Crosses to bear

The European Court of Human Rights has not had a good press of late. Its decisions in the cases of Abu Hamza’s extradition, or the issue of prisoners being allowed to vote, have divided political opinion and lead to calls to withdraw from the Court altogether, replacing it with a new UK Bill of Rights. High words have been exchanged about the sovereignty of parliament and the interference of this foreign court.

Its latest decisions, on 15 January, deciding a string of cases involving freedom of religious expression, may not sooth these rumblings, but in fact the majority of people – perhaps for different reasons – may well agree with the outcomes, and think that the Court has done a fairly sensible job this time. Previous protests have tended to come from more conservative, pro-Christian and anti-PC corners, who may now find themselves warming somewhat to this foreign and rather PC body.

The leading and perhaps most controversial of the cases concerned Ms Eweida, the British Airways reception staff member, who was dismissed for insisting on displaying a small gold cross at work. The attitude of the UK courts to this issue was essentially to ask the reason of the employer - in this case its uniform policy – ask if the policy was broadly reasonable and not intended to discriminate, and if so, to approve it. The relative importance of the competing rights was not really analysed in any detail.

The case is in fact more difficult than that. BA would not want to cause offence to any customers. Those of other religions (or none) might well have been put off by such displays, even if they did not openly complain. Equally, for Ms Eweida, this was a point of principle. Why she should be obliged to leave her religion at home each day when she set off for work?

By five votes to two, the European Court of Human Rights agreed with her. They decided that the UK Court of Appeal failed to ensure that her rights under Article 9 (freedom of religion) were protected. In particular it held that the Court of Appeal had given too much weight to BA’s uniform policy.

Article 9 protection of freedom of religion encompasses the freedom to manifest religious belief - it is not necessary to prove that wearing a cross was a religious requirement. But, said the UK government, she could always have resigned and got a job elsewhere, so there was really no interference with her religious freedom. The Court rejected this. Maybe she could, but that was all part of the balancing exercise. That balancing exercise is fundamental. Here was an important right in a democratic society to freedom of religion, against which they had to weigh up whether the restriction imposed by BA was proportionate.

In this case there was no evidence that other employees wearing religious clothing, such as turbans and hijabs, had any negative impact on BA’s brand or image. And the fact that BA subsequently allowed visible religious jewellery to be worn showed that the previous ban was not crucially important, a conclusion that many would find convincing.

The Court also heard the cases of three other Christians complaining of Article 9 breaches. The first of these was a nurse, Ms Chaplin, who also complained of a uniform policy that prevented her wearing a cross above her uniform. In this case however, the reason for the rule was, inevitably, health and safety, and this was held to justify the interference with her religious expression. How thin the line is between one case and the other, but again many will agree that it is one thing for airport check-in staff to flourish a necklace, and another for a nurse in a hospital, where hair has to be tidied away and even a wrist-watch has traditionally been frowned on.

In the other two cases, Ms Ladele was a registrar who was dismissed from her job for refusing to carry out civil partnerships for gay couples and Mr McFarlane was a relationship counsellor who was dismissed for being unwilling to provide sexual therapy to gay clients. In both cases the Court had little sympathy. Their employer were not insisting on these rules just to protect their image, or even for health and safety, but in order to ensure that they did not discriminate against others – and incidentally break the law.

Some areas are too sensitive even for the European Court of Human Rights, and so no disquisition took place into why the claimants’ religion lead them to this aversion to gay couples; it was just accepted that that was the case. Some would argue that this is an aberration of their religion, but perhaps the Court wisely avoided such areas. It based itself instead on the conclusion that the national courts had given full weight to the competing claims, and so it was not called on to interfere.

In Mr McFarlane’s case, the Court noted too that he had enrolled on a counseling programme knowing that he might have to deal with gay clients, but by far the most important point was that his employer wanted to avoid discrimination. If there is one clear lesson from these competing and finely balanced claims, it is that this is likely to be regarded as a trump card.

If you wish to discuss any of the issues raised in this article, or any matter relating to employment law please feel free to contact James Twine on 01752 292351 or Eoin Fowell on 01752 292350.

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