Discrimination – Religious discrimination
Eweida and others v United Kingdom (App. Nos. 48420/10, 59842/10, 51671/10 and 36516/10): European Court of Human Rights: 15 January 2013
Four applicants were before the Court in cases claiming that their right to manifest their religion pursuant to art 9 of the European Convention on Human Rights had been breached in a disproportionate fashion. The first applicant, E, worked from 1999 for British Airways plc, a private company. Until 2006, E wore a cross at work concealed under her clothing. In May 2006, she decided to start wearing the cross openly, as a sign of her commitment to her faith. Her manager asked her to remove the cross and chain or conceal them. She refused. She was later offered administrative work without customer contact, which would not have required her to wear a uniform, but she rejected the offer.
She lodged a claim with the employment tribunal, claiming damages for indirect discrimination contrary to reg 3 of the Employment Equality (Religion and Belief) Regulations 2003, and complaining of a breach of her right to manifest her religion pursuant to art 9. The tribunal found that the visible wearing of a cross was not a mandatory requirement of the Christian faith, but rather E’s personal choice. There was no evidence that any other of the 30,000 uniformed employees had ever made such a demand. The uniform policy had therefore not put Christians generally at a disadvantage, as was necessary to found the claim for indirect discrimination. E’s appeal to the Employment Appeal Tribunal was dismissed, as was her further appeal to the Court of Appeal. The Supreme Court refused permission to appeal and E brought her complaint to the European Court of Human Rights.
The applicant in the second case, C was also a practising Christian who wished to wear a cross in a visible fashion. She worked as a nurse for an NHS Trust, which banned certain items of jewellery on health and safety grounds, including the cross. C complained to the employment tribunal of both direct and indirect discrimination. The tribunal held that there was no direct discrimination since the policy was not on religious grounds but those of health and safety. It further held that there was no indirect discrimination because there was no evidence that ‘persons’ other than C had been put at a particular disadvantage. In any event, the hospital’s response to the request to wear the cross had been proportionate. Given the outcome in E’s case, C was advised not to appeal, and she instead brought a complaint to the European Court of Human Rights.
In the third case, the applicant, M, was a registrar of births, deaths and marriages. She was paid by a local authority although initially it was not her employer; instead she held office under the aegis of the registrar general. The local authority had an equality and diversity policy which among other things banned discrimination by its staff on the basis of age, gender, disability, faith, race, sexuality, nationality, income or health status. Its code of conduct also forbade discrimination by its employees on those grounds. After the Civil Partnership Act 2004 came into force, the authority designated all registrars as civil partnership registrars. It was not required to do so and other local authorities had allowed registrars with sincere beliefs to opt out of that designation. Initially it permitted L to make informal arrangements to exchange work so she did not have to conduct civil partnership ceremonies. In March 2006, however, two colleagues complained that her refusal to carry out the ceremonies was discriminatory. The authority told L that her refusal could put her in breach of its code of conduct and the equality policy. L complained to the employment tribunal, alleging both direct and indirect discrimination on religious grounds and also harassment.
From 2007 she became an employee of the authority. The tribunal upheld her complaints, holding that the authority had ‘placed a greater value on the rights of the lesbian, gay, bisexual and transsexual community than it placed on the rights of [L] as one holding an orthodox Christian belief’. The authority appealed successfully to the Employment Appeal Tribunal, which held that the authority’s treatment of L had been a proportionate means of achieving a legitimate aim, namely providing the registrar service on a non-discriminatory basis. The Court of Appeal upheld that ruling and the Supreme Court refused L permission to appeal. L complained to the European Court of Human Rights.
The fourth applicant, M, was also a practising Christian. He believed that homosexual activity was sinful. He worked for Relate Avon Ltd (Relate), part of a national private organisation which provided a confidential sex therapy and relationship counselling service. A dispute arose over whether M was prepared to work on sexual issues with homosexual couples. He was dismissed for gross misconduct because Relate did not trust him to comply with its relevant policy, which required no discrimination on the ground of sexual orientation. M complained to the employment tribunal alleging inter alia both direct and indirect discrimination. His complaints were dismissed. It was held that there had been no direct discrimination, because the dismissal was not because of his faith but rather because it was believed that he would not comply with the policies which reflected Relate’s ethos. As to indirect discrimination, it was accepted that the requirement for counsellors to comply with the equal opportunity policy would place an individual sharing M’s religious beliefs at a disadvantage.
However, Relate’s commitment to equality was fundamental to its work and thus the dismissal had been a proportionate means of achieving a legitimate aim. M’s appeal to the Employment Appeal Tribunal failed and he was refused permission to appeal to the Court of Appeal, the court ruling that the appeal had no prospect of success given the result in L’s case. M brought a complaint before the European Court of Human Rights.
The UK government relied in respect of the first, second and third applicants on the case-law of the Court to the effect that the art 9 did not protect each and every act or form of behaviour motivated or inspired by religion or belief. They argued that behaviour which was motivated or inspired by religion or belief, but which was not an act of practice of a religion in a generally recognised form, fell outside the protection of art 9. It was not suggested that the visible wearing of a cross was a generally recognised form of practising the Christian faith, still less one that was regarded as a mandatory requirement. Similarly, M’s objection to providing psycho-sexual therapy to same-sex couples could not be described as the practice of religion in a generally recognised form. In the alternative, the government argued that even if the visible wearing of the cross, or the refusal to offer specific services to homosexual couples, were a manifestation of belief and thus a right protected by art 9, there had been no interference with this right in respect of any of the applicants. Further, the government argued that the measures taken by the employers had been proportionate to a legitimate aim in each case. The applicants disputed those propositions.
The Court ruled: (1) As enshrined in art 9, freedom of thought, conscience and religion was one of the foundations of a ‘democratic society’ within the meaning of the Convention. In its religious dimension it was one of the most vital elements that went to make up the identity of believers and their conception of life, but it was also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society depended on it. Religious freedom was primarily a matter of individual thought and conscience. That aspect of the right set out in the first paragraph of art 9, to hold any religious belief and to change religion or belief, was absolute and unqualified.
However, as further set out in art 9(1), freedom of religion also encompassed the freedom to manifest one’s belief, alone and in private but also to practice in community with others and in public. The manifestation of religious belief might take the form of worship, teaching, practice and observance. The right to freedom of thought, conscience and religion denoted views that attained a certain level of cogency, seriousness, cohesion and importance. Provided that was satisfied, the state’s duty of neutrality and impartiality was incompatible with any power on the state’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs were expressed. Even where the belief in question attained the required level of cogency and importance, it could not be said that every act which was in some way inspired, motivated or influenced by it constituted a ‘manifestation’ of the belief. It was true that there was case-law which indicated that if a person was able to take steps to circumvent a limitation placed on his or her freedom to manifest religion or belief, there was no interference with the right under art 9(1) and the limitation therefore did not have to be justified under art 9(2). In cases involving restrictions placed by employers on an employee’s ability to observe religious practice, several decisions had held that the possibility of resigning from the job and changing employment meant that there was no interference with the employee’s religious freedom.
The better approach was that, where an individual complained of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with that right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate. The Court left the states party to the Convention a certain margin of appreciation in deciding whether and to what extent an interference was necessary (see - of the judgment).
(2) (Judges Bratza and Thor Bjorgvinsson dissenting) Applying those principles to the instant cases, the refusal by BA to allow E to remain in her post while visibly wearing a cross amounted to an interference with her right to manifest her religion. Since the interference was not directly attributable to the state, it was necessary to examine whether in all the circumstances the state authorities complied with their positive obligation under art 9. On the facts of E’s case, a fair balance had not been struck between E’s desire to manifest her religion and BA’s desire to project a certain corporate image. While the latter was undoubtedly legitimate, it had been accorded too much weight by the domestic courts. E’s cross was discreet and could not have detracted from her professional appearance. There was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had had any negative effect on BA’s image. In those circumstances, where there was no evidence of any real encroachment on the interests of others, the domestic authorities had failed to protect E’s right to manifest her religion, in breach of the positive requirement of art 9 (see - of the judgment). Making its assessment on an equitable basis, E would be awarded €2,000 in respect of non-pecuniary damage (see  of the judgment).
(3) In the case of C, by contrast, the reason for asking her to remove the cross, namely the protection of health and safety on a hospital ward, was inherently of a greater magnitude than that which applied in the case of E. Moreover, that was a field in which the domestic authorities had to be allowed a wide margin of appreciation. The hospital managers were better placed to make decisions about clinical safety than a court, particularly an international court which had heard no evidence. It followed that the measures complained of by C were not disproportionate and her application would be dismissed (see - of the judgment).
(4) (Judges Vucinic and de Gaetano dissenting) With regard to L, the Court agreed with her contention that the requirement that all registrars be designated as civil partnership registrars had a particularly detrimental impact on her because of her religious beliefs. It was therefore necessary to determine whether the policy pursued a legitimate aim and was proportionate. Differences in treatment based on sexual orientation required particularly serious reasons by way of justification. Same-sex couples were in a relevantly similar situation to different-sex couples as regards their need for legal recognition and protection of their religion and protection of their relationship, although given that it was a developing area contracting states enjoyed a wide margin of appreciation in the way in which that might be achieved.
Against that background, it was evident that the aim pursued by the authority was legitimate. As to whether it was proportionate, the Court took account of the fact that the consequences for L were serious: given the strength of her religious convictions, she felt no option other than to face disciplinary action. Nor had she waived any right to manifest her belief, given that civil partnerships had not existed at the time she started her employment. On the other hand, the local authority’s policy aimed to secure the rights of others which were also protected under the Convention, and the Court generally allowed national authorities a wide margin of appreciation when it came to striking a balance between competing Convention rights. In all the circumstances, the national authorities in the form of the local authority had not exceeded the margin available to them (see  of the judgment).
(5) As to M, the most important factor to be taken into account was that the employer’s action was intended to secure the implementation of its policy of providing a service without discrimination. The authorities therefore benefited from a wide margin of appreciation in deciding where to strike the balance between M’s right to manifest his religious belief and the employer’s interest in securing the rights of others. In all the circumstances, that margin had not been exceeded in M’s case (see - of the judgment).