Court of Human Rights delivers common-sense judgment on religious freedom and equal treatment

15 January 2013

Today the European Court of Human Rights recognised that British Airways employee Nadia Eweida was discriminated at work because of her faith. But the Court also rightly maintained that staff must not discriminate against others at work by dismissing two other claims.

Ms Eweida was banned from visibly wearing a cross at work because it breached the airline’s uniform code. She took her case to Strasbourg after it was rejected in Britain at tribunal – a decision later upheld by the Court of Appeal. The European Court ruled that British Airways’ actions breached Articles 9 and 14 of the European Convention on Human Rights – freedom of thought, conscience and religion and non discrimination.

Today’s judgment reads: “The Court considers that the refusal by British Airways between September 2006 and February 2007 to allow the applicant to remain in her post while visibly wearing a cross amounted to an interference with her right to manifest her religion … a fair balance was not struck … this is a fundamental right: because a healthy democratic society needs to tolerate and sustain pluralism and diversity; but also because of the value to an individual who has made religion a central tenet of his or her life to be able to communicate that belief to others.  

“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 … 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.”

However the Court also rejected three other claims – including that of Shirley Chaplin, who refused to remove a cross she wore with her medical uniform. The judgment reads: “… the reason for asking her to remove the cross, namely the protection of health and safety on a hospital ward, was inherently of a greater magnitude than that which applied in respect of Ms Eweida.” Marriage counsellor Gary McFarlane, who was fired for suggesting he might object to helping homosexuals and registrar Lillian Ladele, who refused to carry out same-sex civil partnership ceremonies, also lost their legal actions after the Court concluded that the interference with their freedom to manifest their religion was legitimate and proportionate.

Shami Chakrabarti, Director of Liberty, said:

“Today’s judgment is an excellent result for equal treatment, religious freedom and common sense. Nadia Eweida wasn’t hurting anyone and was perfectly capable of doing her job whilst wearing a small cross. She had just as much a right to express her faith as a Sikh man in a turban or a Muslim woman with a headscarf.

“British courts lost their way in her case and Strasbourg has actually acted more in keeping with our traditions of tolerance. Let’s hope that some of those who threaten to pull out of the ECHR remember this case in the future. However the Court was also right to uphold judgments in other cases that employers can expect staff not to discriminate in the discharge of duties at work.”

Contact: Liberty Press Office on 020 7378 3656 or 07973 831128

NOTES TO EDITORS:

1. For the full European Court of Human Rights judgment, visit: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-115881#{%22itemid%22:[%22001-115881%22]}

2. Article 9 of the European Convention on Human Rights, the right to freedom of thought, conscience and religion, includes:

- the freedom to change religion or belief;
- the freedom to exercise religion or belief publicly or privately, alone or with others;
- the freedom to exercise religion or belief in worship, teaching, practice and observance; and
- the right to have no religion (e.g. to be atheist or agnostic) or to have non-religious beliefs protected (e.g. philosophical beliefs such as pacifism or veganism).

Freedom of religion does not prevent there being a state church, but no one can be forced to join a church, be involved in its activities or pay taxes to a church. The role of the State is to encourage tolerance and all religions or non-religions, if regulated, must be regulated with complete neutrality. The fact that someone could resign to get round a restriction on manifesting his/her religious belief in the workplace does not prevent there being an interference with his/her rights under Article 9. There will be interference if restrictions make it practically difficult or almost impossible to exercise the religion or belief.

Article 9 is a qualified right and as such the freedom to manifest a religion or belief can be limited, so long as the limitation:

- is prescribed by law;
- is necessary and proportionate; and
- pursues a legitimate aim, namely: the interests of public safety; the protection of public order, health or morals; or the protection of the rights and freedoms of others.

3. Article 14 of the European Convention on Human Rights requires that all of the rights and freedoms be protected and applied without discrimination. Article 14 requires there be no discrimination in the application of human rights on any ground, and this includes (but is not exhaustive of) grounds such as: sex; race; colour; language; religion; political or other opinion; national or social origin; association with a national minority; property; birth; or any other status including, for example, sexual orientation or marital status).

Article 14 does not provide for a free-standing right to non-discrimination but requires that all other HRA rights be secured without discrimination.  For Article 14 to apply it does not require that a breach of another right has to be made out, but the facts of the case must at least fall within the ambit of another HRA right.  For example, this means that discrimination in the privacy sphere can only be found where the issue in question is held to engage the right to private life.

Discrimination occurs when a public authority, for no objective or reasonable reason: treats a person less favourably than others in similar situations on the basis of a particular characteristic; fails to treat people differently when they are in significantly different situations; or applies apparently neutral policies in a way that has a disproportionate impact on individuals or groups.

It is not the case that all discrimination is unlawful. However for discriminatory law or treatment to be found to be lawful, weighty and objectively justifiable reasons must be advanced. In determining whether there is an objective or reasonable justification for the measures imposed a public authority needs to demonstrate that the measures were advanced to pursue a legitimate aim and there is a reasonable relationship of proportionality between that aim and the measures applied.  For discrimination to be justified on grounds such as race, sex, nationality, religion or sexual orientation there will need to be particularly strong or serious reasons to justify it.