Yesterday’s decision of the European Court of Human Rights in Eweida and Others v the UK has been described as something of a ‘mixed bag’. By a margin of 5 votes to 2 the Chamber ruled that Article 9 of the European Convention had been infringed where a private company refused to allow a Christian employee to wear her cross visibly at work, but rejected the claims of the remaining applicants. The Chamber unanimously found that there had been no violation of Article 9, taken alone or in conjunction with Article 14 (prohibition of discrimination), as concerned Ms Chaplin and Mr McFarlane; and by five votes to two, that there had been no violation of Article 14 taken in conjunction with Article 9 as concerned Ms Ladele.
The Chamber found that, in relation to Ms Nadia Eweida’s case, English courts had failed to strike a fair balance when weighing the applicant’s desire to manifest and communicate her religious belief against British Airways’ wish to project a certain corporate image. The Court found that the strength of her employer’s justification was undermined by evidence that they previously authorised employees to wear items of religious clothing and by their subsequent alteration of the contested uniform policy to allow religious symbolic jewellery . As there was no evidence of any real encroachment on the interests of others, the domestic authorities accordingly failed to sufficiently protect Ms Eweida’s right to manifest her religion, in breach of their positive obligations to secure the rights under Article 9 for those in their jurisdiction. The Court distinguished Ms Eweida’s case from the other religious symbol claim before them. They found that in relation to Ms Chaplin, a nurse who wished to wear a crucifix at work, the countervailing consideration – protection of health and safety at work – was ‘inherently of a greater magnitude’ .
The Chamber found that the English courts’ handling of the claims of Ms Ladele and Mr McFarlane to be fairly balanced. The Chamber contended that ‘the most important factor to be taken into account’ was the important and legitimate aim of the applicants’ employers in pursuing policies of non-discrimination against service users . In analysing the proportionality of the means used in Ms Ladele’s case the Court balanced the serious detriment that followed from her refusal of tasks which she had not voluntarily contracted to against the worthy aim of the policy at issue and the state’s margin of appreciation. The special status of sexual orientation as requiring particularly serious justification was emphasised . Some will undoubtedly criticise the Chamber’s judgement as reinforcing a hierarchy of discrimination grounds, whereby sexual orientation discrimination outweighs religious discrimination. However, the special status of certain grounds of discrimination is an established aspect of Convention law. This decision merely extinguishes the possibility, raised by the dissent of Judge Bratza and others in Redfearn, that religious discrimination could be added to this list of suspect grounds.
Indeed, yesterday’s partially dissenting opinion from Judges Bratza and Björgvinsson actually upheld the majority’s findings in relation to Ladele, McFarlane and Chaplin, only contesting the majority’s conclusion with regard to Ms Eweida. They highlighted the conciliatory nature of BA’s actions in contrast with those of Ms Eweida and argued that the Court of Appeal had fairly balanced the competing interests at stake, claiming that BA was right to suspend amendment of their uniform policy until the issue was thoroughly examined.
The decision has been welcomed by groups such as the National Secular Society, Liberty and the Irish Council for Civil Liberties, but what can we take from the judgement in terms of clarifying the contentious area of Article 9 jurisprudence?
A crucial element of the judgement lies in its recognition that factors such as the voluntary acceptance of responsibilities in conflict with religious beliefs are relevant to the question of justification, rather than that of prima facie interference with the right. This reinforces the approach taken by the Grand Chamber in Sahin, and explicitly breaks with earlier Commission cases such as Konttinen v Finland and Stedman .
In the context of the Court’s previous consistent jurisprudence on the ‘freedom to resign’ as the sole protection of Article 9 in the workplace, this confirmation of the appropriateness of a two-step interference and justification analysis in such Article 9 cases, alongside the tangible finding of an interference in Ms Eweida’s case, is a significant development.
Another important point was the Court’s rejection of the Government’s contention that no interference occurred because the practices in question were neither mandatory requirements of the religion, nor acts of worship that formed part of the practice of religion or belief in a generally recognised form. The Chamber stated that the latter quality is an example of the type of acts which may be considered manifestations of religion, but ‘the manifestation of religion is not limited to such acts’ .
The Chamber’s analysis of the specific facts of these cases and its scrutiny of the employers’ various reasons for refusing to accommodate their employees’ religious manifestations is itself highly positive. It is certainly a marked contrast with earlier cases such as Konttinen, which give little attention to the ease with which employees might have been accommodated. In addition the ‘general and neutral’ nature of the uniform provisions restricting Ms Eweida’s religious manifestation was no answer to the fact of interference.
In essence, the Chamber has recognised that there is a weight to be attached to the rights of religious persons engaged in the secular public sphere, and that a balance must be struck.
Julie Maher is a DPhil candidate at Balliol College, University of Oxford.
I hope Ms L manages to get it to the Full Court and wins.