Strasbourg judgment: Eweida and others v UK

by Carl Gardner on January 15, 2013

Nadia Eweida has succeeded in her claim that the UK breached her right to manifest her religion under article 9 of the European Convention on Human Rights. Readers may remember that she worked for British Airways, and refused to abide by its uniform policy, insisting on wearing a cross visible to customers. By a majority of five to two (the dissenters including the Court’s British former President, Sir Nicolas Bratza), the judges of the European Court of Human Rights found that the English court that dismissed her religious discrimination and human rights claim at national level, the Court of Appeal, gave too much weight to BA’s corporate aims and not enough to Ms Eweida’s desire to manifest her religion by wearing her cross. In consequence, the UK breached its “positive obligation” to protect her right to manifest her religion.

The other applicants lost: they were Shirley Chaplin (the nurse who wanted to wear a cross in breach of her NHS employer’s policy); Lillian Ladele (the registrar who wanted to refuse to carry out civil partnership ceremonies) and Gary McFarlane (the Relate counsellor who wanted to avoid giving sex therapy to same-sex couples). Chaplin and McFarlane’s claims were rejected by the judges unanimously; while Ladele’s was rejected by five judges to two – this time, judges De Gaetano and Vučinić made up the dissenting minority.

The National Secular Society has welcomed the judgment – and from a secular point of view it’s important to remember that most of the claims failed. In particular, it seems that the ECtHR will be unsympathetic to those who in effect claim that  because of their faith, their public or third sector employer must allow them to discriminate against gay people in providing services. That is a real gain for secular values in Britain and Europe.

But I’m concerned about Eweida’s victory, and the reasoning behind the rejection of Shirley Chaplin’s claim. As far as religious symbols are concerned, the judgment represents a significant win for religious activists, and a blow for employers and secularism. Perhaps even more importantly, the case is another example of the Strasbourg court micromanaging respect for human rights in the UK rather than allowing appropriate respect for UK domestic authorities. That, though, is an aspect of the case I expect to be largely ignored by those Conservative voices who, in a different type of case involving a different type of claimant, would quickly denounce the interventionism Strasbourg has indulged in here.

The European Court held that Nadia Eweida’s desire to wear a cross at work was a manifestation of her religious belief (para. 89 of the judgment). BA’s refusal for six months to allow her to wear it in a customer-facing role was an interference with her right to manifest that belief (para. 91). The ECtHR accepts (para. 92) that

it is clear that the legitimacy of the uniform code and the proportionality of the measures taken by British Airways in respect of Ms Eweida were examined in detail

in the English courts. The Court of Appeal in particular was right (the ECtHR says at paras. 93 and 94 of its judgment) to take into account the fact that the dress code had been in force for years and had caused no problem to Ms Eweida or anyone else; that she simply decided to arrive at work displaying her cross, without waiting for the results of her grievance procedure; that the issue was conscientiously addressed by BA once the complaint had been lodged, and that Ms Eweida was offered an administrative post on identical pay (which she refused).

The Court also says (para. 94) that

Moreover, in weighing the proportionality of the measures taken by a private company in respect of its employee, the national authorities, in particular the courts, operate within a margin of appreciation.

Yet in spite of all this, the majority of the Strasbourg judges preferred to substitute their own assessment of proportionality for that of the national court (paras. 94-95):

Nonetheless, the Court has reached the conclusion in the present case that a fair balance was not struck. On one side of the scales was Ms Eweida’s desire to manifest her religious belief … On the other side of the scales was the employer’s wish to project a certain corporate image. The Court considers that, while this aim was undoubtedly legitimate, the domestic courts accorded it too much weight. Ms Eweida’s cross was discreet and cannot 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 any negative impact on British Airways’ brand or image. Moreover, the fact that the company was able to amend the uniform code to allow for the visible wearing of religious symbolic jewellery demonstrates that the earlier prohibition was not of crucial importance …

The Court therefore concludes that, in these circumstances where there is no evidence of any real encroachment on the interests of others, the domestic authorities failed sufficiently to protect the first applicant’s right to manifest her religion, in breach of the positive obligation under Article 9.

I have to say that I find it hard, reading the Court of Appeal’s judgment, to see where it “accorded too much weight” to BA’s corporate legitimate aims. Strasbourg’s criticism here is somewhat impressionistic – and really just amounts to preferring to take the proportionality decision itself.

As for the specific reasons the ECtHR gives for doing so it plainly ignores the margin of appreciation it said applied in this area. First, it said Ms Eweida’s cross “cannot have detracted from her professional appearance”. But surely an employer and the national court looking at the case were in a better position to decide this.

Secondly, the Strasbourg judges seem to be imposing a requirement on employers to produce evidence that religious symbols negatively affect their business. But how on earth are businesses supposed to produce this evidence, especially since, applying this ruling, they will be at risk even if they simply redeploy staff to a non-public role for a limited period so as to allow research into the effects of their own preferred policies?

In the third element of its reasoning, the Strasbourg court risks elevating the need for an employer to have a legitimate aim in setting staff policies into a requirement than any aim be “of crucial importance”. But how could an employer show its policies were “crucially important”? On this approach, firms’ own judgments about their commercial needs seems to count for very little, if anything.

Finally, taking all these elements together, the UK courts’ margin of appreciation seems to have vanished. Even though the Court of Appeal examined these issues in detail, taking account of the right considerations, and even though it supposedly enjoyed a margin of appreciation, the European Court has simply second-guessed it.

The dissenting judgment of Judges Bratza and Björgvinsson surely has it right (para. 5):

It is argued in the judgment that too much weight was given by the domestic court to BA’s wish to project a certain corporate image and too little to the applicant’s desire to manifest her religious belief and to be able to communicate that belief to others. We do not think that this does justice to the decision or reasoning of the Court of Appeal. Had the uniform code been stubbornly applied without any regard to the applicant’s repeated requests to be allowed to wear her cross outside her clothing or had her insistence on doing so resulted in her dismissal from employment, we could readily accept that the balance tipped strongly in favour of the applicant. But, as the facts summarised above show, that was not the case. The fact that the company was able ultimately to amend the uniform code to allow for the visible wearing of religious symbols may, as the judgment claims, demonstrate that the earlier prohibition was not “of crucial importance”. It does not, however, begin in our view to demonstrate that it was not of sufficient importance to maintain until the issue was thoroughly examined.

The majority’s ruling is especially worrying given that in Shirley Chaplin’s case, it was the only the clinical context and the importance of clinical safety that decisively tipped the balance against her (see para. 99 of the judgment).

Outside a clinical or health and safety context, it seems to me now difficult for any employer to sustain a policy prohibiting the wearing of religious symbols by any of its staff. It can only do so with any degree of confidence if what an aggrieved employee wants to wear is not capable of being called “discreet”, or if it has good evidence to show that allowing it would damage its business in a “crucially important” way. An employer cannot safely apply such a risky policy on a temporary basis – this ruling effectively gives greater right to employees who are prepared to flout and resist workplace policies rather than accepting compromise. Nor, finally, can an employer feel safe if it satisfies an Employment Tribunal, the Employment Appeal Tribunal the Court of Appeal and even (why would it make any difference?) the UK Supreme Court that its actions were justified and proportionate. Strasbourg has shown in this case that when an employee writes to it it will simply look at the whole thing afresh as a factual appeal court of fourth or even fifth instance.

By rights, this should be one of the most controversial cases recently decided by Strasbourg against the UK. It’s arguably in a similar category to the cases on prisoners’ votes, the margin of appreciation of UK institutions being cast to one side as Strasbourg prefers to micromanage UK employment policy – which you would have thought highly sensitive for Eurosceptic Conservatives. It’s strange, then, that the particular alignment of religious and political interests behind it means the usual suspects, including David Cameron, will probably overlook Strasbourg’s excess on this occasion.

Before I leave this case I should just add that while I think the dissenting judgment of Judges De Gaetano and Vučinić, who see Lillian Ladele as the victim of

a combination of back-stabbing by her colleagues and the blinkered political correctness of the Borough of Islington (which clearly favoured “gay rights” over fundamental human rights)

is at times amusing, it’s also wrong headed. For these Judges, the difference between Ladele’s case and that of Gary McFarlane is that he joined Relate knowing he’d be required to work with same-sex couples, whereas she began work as a registrar before civil partnerships were recognised. There are three problems with this.

First, it misunderstands the nature of public service, which surely involves an acceptance that the detailed content of public duties evolves as democratic institutions legislate bit by bit for all sorts of social change. Second, if followed, their approach would require employers to spell out in contracts in minute and lengthy detail every possible duty their staff might one day be called on to perform. Any task not specifically foreseen on recruitment could be refused later on religious grounds. Finally, a not insignificant source of social change is the European Court of Human Rights itself – when it makes ground-breaking rulings, for instance that transsexuals can marry in their acquired gender. On the approach of De Gaetano and Vučinić, couldn’t anyone simply ignore Strasbourg rulings on grounds of conscience?

{ 18 comments… read them below or add one }

1 Ruthie January 15, 2013 at 22:00

A very interesting case. If an employer permits the wearing of turbans and hijabs – overt symbols of religious belief – then it is difficult to justify banning discreet symbols of other faiths, and to do so in my opinion is discrimination.

2 Alison January 15, 2013 at 22:58

In all seriousness, why should we live in a society where what someone wears should negatively affect their business? Seriously? It smacks of cannot accept diversity.

It translates to other groups too: Black people, Deaf people (deliberately capitalised), etc. The more diverse the workplace is, whatever the diversity, the easier it is for everyone. When someone comes along that doesn’t look like the norm, people aren’t so mentally challenged.

3 Damian January 15, 2013 at 23:04

Independent legal comment and analysis ? You are kidding aren’t you ? Your commentary sounds like a “party political” broadcast by the National Secular Society.

Independent analysis a more objective analysis rather than a rant on behalf of the NSS.

4 Stephen January 15, 2013 at 23:11

Eweida is an excellent judgement – an affirmation of liberal values. It would have been almost inconceivable for the Court to have found in any other way.

Thank God for the Court for its ability to arrest the UK’s slippery journey into illiberalism, authoritarianism and intolerance.

5 Adam January 16, 2013 at 11:05

Damian, Stephen:

I’m curious – what do you think about the ECtHR’s judgment regarding the UK’s blanket ban on prisoner voting? Was that an “affirmation of liberal values”, and does HoL’s (admittedly lukewarm) criticism of the ECtHR’s approach in Hirst above sound like a “”party political” broadcast by the National Secular Society”?

I suggest that HoL’s analysis has been pretty consistent with respect to the ECtHR’s interference with contracting states’ margin of appreciation, irrespective of the politics of the decision.

Also, @HoL (and with some trepidation, noting the recent controversy and irrationality that surrounds this topic): it’s generally considered by trans* people (and others) that using the term “transexual” as a noun is dehumanising and marginalising; your writing would be less alienating for some if you used the word as an adjective (usually to modify a noun such as “person” or “people”).

6 Carl Gardner January 16, 2013 at 12:02

Ruthie,

Fair point. Although I’m not sure all your examples really are “religious symbols” in the same way as a cross, or that they should all be treated differently. I think something you can seriously say you’re required to do or wear is arguably in a different category from something you just feel a strong religious wish to do.

Anyway, why shouldn’t employers’ views vary, and have some influence?

Another key to what you wrote is your “if”. Under this ruling, employers won’t be able to prohibit a discreet cross even if they don’t allow workers to wear turbans or hijabs. It’s laid down a different, broader principle than what you might loosely call “Christian v Muslim equality at work”.

7 Carl Gardner January 16, 2013 at 12:05

Damian,

Fair enough. But “independent” doesn’t mean neutral. I often, perhaps usually, agree with the NSS (I must renew my membership) but I certainly don’t follow their line, or anyone else’s.

8 Carl Gardner January 16, 2013 at 12:14

Stephen,

Perhaps predictably I don’t think this judgment is a great victory for liberal values. I think it should be possible for workplaces to be secular spaces, with a secular ethos – just as I think it should be possible for workplaces to have a religious ethos. I’m afraid that while this judgment permits the latter, it makes the former difficult.

I don’t think employers “own” us or should be allowed to act as though they do; I don’t think all religious expression at work or elsewhere should be suppressed, or that the public space should be made faith-free; and I don’t think equality between religions is irrelevant, either.

But I don’t think it does justice to the issues in this case either to treat it as simply about workers’ rights against employers, or Christians’ rights against Muslims, or “diversity” as synonymous with religious expression. It seems to me also about whether any secular space is possible, and about whether employers (and indeed customers, unions and anyone apart from religious believers) have any say in how we work these things out as a society.

9 Stephen January 16, 2013 at 12:27

@Adam

I am not familiar with the H of L’s analysis to which you refer.

But to provide a specific answer to your question, I am in favour of votes for prisoners. I am also aware of the inconsistencies in the ECtHR’s findings on this matter, most notably, how it permits Italy to impose a lifetime voting ban on long sentence convicts. Crazy! And very wrong (IMHO)

10 David S January 16, 2013 at 12:49

Another pointer that the sensible policy is to leave the ECHR, while maintaining the Human Rights Act. The ECtHR cannot be trusted to leave states a proper margin of appreciation.

11 Adam January 16, 2013 at 12:51

Stephen – thanks for your response, and I agree with you about Scoppula. :)

12 Matt Wardman January 16, 2013 at 12:58

Interesting cases to see together; I’m tempted to blog a commentary.

I agree with the verdicts in public service cases – to refuse to deliver a public service is untenable.

I think one of the issues here is between positive secularism and negative secularism, where I’d see the former as supporting diversity and the latter enforcing sameness.

The BA case is interesting.

My blunt attitude if anyone is offended by a 2cm crucifix (or anything else) on an airport staff member is that the offended party needs a sense of perspective.

One interesting question: how does this mean that rainbow badges for eg LBGT campaigners or other symbols should be treated, as they convey value systems and approaches to life in exactly the same way?

But I’m wondering what I would think of a 2cm swastica.

One problem has been when policymakers have a tin ear, and a future line of exploration will be just when is a Health and Safety policy reasonable.

Clearly a ban on jewellery in a hospital Theatre is necessary, while a similar ban for a receptionist is ridiculous.

Finally I love that the tabloid-Beeb has translated “Relate councillor” into “Christian Sex Therapist !!!”.

As we might smiley: :-)=8

13 Carl Gardner January 16, 2013 at 13:55

Adam,

I obviously need to raise the temperature of my criticism of the ECtHR! Thanks – I am trying to be reasonably consistent on what Strasbourg does. I also think it’s difficult for Strasbourg to get this right, and am anxious to be fair to the judges – I’m going to try to ensure I am. I feel reassured that I’m not being unfair in this case by the fact that judges Bratza and Björgvinsson agree with me.

On my language, there’s no need to feel any trepidation – it’s a fair point, and I always try to be open to criticism, to take it seriously and to debate and discuss things reasonably. I prefer light to heat, though I can’t guarantee how people will respond to me. I don’t use language deliberately to insult or upset people either (well, unless it’s obvious, like when I called Rowan Williams the silliest man in England, or something). I’m generally supportive of what might be called the transsexual cause, and will think about what you’ve said.

But. I think you’re right that there’s some irrationality about language issues like this – or at least, disproportion – and we’ve definitely seen disproportion about this recently. I think criticising others’ language can be an important moral duty; but applying and enforcing specific codes of language can be a form of control and intolerance, too.

To give you a relatively benign example, as I understand it it Muslims (or many of them) speak of people as “reverting” to Islam rather than “converting” – since they believe everyone is in a sense originally and naturally a Muslim. I don’t think that means that means non-Muslims have a duty to use the word “revert” – as though they themselves share Muslim beliefs. I don’t know whether any Muslims say they do have such a duty – but I think they’d be wrong to. It’d be a minor example of intolerance towards non-Muslims.

To give another example, there’s a city in India I call Bombay. That’s not because I think Britain should still run India, but because I’m not sure its renaming was quite the unproblematic gesture of post-colonial liberation that many people assume. I’m happy to be persuaded I’m wrong.

So it’s not just a simple question of adopting a certain form of language to refer to people or things just because some people, even the people being referred to, prefer it. I don’t think that’s necessarily and obviously always the right thing to do.

In this specific case, as I say, I’ll think about it. But I have to say I don’t feel a strong urge to abandon the noun “transsexual” at the moment. This is for a couple of reasons.

First, although I understand your point, and I’m open to persuasion, I’m not sure I’m persuaded. I think (with respect) that to see it as “dehumanising and marginalising” is an overreaction, and disproportionate.

Second, over the last few days I think we’ve seen a writer (whose feelings are as important as anyone’s) at least feel bullied, another censored, and the views of many supporters of transsexual rights censored too, all as a result, originally, of some people’s expressions of offence even at the mention of a “Brazilian transsexual” (not even, simply, to the use of the noun). It’s been, in my view, a really bad week for transsexual rights – and not because Suzanne Moore used “transsexual” as a noun.

Against that background, I think it would be a betrayal of free speech, and an acceptance of the politics of offence, for me now to do anything that implied I thought Suzanne Moore’s use of that noun was wrong.

I’ll think about this again in a while, when the case against “transsexual” as a noun is less associated with feelings of bullying, and with censorship.

14 Charlotte January 16, 2013 at 14:01

At the risk of speaking out of turn to someone who is infinitely more qualified than I am, if discrete jewellery is permitted as company policy, should a company seriously have the right to proscribe a design it does not like, unless it can be seen as incitement to hatred (eg a swastika)? Is zealous secularism any different in principle to the religious conviction of the complainant in this case? Should we not therefore be upholding freedom of expression? And I am not a religious person myself.

15 Neil January 16, 2013 at 14:34

What interested me in the case was the acceptance that visibly wearing the cross was a protected manifestation of faith (para 89). This is because “bearing witness in words and deeds is bound up with the existence of religious convictions” (para 80). The manifestation is not limited to acts which form part of the practice of the religion, but must be “intimately linked” to it (para 82).

So how does this translate to belief systems such as atheism, or skepticism? Is it a manifestation of those belief systems to “bear witness” by wearing a symbol of that belief system? Because if not, it seems that a line has been drawn between the two belief systems.

16 Carl Gardner January 16, 2013 at 14:37

Hi, Charlotte!

It’s important to make the point that that wasn’t the case here – as I understand it Nadia Eweida fell foul of a general policy against visible jewellery. So the actual question was whether a design the employee likes should be exempt from any policy just because it was religious.

I think I probably have to say “yes”, ultimately, but I hope it doesn’t seem evasive if I answer like this. I don’t like the increasing tendency for employers to think they own us, private life, political views and all – but I don’t think it should simply be illegal for an employer to create and maintain a secular ethos and workspace, as far as possible free of religion. Diversity seems to me to require that that be possible; not to ban it, or require it in all workplaces.

I think how this is worked out in any workplace should depend on a combination of things: what the employer thinks, what unions think, what customers and visitors think, what staff members think, and so on and so on. I don’t like the idea of employers simply enforcing rigid rules without thinking about them.

But I like even less the idea that one member of staff should simply be able to flout the rules that apply to everyone else, and that the employer – and anyone else – should have no say at all. A staff member like that strikes me as quite similar to someone who insisted on smoking in an indoor place where smoking is legal, regardless of anyone else’s feelings – including their host and companions; or like the person who insists on using their mobile phone in the quiet section of a train.

I don’t think that sort of situation is best resolved by an exclusive focus on the smoker’s or phone user’s rights, with no one else’s view having any weight.

To make the parallel closer, I don’t think the phone user should be seen as having a fundamental human right to keep using the phone regardless of the train company policy and other passengers’ feelings as long as (a) they do it quite quietly and (b) the train company can’t prove it’ll lose business it it lets the phone call go on.

There can be “zealous secularism”, and I’m not keen on it. But I think zealous secularism would insist that no religious symbols could ever be worn in any public place, ever. The sort of secularism I support does not want that – but does want secular space to be possible, and for religious believers’ feelings not to be the only feelings that count. By far the greater problem we face is the threat of religious activists who want to abolish the possibility of secular space, and who want their feelings to trump everyone else’s.

17 Charlotte January 16, 2013 at 16:22

Hi Carl,
Thank you for your detailed response. Re the first and in my view main point, if company policy was indeed no jewellery, I disagree absolutely with the ruling, and agree with your charge of gross interference and unnecessary micromanaging on the part of the ECtHR. If a dress code is clearly established and agreed, that should be that and employer should be able to enforce it. You’ve changed my mind on that one.
The workplace should not be viewed as a place to actively promote any religious views, unless it is a church/mosque/synagogue or religious school etc, whose remit is clearly to do this. It should in effect be considered as secular if it does not have a religious mission. However, if someone chooses to wear an item of clothing or a symbol, that does not in my view detract from this notion, unless they are actively and aggressively using it to persuade me of their views. (They should be free to do that in the pub, when I can leave!).They are merely expressing themselves. A wholly secular space, on a par with a religious space, should indeed be possible, I agree with you on that, but I don’t agree that secular rules should be enforced in a workplace, any more than religious rules, unless the institution clearly has a secular mission and all employees accept that.

18 Charles Thompson March 19, 2013 at 12:04

I am happy to read this judgement, As a lawyer I think everybody has right to maintain his religion. I hope this judgement will help more and more people who are facing same problem.

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