Labour & European Law Review Weekly Issue 315 18 April 2013
The Religion or Belief Regulations (now part of the Equality Act) outlaw religious discrimination. In Eweida and ors v United Kingdom, the European Court of Human Rights held that states have a wide “margin of appreciation” when striking a balance between an individual’s right to manifest their religious belief and an employer’s interest in securing the rights of others.
This conjoined case concerned four claimants. Ms Eweida (a member of BA’s check in staff) and Ms Chaplin (a nurse) complained that their employers’ refusal to allow them to openly wear a cross was discriminatory and therefore in breach of the regulations. Ms Ladele (a registrar) and Mr McFarlane (a relationship counsellor) argued that their employers had discriminated against them when their employers sanctioned them for refusing to provide services to same-sex couples.
Having lost their cases in the domestic courts, the four complained to the European Court that UK law had failed to protect their right to manifest their religion adequately. Specifically they argued that their employers were in breach of article 9 (the right to freedom of thought, conscience and religion) and article 14 (which prohibits discrimination) of the European Convention on Human Rights.
Decision of European Court of Human Rights
Although it acknowledged that freedom of thought, conscience and religion was one of the foundations of a “democratic society”, the Court made clear that the right of one person to manifest their religious belief was not an absolute one.
To count as a “manifestation” within the meaning of article 9, the Court said that the act in question had to be intimately linked to the religion or belief, such as an act of worship or devotion, although it did not have to be a requirement of the religion.
In the present case, it said that Ms Eweida’s wish to wear a cross that was visible to others was a manifestation of her religious belief and therefore came under the aegis of article 9. Unlike previous cases the Court declined to hold that the fact that an employee could resign and go elsewhere meant that a condition imposed in employment could not be said to interfere in the right to manifest a belief. Instead, it took the view that the ability of the employee to resign was one factor to be taken into account when considering the overall question of proportionality.
Applying the principles of proportionality the Court decided that although British Airwaysʹ aim of protecting its corporate image was legitimate, the UK courts had given too much weight to this, not least because there was no evidence that wearing religious clothing had a negative impact on its brand. Finally, as the manifestation of her religion did not encroach on the interests of others, it concluded that her rights under article 9 had been breached.
However, it dismissed the other three complaints. Ms Chaplin’s article 9 rights had not been violated as it was hospital policy to ban all jewellery in order to reduce the risk of infection. As her employer had asked her to remove her cross for her own health and safety as well as that of patients, it was not disproportionate and the interference with her freedom to manifest her religion was necessary.
As for Ms Ladele, the Court held that the local authority’s aim of promoting equal opportunities and offering services that did not discriminate against same-sex couples was legitimate. Although the consequences for her were serious, the local authority had to balance her rights against the rights of others which were also protected under the Convention. In this case her complaint that her rights under articles 9 and 14 had been violated could not be upheld.
Finally, with regard to Mr McFarlane, the Court held that “the most important factor to be taken into account is that the employer’s action was intended to secure the implementation of its policy of providing a service without discrimination. The State authorities therefore benefitted from a wide margin of appreciation in deciding where to strike the balance between Mr McFarlane’s right to manifest his religious belief and the employer’s interest in securing the rights of others. In all the circumstances, the Court does not consider that this margin of appreciation was exceeded in the present case”.
The decisions in all four cases show the importance of proportionality. In all four the employer was found to have had a legitimate aim for the alleged discriminatory act. But Ms Ewedia's case was the only one with a finding that the discriminatory act was not a proportionate means of achieving a legitimate aim.