On Tuesday 15 January the European Court of Human Rights will give judgement on the applications of four Christian employees who contend that UK law fails to adequately protect their Convention rights. The facts of the case are available in greater detail elsewhere, and have already generated widespread commentary, (see for example here, here, and here). The National Secular Society and the Equality and Human Rights Commission are amongst those who have filed intervening submissions under Rule 44 §3 of the Rules of the Court. Even the Prime Minister has speculated upon the consequences of these challenges.
The applicants argue that the work-based detriment suffered because of their requests to manifest their religious beliefs at work breached Articles 9 and 14 of the Convention. From a factual perspective there are two distinct categories of cases at issue: those dealing with the wearing of religious symbols at work (involving Ms Eweida and Ms Chaplin), and those dealing with the refusal of employees to carry out certain duties required by their employer that they felt would condone homosexuality (involving Ms Ladele and Mr McFarlane).
The claimants have adopted two distinct lines of argument:
Counsel for Ms Eweida, Ms Chaplin, and Mr McFarlane have challenged the UK courts’ interpretation of the limits of Article 9. In particular they contend that the definition of ‘religious manifestation’ adopted in the Court of Appeal’s Eweida judgement erroneously requires that a religiously motivated act be doctrinally required by the faith in question before the act can be considered a religious manifestation. They contend that this interpretation is unduly restrictive and out of sync with more permissive Strasbourg judgements such as Jakobski v Poland and Bayatyan v Armenia.
The Article 9 route is a difficult one. Even if the applicants convince the ECtHR that wearing Christian symbols and refusing to indirectly condone homosexuality should be considered religious manifestations within the terms of Article 9, a significant hurdle still awaits them in the form of the ‘free contract doctrine’. Those seeking to enforce Article 9 rights in the workplace consistently come up against the doctrine’s core contention: freedom of religion is guaranteed by the right to resign. In challenging the doctrine the applicants are hoping for a sea change in the Court’s interpretation of Article 9.
In contrast, counsel for Ms Ladele present their claim solely in terms of religious discrimination, citing Article 14 and stressing that their argument is not reliant on a violation of Article 9 being established. Where an interference with Article 14 has been found, the margin of appreciation determines the scrutiny of the justifications offered by the Government party. The absence of consensus on workplace religious manifestations would appear to favour the Government. However, a markedly different approach to justification of differential treatment exists where the discrimination involves certain suspect grounds. The recent comments of Judges Bratza, Hirvelä, and Nicolaou in Redfearn imply that religious discrimination is now considered to be a suspect ground requiring strong and weighty justification. The Court’s case law on gender, racial and sexual orientation discrimination illustrates the immense potential of Article 14 where a ground is judged to attract such strict scrutiny.
Julie Maher is a DPhil candidate at Balliol College, University of Oxford.