiety, frustration and distress, together with expenses of EUR30,000.
Ms Eweida was employed by BA as check-in staff, whilst Ms Chaplin worked as a nurse for the Royal Devon and Exeter NHS Foundation Trust. Both individuals had grown used to wearing chains bearing crosses to their places of work, albeit hidden under their uniforms. When new open-necked uniforms were introduced at both workplaces, both employees eventually came into conflict with their employers by insisting on wearing their crosses visibly. Ms Eweida was sent home without pay until such time as she chose to comply with BA’s dress code policy. She was offered a different paid administrative role which would have allowed her to wear her cross visibly, but refused to take it. After extensive media coverage of the case, BA amended its policy a few months later so as to allow staff to wear religious and charity symbols where authorised to do so by management. BA refused however to compensate Ms Eweida for the four months’ lost earnings when she remained away from work. Ms Chaplin for her part rejected the alternative ways of wearing her cross as suggested by the NHS, and was moved to a non-nursing temporary position which ceased to exist a few months later.
Ms Ladele was employed by the London Borough of Islington as a registrar, whilst Mr McFarlane was a sex therapist and relationship counsellor at Relate Avon Limited. Importantly for the purposes of their roles, they respectively held the views that same-sex civil partnerships are contrary to God’s law, and homosexual activity should not be endorsed. Both Relate and the Borough operated equality and diversity policies, which forbade inter alia discrimination on the ground of sexual orientation. Complaints were subsequently raised by Ms Ladele’s colleagues that her refusal to carry out civil partnership ceremonies was discriminatory. Disciplinary proceedings were brought against Ms Ladele, and she subsequently refused to sign a new job description which required her to carry out work relating to civil partnerships whilst allowing her to abstain from conducting the ceremonies themselves. Mr McFarlane for his part was unable to provide Relate with an unequivocal undertaking that he would be willing to provide sex and relationship therapy to same-sex couples, and he was subsequently dismissed.
Eweida, Chaplin, Ladele and McFarlane brought claims against their employers in the UK courts on the basis that they had suffered discrimination at work on the grounds of their religion. When such claims were unsuccessful, they lodged their cases at the European Court of Human Rights arguing that their rights under Articles 9 and 14 of the European Convention on Human Rights (namely the right to manifest their religion, and their right not to be discriminated against on the ground of their religion) had been violated.
The Court held that Ms Eweida’s insistence on wearing a visible cross was a manifestation of her religious belief, in the form of worship, practice and observance and as such attracted the protection of Article 9. The refusal by BA to let her wear her cross amounted to an interference with her right to manifest her belief. Whilst BA had a legitimate aim in enforcing its uniform code, namely to project a certain corporate image, a fair balance with Ms Eweida’s rights had not been struck. The UK courts had accorded BA’s aim too much weight, given the discreet nature of the cross, the lack of evidence showing the detrimental effect of (for example) hijabs and turbans on BA’s image, and the company’s subsequent decision to amend its own policy. Ms Eweida’s rights under Article 9 had therefore been violated by the UK courts when they rejected her claim.
Ms Chaplin’s case against the NHS could be differentiated by the Court on health and safety grounds, namely the ability of patients to grab the chain bearing the cross, and the possibility of both objects coming into contact with open wounds. These considerations were of greater magnitude than the corporate image aim put forward by BA. Accordingly there was no violation of Ms Chaplin’s rights under the Convention arising from the NHS policy forbidding nurses from wearing necklaces at work.
In relation to Ms Ladele and Mr McFarlane, the Court held that the aims of the Borough and Relate (of promoting equal opportunities and providing a service without discrimination) were legitimate. It held that differences in treatment based on sexual orientation require particularly serious reasons by way of justification, and national courts have a wide margin of appreciation in the recognition and protection of same-sex couples. The European Court did not consider that the margin of appreciation was exceeded in either employee’s case, and that accordingly their rights under Articles 9 and 14 of the Convention had not been violated.
Summary
The examination of religious rights in the workplace is always going to be highly dependent on the surrounding circumstances, as this decision shows. The case indicates the European Court’s desire to protect an employee’s holding of religious beliefs, provided that they do not conflict with the rights of other sections of the community. Nevertheless, this partial victory on the part of Ms Eweida will mean that employers should pay particular regard to uniform policies which may restrict an employee’s right to manifest their religion in the workplace.
