The European Court of Human Rights has today ruled that English courts breached a British woman’s freedom of religion rights to wear a crucifix - a visible symbol of her faith - in the workplace.
However, in three other judgments on the right to manifest religion in the workplace the Strasbourg court endorsed the English courts’ original findings.
In the first case, British Airways (BA) employee Nadia Eweida was told that the company’s uniform policy required staff members to conceal religious items that they had to wear under their clothes.
Eweida (pictured) lodged a claim of religious discrimination with the employment tribunal, which found that the visible wearing of a cross was not a requirement of the Christian faith, but was a matter of personal choice, and that she had failed to establish that BA’s uniform policy had put Christians at a disadvantage.
Her appeal to the Court of Appeal was rejected and, in May 2010, the Supreme Court refused leave to appeal.
However, Strasbourg today ruled that the domestic courts had not struck a fair balance between BA’s legitimate wish to project a certain corporate image and Eweida’s right to manifest her religion. It ordered the UK to pay her €2,000 in non-pecuniary damage and €30,000 in costs and expenses.
The second case concerned nurse Shirley Chaplin, whose manager told her that wearing a crucifix outside her uniform was a health and safety risk to patients, and instructed her to remove it. An employment tribunal rejected her claim.
Strasbourg also found against her, finding that hospital managers were better placed to make decisions about clinical safety than a court.
The third and fourth cases concerned births, deaths and marriages registrar Lillian Ladele and Relate counsellor Gary McFarlane, whose Christian beliefs hold that homosexual relationships are contrary to God’s law.
They were both dismissed for failing to carry out duties that they considered condoned homosexuality, namely civil partnership ceremonies and psychosexual therapy between same-sex couples. Strasbourg ruled that the applicants’ employers were right to promote equal opportunities and require employees not to discriminate against others on the grounds of sexual orientation.
Roger Smith, former director of human rights group JUSTICE, said: ‘The Strasbourg court has got it spot on, defying those poised to attack it. The judgment displays a sensible balance, largely supports the decisions of domestic tribunals and focuses on the extent to which displays of religious belief might interfere with work practices.’
London and Oxford firm Manches employment law partner Tom Walker said: ‘The Strasbourg court understandably distinguishes between a person who is herself refusing to apply equality in her job through her refusal to conduct same-sex civil partnerships and someone who merely asks to be allowed to wear a small cross at work. As lawyers used to say "res ipsa loquitur" - the thing speaks for itself.’
However some experts said the judgments could add to confusion. Daniel Peyton, employment partner with international firm McGuireWoods, said that the judgment ‘puts us back where we started before the case went to the ECHR with different rights competing with each other.
‘Essentially, the judgment places these types of cases at the whim and prevailing wind of the current legislature and tribunals. In the UK at the moment, the prevailing view is that rights based on sexual orientation outweigh rights based on religious freedom, but that could change.
‘Looking at the facts of the two crucifix cases, the ECHR’s decision seems quite straightforward and comprehensible, whether one agrees with the result or not. The remaining two cases are far more difficult, where the rights of one individual to express their religion are in direct conflict with the rights of another individual not to be discriminated against because of sexual orientation.
‘The judgment means that in future these decisions will be subjective, making it almost impossible for employers, particularly companies operating in different global jurisdictions, to make an objective decision. It may be that the legislature will need to step in with regulation regarding which rights have greater weight in which circumstances.’