London, 24 January 2013
On 15 January 2013, The European Court of Human Rights (ECtHR) issued its long-awaited judgment in Eweida and others v UK, in which it ruled on the joined cases of four Christians who claimed that the UK had violated their rights under Article 9 (freedom of religion) and/or Article 14 (prohibition of discrimination) of the European Convention on Human Rights and Fundamental Freedoms (ECHR). In all bar one of the cases, which involved employees who had either been disciplined or dismissed as a result of their refusal to carry out a part of their job which they felt would be contrary to their Christian faith, the Court found that the UK had not violated the individuals' rights.
Two of the cases, those of Ms Eweida and Ms Chaplin, concerned employees who claimed that their employers had discriminated against them on the ground of their religion because the employers enforced a uniform policy which prevented them from wearing a cross visibly around their neck. In the case of Ms Eweida, her employer, the private company British Airways (BA), suspended her without pay in 2006 as her refusal to remove her cross breached a uniform policy intended to maintain a strong corporate image. In Ms Chaplin's case, in 2009 her state hospital employer refused to allow her to wear a cross visibly round her neck in her nursing role, due to the health and safety risk it posed to her and her patients.
The other two cases, those of Mr MacFarlane and Ms Ladele, involved employees who would not carry out a part of their job due to their conviction that to do so would be contrary to the requirements of their Christian faith, which they believed meant that they could not condone homosexual acts or union. In the case of Ms Ladele, from 2005, her public authority employer required her, as a registrar, to conduct civil partnership registrations for same-sex couples. Ms Ladele's refusal to carry out such registrations and complaints from other staff members ultimately led to her dismissal for failing to comply with the authority's “Dignity for All” policy which required no discrimination against staff and service users. In the case of Mr MacFarlane, his private employer Relate dismissed him knowing that he believed that “homosexual activities” were a sin and considering that this was impacting on his willingness to carry out his job in line with its equal opportunities policy, by providing psycho-sexual counselling to same-sex couples.
All four applicants' claims of direct and/or indirect discrimination under the Employment Equality (Religion or Belief) Regulations 2003 before the UK tribunals and courts had been unsuccessful and they all took applications to the ECtHR in 2010. Ms Eweida, Ms Chaplin and Mr MacFarlane claimed violations of Article 9 and Article 14 (taken with Article 9) ECHR. Ms Ladele claimed a violation of Article 14 taken with Article 9.
The ECtHR found that the three Article 9 claims related to a “manifestation” by the applicant of a religious belief and so fell within the scope of Article 9(1) protection. The Court's decision turned on whether the restriction by the state of this manifestation (either directly as a public employer or through the positive obligation owed by the state courts to uphold Convention rights when making their judgments) was justified as a proportionate means of achieving a legitimate aim. In the case of Ms Eweida the Court held, by a five to two majority, that the UK had violated Ms Eweida's rights as a fair balance had not been struck between the various competing interests. They stated that the UK's Court of Appeal had accorded too much weight to BA's maintenance of a corporate image when balancing it with Ms Eweida's right to freedom of religion. However, the Court unanimously agreed that the right balance had been struck in Ms Chaplin and Mr MacFarlane's cases and the interference with their Article 9 rights was proportionate. Considering that the test of proportionality would be similar under Article 14, the court did not consider it separately in any detail.
In the case of Ms Ladele, whose claim was a breach of Article 14 (taken with Article 9), the Court found by a five to two majority that there had been no violation of her right. Specifically it found that, although the authority's policy put Ms Ladele at a disadvantage because of her religious beliefs, it could nevertheless be justified as proportionate in its aim to protect the rights of others to be free from discrimination.
The Equal Rights Trust welcomes the emphasis placed by the Court, in the cases of Ms Ladele and Mr MacFarlane, on the importance of equal rights for all regardless of sexual orientation. While the decision provides some helpful clarity when the balance at stake is between one person's right to manifest their religious belief and another's right to be free from discrimination on grounds of their sexual orientation discrimination, it is not a panacea for all frictions which arise in a multi-faith society. Regrettably, the judgment does not provide clarity on some important questions of the interpretation of Article 14, in particular, the question raised in the dissenting judgment in Ms Eweida's case, as to whether or not, for a successful indirect discrimination claim under Article 14, an applicant needs to show that a policy disadvantages a group or an individual who manifest their belief in that particular way.
To read the Court's judgment in English click here
To read ERT's Case Summary click here
