ECHR Rules on Right to Manifest Religion at Work

The European Court of Human Rights (ECHR) has given its judgment in the case of four employees who argued that UK laws failed to protect their Convention right to express their Christian beliefs.  The Court found that in three of the four cases the employees’ rights had been adequately protected, but upheld the claim in the fourth case.

The cases concerned:

• Nadia Eweida, the British Airways (BA) worker sent home after she refused to remove her cross which she wished to wear visibly, which was in beach of her employer’s uniform code;
• Shirley Chaplin, the NHS nurse moved to a desk job for similar reasons;
• Lilian Ladele, the Islington registrar who was disciplined for refusing to conduct civil partnerships; and
• Gary McFarlane, the Relate relationship counsellor dismissed after he objected to giving sex therapy advice to same-sex couples.

All of these lost their religious discrimination claims before the UK courts and referred the matter to the European Court of Human Rights to determine whether their human rights (and in particular their freedom to manifest their religious belief) had been infringed. 

The ECHR upheld Ms Eweida’s claim, finding that the courts had not struck a fair balance between Ms Eweida’s desire to manifest her religious belief by wearing her cross visibly and her employer’s wish, through its uniform code, to project a certain corporate image.  Ms Eweida’s cross was discreet and could not have detracted from her professional appearance.  Other employees had been permitted to wear items of religious clothing, such as turbans and hijabs, without any negative impact on BA’s brand or image.   In addition, the fact that BA had subsequently amended its uniform code to allow for visible wearing of religious symbolic jewellery showed that the earlier prohibition had not been of crucial importance.   Ms Eweida was awarded 2000 euros to compensate her for anxiety, frustration and distress but she was refused any compensation for loss of earnings.  

As for Ms Chaplin, the ECHR considered that whilst the importance of her being able to manifest her religion weighed heavily in the balance, she had been asked to remove her cross for health and safety reasons which were inherently of much greater importance.  Requiring her to remove her cross had not been disproportionate and the interference with her freedom to manifest her religion had been necessary to protect the rights and freedoms of others. 

In the cases of Ms Ladele and Mr McFarlane, the ECHR considered that the most important factor was that the employers’ policies were intended to secure the rights of same-sex couples, whose rights were also protected under the European Convention on Human Rights.  The employers had a wide discretion when striking a balance between their right to secure the rights of others and their employees’ right to manifest their religion and the correct balance had been struck in these cases.   

This is not necessarily the last word in this long-running saga.  It remains open to the parties to appeal to the Grand Chamber of the ECHR to make a final ruling.  The ruling as stands appears to give employers plenty of scope for justifying their actions where competing rights are at stake.

The ECHR confirmed that the protection afforded by the European Convention on Human Rights is not limited to manifestations required by a religion – so the fact that Christians are not required by their religion to wear a cross does not mean that they are not protected by the Convention.  Provided there is a sufficiently close nexus between the act (for example wearing the cross visibly) and the belief, it will be protected.  The ECHR also rejected an argument that the fact that an employee can resign and take up employment elsewhere means that there is no interference with their Convention rights.  Instead that fact should be weighed in the balance when considering whether the restriction is proportionate.