The European Court of Human Rights has issued its decision in the highly anticipated case of Eweida and Others v United Kingdom. This ruling (actually four separate cases decided jointly) was billed as the most significant case on freedom of conscience and religion in many years. It raised important issues in relation to the right to religious expression in the workplace and the reconciliation of freedom of conscience and religion with other rights, most notably freedom from discrimination.
The Court was faced with four applicants Christian applicants all of whom felt that workplace regulations prevented them from expressing or acting in accordance with their faith.
The first, Nadia Eweida, was prevented from wearing a cross over her uniform by her employer British Airways (it subsequently changed its policy to permit employees to wear crosses). The second, Shirley Chaplin, was a nurse dealing with dementia patients prevented by her employer from wearing a cross on a chain on grounds that it represented a risk of infection and an injury risk should patients grab it (her employer offered to allow her to affix a cross to her nurse’s badge but she rejected this offer as badges must be removed during certain tasks).
The third, Gary MacFarlane, was sacked as a sex therapist by RELATE, a counseling charity, as he failed to abide by a non-discrimination policy requiring him to give counseling to couples irrespective of sexual orientation. The fourth, Lillian Ladele was a civil registrar disciplined by Islington Council on the basis that her unwillingness to register civil partnerships breached its non-discrimination policy.
The judgement is certainly significant and represents a potentially important development in the approach of the Court to Article 9. The lion’s share of publicity has gone the ruling in relation to Ms. Eweida the only one of the four to win her case. However, her win was based on rather narrow factual questions and may be significantly less important than the rejection of the claims of MacFarlane and, particularly, Ladele. The importance of the ruling rests on three main points.
Anti-Discrimination Laws and Freedom of Conscience
The core of both the claims of both MacFarlane and Ladele was that, provided that no individual was actually deprived of a service, it was disproportionate and discriminatory for employers to require employees to provide services on a non-discriminatory basis when doing so obliged such employees to go against their religious beliefs in relation to the sinfulness of homosexual conduct.
The Court did not agree. It found that in both Mr. MacFarlane’s and Ms. Ladele’s cases the employer’s policy “aimed to secure the rights of others which are also protected under the Convention”. It held that the UK was entitled to a wide margin of appreciation in reconciling clashing rights and their claims of a breach of the Convention was not made out.
This is surely correct. Discriminatory acts have a moral significance beyond the deprivation of the relevant service. No-one would say that Rosa Parks suffered no harm if there had been a second bus company in Montgomery Alabama that she could have used and which had no discriminatory seating arrangements. Neither would a registrar who regarded inter-racial marriage as sinful have received much support for a claim to be permitted not to register such unions. We rightly perceive that the dignity of individuals can be compromised by acts of discrimination even if they are not denied a particular service. It would have made a mockery of the idea of the margin of appreciation for the Court to have decreed that, in drawing up anti-discrimination norms, States are prevented from having regard this serious harm.
Moreover, one cannot selectively grant religious individuals exemptions from anti-discrimination norms while denying them to those whose conscience claims arise from non-religious sources. By invoking the margin of appreciation the Court avoided opening a pandora’s box and rightly left it to national legislators to resolve these delicate matters.
Resignation as a Guarantee of Religious Freedom
The judgement does signal a significant change is in relation to the right to adhere to one’s religious beliefs at work. In previous cases, the Strasbourg institutions indicated that where a clash between one’s religious duties and one’s the workplace duties arose, religious freedom was sufficiently protected by the right to resign and that work-related restrictions on religious practices (e.g, being required to work on the Sabbath), did not amount to an interference with religious freedom.
Perhaps influenced by high levels of unemployment in the current crisis, the Court appears to have changed its approach. It now feels that “the better approach would be to weigh [the possibility of changing job] in the overall balance when considering whether the restriction [of freedom of religion] was proportionate.” This brings the Court’s approach to freedom of religion in the workplace into line with its approach to the protection of rights such as privacy and free expression.
Although this new approach is more protective of the religious freedom of workers, it may not bring about enormous changes. EU law already requires Member States to justify any workplace arrangements that place those with a particular faith at a disadvantage including those that are generally applicable and apparently neutral. Moreover, the Court has shown a willingness to defer to the assessment of employers in relation to what the workplace actually requires. As noted above, it found that employers are entitled to require religious employees to abide by non-discrimination policies and in case of Shirley Chaplin, it deferred to the assessment of her employers in relation to the infection and safety risks posed by her necklace noting “hospital managers were better placed to make decisions about clinical safety than a court, particularly an international court which has heard no direct evidence”. Therefore, while the Court’s approach has changed, the overall impact may be limited.
Significance of Ms. Eweida’s Win
Media coverage has focused on the finding in favour of Ms. Eweida whose litigation in the UK courts generated significant attention. The Court found that her employer’s uniform policy pursued a legitimate aim, the desire to project a certain corporate image. However, in the light of various factors such as the fact that employees were allowed to wear symbols of other religions such as turbans and hijabs, the fact that the cross was discreet and the lack of evidence of impact on her employer’s reputation, the national courts had given “too much weight” to the employer’s interests. The Court also used the fact that British Airways had amended its policy to permit crosses to confirm that the restriction was disproportionate as this meant that “the earlier prohibition was not of crucial importance”.
Ms. Eweida’s victory does underscore the fact that the Court no longer sees the right to resign as sufficient protection for religious freedom. Its fact-specific nature means that it is difficult to draw wider conclusions. It is unclear, for instance, whether a more general ban on all religious symbols would have made it easier for the employer to justify their restriction. Joshua Rozenberg wrote that the judgement seems “convenient” for the Court. It does seem politically astute to find in favour of the applicant whose case has the fewest general implications and to invoke the margin of appreciation in relation to the other three.
That said, there are some worrying features of the facts in this ruling. Ms. Eweida initially accepted a duty to conceal her cross. When she changed her mind and launched a grievance procedure against her employer she did not wait for her complaint to be investigated but rather turned up for work in violation of its uniform policy. As the dissent of Judge Bratza (the British judge) noted, BA was rather accommodating towards her and offered her a role without direct customer contact and with no uniform requirement for the duration of the investigation of her complaint. Ms. Eweida refused this solution. Once BA had investigated her complaint, it changed the rules to allow her to wear her cross. It seems remarkable that such a sequence of events can be seen to have resulted in a violation The Court acknowledged in all four cases that employers are dealing with a delicate balancing of rights. In such circumstances do employers not have the right to some time to look into requests for modification of uniforms? Is it reasonable of the Court to use the fact that BA changed its uniform policy once it had considered the issue to find a violation from the fact that it did not change the policy before considering whether accommodation was compatible with its other goals?
Dissents in Ladele
It would be remiss not to note the extremely intemperate and disturbingly worded dissent of Judges Vucinic and De Gaetano who argued that the Court should have found in favour of Ms. Ladele. Interestingly, they distinguish freedom of conscience from the freedom to follow religious practices (such as diet clothing etc.) and argue that free conscience is not subject to limitations that Article 9(2) allows in relation to manifestation of religious belief. Without explicitly saying so, they also base their approach on the idea that discrimination can do harm beyond deprivation of service. It would have been useful for them to make this clearer but this is not the most notable failing in their dissent. More seriously, their judgement uses language that is notable for its intemperate nature and hostility to the very idea of gay equality. They describe the events leading to Ms. Ladele’s dismissal not as a difficult issue of clashing fundamental rights but as “a combination of back-stabbing by her colleagues and the blinkered political correctness of the Borough of Islington (which clearly favoured “gay rights” over fundamental human rights)”. This is quite a shocking sentence from judges charged with interpreting Europe’s human rights charter. Gay rights are sufficiently alien to these judges that they feel the need to place the term in inverted commas. More importantly, gay rights are directly contrasted with what the judges call “fundamental human rights”. It is disturbing that the Strasbourg Court whose rulings have such a proud record in relation to ending the criminalization of homosexuality should contain judges who seem so hostile to the idea that the rights of gay people could be considered fundamental human rights.
These decisions herald significant change in the Court’s Article 9 jurisprudence. The idea that the right to resign sufficiently protects religious freedom in the workplace has been abandoned and in the future Strasbourg will require employers to show that policies that impinge on religious freedom are justified. The practical effect of this is likely to be limited as EU law already provided such a duty. The Court has affirmed that States have wide discretion in reconciling rights to freedom of conscience and religion on one hand and freedom from discrimination on the other. In doing so it has confirmed that States are entitled to take account of the moral significance of discrimination beyond deprivation of a good or service. Such an outcome was always likely. The reaction to the Chamber decision in Lautsi v Italy showed just how dangerous it can be for a European Court to weigh in on controversial matters of faith and identity. Rapid change in social mores means that what was recently the majority view on matters of gender and sexual orientation are now minority positions. Such rapid change was always likely to produce political controversy. It would have been most unwise for an international court such as Strasbourg to seek to impose a European level solution to such problems.
Ronan McCrea is a Lecturer in Law at University College London. He acted as co-counsel for the National Secular Society in this case.
Suggested citation: R. McCrea, ‘Strasbourg Judgement in Eweida and Others v United Kingdom’ UK Const. L. Blog (16th January 2013) (available at http://ukconstitutionallaw.org)