The European Court of Human Rights recently made their decision in the cases of Eweida and Chaplin v the United Kingdom (2011) ECHR 738 and Ladelle and McFarlane v The United Kingdom (2011) ECHR 737.
Ms Eweida who worked for British Airways and Ms Chaplin, a geriatric nurse, sought to wear visible crosses in breach of their employers’ respective uniform policies. The others, Ms Ladelle and Mr McFarlane, were a registrar and counsellor, who were required to perform civil partnership ceremonies and sexual counselling for same sex couples respectively.
The European court of Human Rights upheld Ms Eweida’s case and held that the UK failed to protect a Christian Employee’s right, under Article 9 of the European Convention on Human Rights, to manifest her religious belief.
However, the three other applicants, Ms Ladele, a local authority registrar, Ms Chaplin, a nurse and Mr McFarlane, a marriage counsellor, who also claimed they had suffered religious discrimination, lost their appeals.
In upholding Ms Eweida’s complaint, the ECHR departed from its previous case law, which suggested that employers’ requirements do not interfere with religious freedom for Article 9 purposes, since employees are always entitled to resign and seek work elsewhere. This shift is likely to have a significant effect on future indirect discrimination cases in the UK on religious or philosophical belief.
In Ms Eweida’s case, the court upheld that a fair balance was not struck. While BA’s wish to project a certain corporate image was legitimate, the court of Appeal accorded it too much weight.
Ms Eweida’s cross was discrete, would not have detracted from her professional appearance, and would not really have encroached on the interests of others. Further, there was no evidence that employees’ wearing of unauthorised items of religious clothing, such as turbans and hi jabs had a negative impact on BA’s brand or image. In failing to provide Ms Eweida with a remedy in these circumstances the UK failed to protect her right to manifest her religion, in breach of its positive obligation under Article 9.
Ms Chaplin’s employers prevented her from wearing a cross on hospital wards because of health and safety. The ECHR considered this a stronger justification for not wearing a cross and they found that there was no breach of her Convention Rights as a result.
In respect of Ms Ladele and Mr McFarlane, the court previously held that difference in treatment based on sexual orientation require particularly serious reasons by way of justification. The court commentated that states who are parties to the European Convention are given a lot of discretion when it comes to striking a balance between the competing rights of different groups and there was no basis for interfering with the way the UK had struck that balance in these cases. They both lost their cases for that reason.
The Eweida judgement does not establish the absolute right to wear a visible cross in the workplace. However, the ruling clearly helps define where the limits on religious freedom lie. As per the legislation, any action taken by employers must be proportionate in accordance with a legitimate aim. As can be seen in all four cases, any right to manifest a religious belief in the course of employment is dependent on a range of facts including the type of work and workplace in question.
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