ECHR Chamber Judgment Eweida and Others v. United Kingdom: Between the freedom of religion and the prohibition of discrimination

The cases

Nadia Eweida, an employee of a prominent UK airline, and Shirley Chaplin, a geriatric nurse, challenged the restrictions of their respective employers, who prohibited the wearing of Christian crosses on a necklace while at work. Eweida was serving at a British Airways check-in desk when the airline officially restricted the display of religious symbols. In 2004, British Airways hadintroduced a new uniform with an open-necked blouse for women. The wearer guide issued by the airline declared that “no other items are acceptable to be worn with the uniform”, and that “any item of jewelry that does not conform to the above regulations” had to be removed. Because male Sikh employees were allowed to wear a dark blue or white turban or to display the Sikh bracelet in summer, and because female Muslim ground staff members were authorized to wear a hijab in British-Airways-approved colors, Eweida felt discriminated against as a Christian by the ban. After a series of media reports in 2006 about the case, British Airways eased the restrictions in the beginning of 2007. Until that time, Eweida had taken a stand by staying at home without receiving any salary. British Airways refused to compensate her for the earnings lost during the period when she had chosen not to come to work.

In a similar case, Shirley Chaplin was requested by her employer to remove the cross and chain during work due to health and safety regulations at the hospital. The clinic had a uniform policy, based on guidance from the Department of Health, which aimed to “minimize the risk of cross infection”. In order to reduce the risk of injury when handling patients, no necklaces were allowed to be worn. It was suggested that she could secure her cross and chain to the lanyard which held her identity badge clipped to a pocket and was required to be removed when performing close clinical duties. Chaplin was transferred to a non-nursing temporary position and shortly later left her work.

The Islington Borough Council registrar, Lillian Ladele, and the relationship counselor, Gary McFarlane, refused respectively to wed and to advise same-sex couples. In their view, same-sex civil partnerships were against their faith. Ladele went to court, because she felt forced by her employer, the district administration in North London, to choose between her religious belief and her job. Her employer had an equality and diversity policy, safeguarding “community cohesion by promoting shared community values and understanding, underpinned by equality, respect and dignity for all.” Since the 2004 Civil Partnership Act, the registration of civil partnerships between two people of the same sex became legal in the UK. Initially, Ladele was permitted to make informal arrangements with colleagues to exchange work so that she did not have to conduct civil partnership ceremonies. However, two colleagues complained that her refusal to carry out such duties was discriminatory. Subsequently, Ladele was informed by the local authority that refusing to conduct civil partnerships put her in breach of the Code of Conduct and of the equality policy.

McFarlane worked as a therapist in relationship counseling, but refused to advise gay or lesbian couples. He stated that his Christian faith forbids him from supporting homosexuality. McFarlane argued that he “holds a deep and genuine belief that the Bible states that homosexual activity is sinful and that he should do nothing which directly endorses such activity.” Yet, his employing organization is a member of the British Association for Sexual and Relationship Therapy following a Code of Ethics and Principles of Good Practice that established that therapists “must be aware of his or her own prejudices and avoid discrimination, for example on grounds of religion, race, gender, age, beliefs, sexual orientation, disability.” He was suspended and half a year later had to leave his office.

Complaints and arguments

Their applications to the European Court of Human Rights were related on the point of freedom of thought, conscience and religion, enshrined in Article 9 of the European Convention of Human Rights, and on the point of the prohibition of discrimination, as guaranteed in Article 14 of the Convention.

Eweida’s lawyer argued that nothing in the Convention indicated that religious freedom stops in the moment where someone crosses the threshold to her or his work place, particularly given that people spend the majority of their lifetime at work. Eweida stressed that she was denied protection under national law for her “entirely sincere and orthodox desire to manifest her faith by wearing a cross.” Chaplin argued that the visible wearing of a cross or crucifix was clearly an aspect of the practice of Christianity in a generally recognized form. McFarlane contended that, in failing to treat her differently from those staff who did not have a conscientious objection to registering civil partnerships, the local authority indirectly discriminated against her. In Ladele’s opinion, the protection offered by Article 9 would be empty of content if it did not go beyond merely safeguarding private manifestation of faith or belief. Moreover, it should not be up to the State to determine those very religious issues.

The UK government responded that employees have no right to insist on changes to their work conditions, so that the requirements of their religion or faith are met. The government argued that employees have no right to practice their religion at work without restriction. The government argued that behavior motivated or inspired by religion or belief, such as the visible wearing of a cross, is not an act of practice of a religion in a generally recognized form and therefore falls outside the protection of Article 9. Similarly, the objection to counsel same-sex couples could not be described as the practice of Christian religion. Finally, the government maintained that it was important to find a reasonable balance between the freedom of religion and the rights of others.

The judgment

The European Court of Human Rights (ECtHR) generally recognized the right of Christian employees to wear a necklace with a cross in public. Concerning the flight attendant, the judges noted that the ban of the cross necklace by the employer constituted a violation of employees’ religious freedom. The Court granted the 61-year old British Airways ground staff a compensation of 2000 euros.

On the other side, a nurse cannot fully rely on her freedom of religion the Court ruled in this case. Her freedom of religion is outweighed by the employer’s health and safety requirements. The protection of patients’ health and clinical safety have priority. The Court highlighted that patients may, for instance, get injured by the nurse’s necklace. As a nurse works in close physical proximity to people, there is a possibility of accidents resulting from the chain. According to the judgment, the right to wear religious symbols at work is protected by the Convention on Human Rights, but that right must be balanced against the rights of others. The Court declared that in the field of health and safety protection, “the domestic authorities must be allowed a wide margin of appreciation.” In this regard, the “hospital managers were better placed to make decisions about clinical safety than a court, particularly an international court which has heard no direct evidence.”

The registrar’s and the relationship counselor’s complaints were dismissed. In the Court’s view, the lack of explicit protection in UK law to regulate the wearing of religious symbols in the workplace does not mean in itself that the right to manifest religion is breached. In each case the employer was pursuing a policy of non-discrimination against service-users. Those policies, which promote equal opportunities and require employees to act in a non-discriminatory way, serve the legitimate aim of securing the rights of others. Since 2005, same-sex couples have been allowed to enter into civil partnerships in the UK. In 2010, the ECtHR had ruled in Schalk and Kopf v. Austria that once states do allow equal marriage, same-sex couples are protected in exactly the same way as heterosexual couples in terms of marriage rights. Against this background, it was “evident that the aim pursued by the local authority was legitimate.”

Conclusion

The judgment stands in a continuing line of decisions at the European Court of Human Rights on the freedom of religion and on non-discrimination. The growing volume of decisions on the question when a person is allowed to display religion demonstrates how crucial issues of religious faith, non-belief and pluralism are in European society today.

Previously, in 2011, the Court decided in Lautsi v. Italy (30814/06) that the question concerning religious symbols in classrooms was, in principle, a matter falling within the margin of appreciation of the State, as far as it did not lead to a form of indoctrination. A concerned mother had turned to the Court, because her children attended a state school where all the classrooms had a crucifix on the wall, which she considered contrary to the principle of secularism. The judges stated that there was no European consensus as regarded the question whether religious symbols could be kept in classrooms. Hence, the Grand Chamber found no violation of Article 2 of Protocol No. 1, and it held that no separate issue arose under Article 9 ECHR.

Earlier, in 2010, the Court had in Ahmet Arslan and Others v. Turkey (41135/98) dealt with a case of a religious group that complained that a Turkish law restricted the wearing of headgears and religious garments in public. The Court stated that religious neutrality might take precedence over the right to manifest one’s religion. However, in this particular case it found a violation of Article 9 ECHR, holding in particular that there was “no evidence that the applicants had represented a threat to the public order or that they had been involved in proselytism by exerting inappropriate pressure on passers-by during their gathering.”

In Eweida and Others v. the United Kingdom, the Court found a Solomonic solution. Indeed, Europe has to remain a space for the freedom of religion. However, at work there can be restrictions, depending on the job and the situation. A safety regulation in hospitals which forbids the wearing of some jewelry that might present a health hazard to patients, such as necklaces, relates to all employees equally. Also, in those cases, there needs to be some leeway for the display of faith, but not at the cost of other, colliding rights. In the case of British Airways, there seemed to be a degree of hypocrisy in allowing only some exceptions from their employee uniform regulations. It is a double standard to permit Muslim women to display their faith by wearing the hijab which British Airway even personalized in the colors of the airline, whereas a Christian flight attendant is asked to hide her cross from her uniform.

A therapist and a registrar whose employers explicitly subscribed to Code of Conduct about non-discrimination are in another category. As a public authority, a registrar needs to treat all citizens equally. A private self-employed therapist might have the right to pick his clients, but an employed therapist working in a company needs to abide by the rules of the employer, particularly when they are implementing recent legislation on non-discrimination. For the sake of the freedom of religion, companies need to adapt themselves at least in some ways to the habits of their staff, for instance, by allowing breaks for praying times and by showing respect for religious habits. However, if the faith is incompatible with the actual conduct of work and an exception would discriminate other employees, there might be no other solution than leaving the company.

Under Articles 43 and 44 of the Convention, the Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. Thus the last words in this case might have not yet been spoken.

Eweida and Others v. the United Kingdom (application nos. 48420/10, 59842/10, 51671/10 and 36516/10), Jan. 15, 2013, available at here

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