Nicola Brown explores the impact of the four-part decision from Europe on religious discrimination
Earlier this year the European Court of Human Rights ruled on four claims against the UK Government brought under Article 9 of the Convention. Ms Eweida and Ms Chaplin argued in slightly different ways that our domestic legislation gave them insufficient protection against their employers when they sought to ban wearing religious symbols at work. Ms Eweida worked for British Airways and Ms Chaplin in the NHS.
In the claims brought by Ms Ladele and Mr MacFarlane, it was argued that they had been wrongly forced to choose between their job and delivering a service which conflicted with their religious beliefs concerning homosexuality. Like the first pairing, both the public and private sector were represented, with Ms Ladele working as a registrar for Islington Council and Mr MacFarlane as a counsellor for Relate.
Of the four litigants, Ms Eweida was the only one who won her case. She was victorious because she persuaded the majority of the court (5 out of 7 judges) that our domestic courts had given too much weight to the interests of her employer in promoting their corporate image, and too little to her right to manifest her religion. In contrast, it thought that Ms Chaplin’s case had been assessed correctly, since an employer like the NHS should be given considerably more latitude when imposing a dress code for health and safety reasons.
The cases of Ms Ladele and Mr McFarlane were arguably more controversial, because they involved a clash between an employee’s religious beliefs about homosexuality and an employer’s obligation to deliver a discrimination-free service. In those cases the European Court of Human Rights refused to second-guess the way our domestic courts had balanced these competing rights, though in the case of Ms Ladele this decision was not unanimous. That means the decisions of our own courts dismissing both their claims stand.
The route the court took to these decisions is arguably of greater longterm significance than the end result in each particular case. In particular, it made two points which may shift the balance slightly in favour of the claimant in future employment cases involving religious discrimination.
First, it rowed back from some of its previous decisions which have been taken as suggesting that Article 9 was barely engaged in an employment context, since workers are not compelled to do a job which conflicts their religious beliefs.
Secondly, for the manifestation of religious belief to be protected, it held that it was unnecessary for it to be “mandated” by the faith in question, as long as it was sufficiently closely connected. That represents a challenge to the way indirect discrimination has been interpreted in the UK, which in the Eweida case was held to require “group disadvantage”, even in the context of a religious discrimination claim. That was one of the reasons why our domestic courts dismissed her claim, as she could not produce evidence to show that other Christians shared her conviction that wearing a cross openly at work was a requirement of their faith.
Finally, some of the claimants involved are reportedly planning an appeal to the Grand Chamber or the European Court of Human Rights. So we may not have heard the last word on this particular group of claims