Eweida – Did the European Court get it right ?

There has been a lot of publicity about the European Court of Human Rights decision in Eweida & Others v UK. The principles are quite simple; the key to understanding the decisions is the distinction between the right to hold religious faith and the right to display that faith.

Article 9 of the European Convention on Human Rights provides that there is an absolute right to freedom of thought, conscience and religion. However the right to manifest one’s religion or beliefs is qualified. This right is subject to ‘only such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health, or morals, or for the protection of the rights and freedoms of others’. States have a ‘margin of appreciation’ for the way in which qualified rights are interpreted and the ECHR will not interfere with a decision that falls within that margin.

Two of the Applicants had sought to wear visible crosses, in breach of their employers’ uniform policies. That was a qualified right. The Court accepts that a manifestation of religious belief for the purposes of Article 9 need not be “mandated” by the religion but only needed to be “intimately linked”.

Ms Eweida worked for British Airways and wanted to wear a discreet cross visibly, having worn one under her clothing for some time. The Court held that British Airways’ desire to project a consistent brand image wasn’t sufficient, as there was no evidence that the wearing turbans and hijabs by other employees had any negative impact. In fact British Airways had recognised that in 2007 and changed their policy to allow it.

Ms Chaplin worked as a geriatric nurse. In her case the Court held that although her being permitted to manifest her religion must weigh heavily in the balance, the reasons put forward by her employers for asking her to remove the cross outweighed them. These were the protection of health and safety on a hospital ward.

The other two applicants wanted the ECHR to rule that their manifestation of their religious beliefs required their employers change their job descriptions where their beliefs conflicted with some of the duties they were normally required to perform. Ms Ladele was a registrar, whose employer required her to perform civil partnership ceremonies. They attempted to accommodate her but rota changes had created problems. Mr McFarlane had taken a job providing counselling services for Relate, but was unwilling to provide counselling for same sex couples.

Both of their applications failed. The ECHR noted that their employers’ justification for refusing their requests was the provision of non-discriminatory services, so departures from those required serious reasons by way of justification. In Mr McFarlane’s case they also took into account that he had been aware of the requirement about which he was objecting before he took the job but rejected the argument that accepting the job absolved his employers of any responsibility to consider reasonable accommodations.

The ECHR has left the decision to employers. If an employer is reasonable and can explain why a particular policy is necessary it is likely to be upheld. Employers know they should try to accommodate religious beliefs in the workplace and the four cases provide examples of the issues they are likely to face.

Many commentators think that the ECHR has reached the only decision it could. To have done less would have laid it open to complaints of failing to uphold rights granted by law. To be more prescriptive would have opened the door to many more applications, and to complaints that it was interfering in decisions at a level that should be left to domestic courts.

The principle was set out by South African judge Albie Sachs:
“The underlying problem in any open and democratic society based on human dignity, equality and freedom in which conscientious and religious freedom has to be regarded with appropriate seriousness, is how far such democracy can and must go in allowing members of religious communities to define for themselves which laws they will obey and which not. Such a society can cohere only if all its participants accept that certain basic norms and standards are binding.”