Eweida victory is a significant extension of religious rights

Lots of people have picked over the judgement from the European Court of Human Rights on Eweida and others. Opinion is divided, to say the least, on its significance.

Three out of the four applicants lost their cases. From this ruling, we can be reasonably sure that religious rights do not trump those of other protected groups and that employees must comply with an employer’s equality policy. Gary MacFarlane and Lilian Ladele lost their cases on this basis.

Health and safety also trumps religious rights. Although the Court ruled that wearing a  cross around her neck was a manifestation of Shirley Chaplin’s religion, it decided that “the interference with her freedom to manifest her religion” by her employer was justified on health and safety grounds.

A company’s uniform policy and its desire to maintain a corporate image, though, does not justify such interference. There was no evidence that Nadia Eweida’s cross “had any negative impact on British Airways’ brand or image,” said the Court, concluding:

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.

So, to recap, religious rights don’t trump the rights of other protected groups or an employer’s equality policy. Religious rights don’t trump health and safety either. But what about any other employer policies? Here the picture is less clear.

Many commentators think these rulings are reasonable and won’t have much impact. Even the National Secular Society was broadly positive:

In the case of Eweida, it is a very limited victory which simply means that if employers want to prevent an employee wearing religious symbol for corporate image purposes, they must prove that their image is negatively affected by such manifestations of belief. In the case of Chaplin we are pleased that the court has acknowledged that employers are better placed than the court to decide if jewellery is a health and safety risk and did not support the idea of blanket permission to wear religious symbols in the workplace.

One of its legal advisors, Ronan McRea, said that the Strasbourg ruling would change very little. The Independent’s Jerome Taylor agreed, saying that, on the whole, this was a defeat for the Christian lobby and that Nadia Eweida had only won her case because of BA’s U-turns and inconsistency.

So nothing for employers to worry about then. Nothing significant has changed.

Or maybe it has…..

Significantly, Nadia Eweida’s victory, and the Court’s comments on Shirley Chaplin’s case, establish that the wearing of religious symbols is a manifestation of religion covered by article 9 of the European Convention on Human Rights. As Carl Gardiner says:

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.

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.

Furthermore, the Strasbourg court has shown itself willing to ignore the UK’s tribunal system.

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.

[T]he 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.

Mrs Markleham agrees:

This is a momentous decision in my view. It will lead to human rights arguments taking a much more prominent role in employment cases on religious freedom. Human rights arguments in this field have hitherto failed because the prevailing orthodoxy at Strasbourg was that, if your employer won’t let you manifest your faith at work you are free to go and manifest it elsewhere, even to the extent of getting another job with a more accommodating employer. As such, arguments based on article 9 of the ECHR have always taken a back seat to the far more useful law of indirect discrimination which is now set out in the Equality Act 2010. Indirect discrimination law says that if your employer’s practices put you and other people of your belief at a disadvantage, they must change their ways unless they can justify the practice by showing it is a proportionate means of achieving a legitimate aim.

This decision turns the tables, and makes human rights law stronger than indirect discrimination law (as currently interpreted by the courts). Under the Eweida ruling, if an employer prevents an employee manifesting their religious belief, the employer must justify it. You are “manifesting” your belief if there is “a sufficiently close and direct nexus between the act and the underlying belief”. Your actions do not have to be required or mandated by the religion in question.

So if an employee decides that a religious symbol is a manifestation of his or her religion, then it is, regardless of what the rules of that religion dictate. In effect, what counts as a manifestation of religion is a personal choice. It is then the employer’s responsibility to explain why the employee can’t manifest their religion in the way they choose.

As Louise Taft says, this ruling will “significantly widen the pool of potential claimants for discrimination”.

Hard on the heels of the cross-wearers will almost inevitably be claims from those wanting to wear the niqab or burka. Those with tattoos, piercings and who knows what other symbols and adornments may follow. And is manifesting one’s religion limited to symbols? What about the provision of prayer rooms and time off to pray? After this ruling, what else is covered by Article 9? If I can say that my deeply held belief underpins my actions, I can justify all sorts of behaviour. Is it then up to my employer to show why it can’t be accommodated?

Mrs Markleham continues:

[A]rguably any interference with the way you manifest your own personal beliefs, regardless of whether anyone else feels the same way, triggers article 9 and the employer should be required to show justification.

Why aren’t Conservatives kicking up more of a fuss about this? After all, they are usually the first to complain about restrictive employment laws and “meddling” by the ECHR. Here’s Carl again:

By rights, this should be one of the most controversial cases recently decided by Strasbourg against the UK. [My emphasis.] 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.

If this case had been brought by a Muslim woman claiming the right to wear the niqab, Conservative MPs would be railing against European judicial imperialism and the Daily Mail would be screaming about Eurocrat-imposed political correctness. Or something like that. Yet Nadia Eweida’s victory will have exactly the same effect. No doubt, when a Muslim woman does bring a case, as one surely will, the same people who supported Nadia Eweida will foam with rage, either ignoring, or not realising, that the verdict they hailed brought religious rights to everyone else too.

On the day the judgement was released, employment lawyer Sean Jones commented:

Indeed so. Lots of new arguments, lots of new slants on religions or beliefs and lots of new court cases, many of them brought by people who Conservatives won’t like.

Nadia Eweida’s victory has brought about a significant extension of religious rights in the workplace. Given the propensity some people have for feeling aggrieved, it all spells trouble.

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9 Responses to Eweida victory is a significant extension of religious rights

  1. sadbutmadlad says:

    You say that Eweida’s case opens the door to Muslims wanting to wear their symbols of religion. Isn’t the reason why most people are welcoming her victory is because Muslims and Hindus already get away with it but not Christians. If anything it puts Christianity on level with Islam and Hindu.

  2. Needs2Cash says:

    Wedding rings are the most common symbols of faith. In now seems to me that, just like wedding rings, any symbol that does not cause a hazard to the wearer or others can be worn. Why are we silent on wedding rings when we discuss symbols of faith?

  3. John D says:

    Wedding rings are not necessarily a symbol of faith. They are exchanged between marital partners to indicate their public status as married people. People marry in registry offices and exchange rings; in the case of these ceremonies, religion may play no role at all.
    The law is partly incomplete anyway, particularly where adherents of Sikhism are concerned. Their adherents are entitled to wear turbans on building sites, where all others are expected to wear helmets. If a Sikh person were to sustain injuries through not wearing protective head wear it is an expectation that they would not be able to sue the building site manager for any compensation. However, I am not aware of any case where this expectation has been proved or established, so – to use a phrase – the jury is still out on this one.
    I was surprised that BA did not make the point that Ms Eweida has a customer facing position in her capacity as a baggage check-in person. If you look at the pictures of her, her cross is on a metal ring around her neck. That metal ring could provide purchase for any irate customer who wants to pull her face down on to the desk at which she works. It seems to me to be a matter of personal safety of any employee that BA should have compelled Ms Eweida not to wear her collar ring and bling on duty.
    This one small “victory” of Ms Eweida may well turn out to be pyrrhic. If I were an employer, I would now include questions on my application forms for job applicants to complete, in which they would have to state any particular religious needs or beliefs they may have which will require accommodation at work. If they do not make any such statement at the time of applying for the position, then the employer will be legally covered if they subsequently make any such demands. Overall, of course, completion of this section of the job application form will signal that the applicant is probably going to be problematical and employers will simply not employ potential religious problem employees.

  4. This is a genuine question:

    Given that many people have ‘customer-facing’ jobs, what will happen when – as certainly will occur – a customer or client says they can’t accept the help / advice of a worker, perhaps one in a critical service, because they are un-nerved or otherwise disturbed by the religious symbol the service-provider is displaying?

    (I recall a friend who complained bitterly, and probably correctly, from the receiving end when a social services person began a faith-related way of trying to resolve her problem…. It made sense to the ‘believer’ but seemed absolutely irrelevant and worse to my desperately beleaguered friend.)

    Will we end up with some people electing to wear, as a ‘personal belief’ choice, badges which declare themselves agnostic / of no faith, so potential clients can be assured there will be no – or can knowingly avoid – religious underpinning of advice / help / service?

    Do clients with no faith have ‘rights’ in alignment with religious people?

    As I say, these are is genuine questions; I truly don’t know what to think.
    Thanks

  5. John D says:

    State-provided services should be capable of being provided in a secular way. As long as these services are provided by actual government departments and offices, I foresee no problems arising but there is a serious question if these services are outsourced and religious organisations end up being awarded contracts to provide these services. In the US, religious organisations have attempted to blackmail federal and state governments whenever policies are proposed which they do not like by threatening to withdraw services they are providing which local communities have come to rely upon. The same could happen here. I do not think the vast majority of people in this country realise that there is a deliberate and targeted campaign by ultra-religionists to change our way of life in this country. Many of these American-funded groups employ legal activism – such as these cases – in an effort to get the law changed so that they may once again enjoy the privileges they formerly held in the medieval era of this country. There has been talk of restoring religious courts recently. How do people feel about that prospect?

    • Needs2Cash says:

      We must continue to separate state from religion. Okay, Britain has a way to go in fully separating the two.

      But what went wrong in the USA? We have this principle enshrined in our Constitution. Please name one of the “American-funded Groups” so we can further research the threat both sides of the Atlantic.

      Nothing stops people of faith being secularist in their professional delivery of public services. Why would a symbol of their faith be a problem for anyone else?

      • John D says:

        It has been suggested – paradoxically – that the situation in the USA has been caused by the apparent division between church and state but their having such a ferociously keen market economy that religion really is big multi-billion dollar business, which creates conditions of ferocious competition between competing religious organisations.
        If you want some idea as to the sheer numbers of religio-legal organisations in the USA take a look at http://www.naacd.com. Turning to the situation in the UK, see if you can follow up on some of the following:-

        An Observer article “Christian Legal Centre fights more than 50 religious discrimination cases” – Lawyers’ group pursues US tactics against ‘sidelining’ of ‘people with traditional biblical views’ (1 May 2011) [hyperlink: http://www.guardian.co.uk/world/2011/may/01/christianity-rights-colin-atkinson%5D cites Andrea Williams, director of the Christian Legal Centre, and provides the following information:-

        Questions have been asked about from where the centre – and its sister organisation, Christian Concern For Our Nation – obtain funding. Accounts show both organisations have little in the way of income.

        Williams said all of the centre’s work was done on a pro bono basis by committed Christian lawyers and that what money it had came in small donations from more than 30,000 people who received its regular email updates. “We never ask clients for money,” she said. “Very often they fear losing their case and having to pay the costs of the other side. Part of our ministry is to ensure they are not burdened with that.”

        Close observers of the centre believe it is adopting the tactics of wealthy US evangelical groups, notably the powerful Alliance Defence Fund, which, through its Blackstone Legal Fellowship, trains an army of Christian lawyers to defend religious freedom “through strategy, training, funding and direct litigation”.

        The ADF, which according to filings had an income of almost $40m last year, is funded by prominent benefactors including Erik Prince, founder of the Blackwater private security giant, the Covenant Foundation, which is financed by a leading member of the Texas Christian right, James Leininger, and the Bolthouse Foundation, a charity that rejects evolution, insisting “man was created by a direct act of God in His image, not from previously existing creatures”.

        The ADF has joined forces with the Christian Legal Centre and Christian Concern For Our Nation to launch the Wilberforce Academy in the UK, which aims to train delegates “for servant-hearted, Christ-centred leadership in public life” having equipped them “with a robust biblical framework that guides their thinking, prayers and activity in addressing the issues facing our society”. Several of its delegates have already gone on to work for the legal centre and Christian Concern.

        It is now a little dated but see Observer article ‘Secret Christian donors bankroll Tories’ [hyperlink http://www.guardian.co.uk/world/2010/may/02/secret-christian-donors-bankroll-tories%5D where it states inter alia ‘Lowering the abortion limit is one of the key aims of Dorries who, as the New Statesman discovered, has received support and briefings from Christian Concern For Our Nation. The little known but well organised group claims it “exists to serve the Church by providing information to enable Christians to stand up publicly against a tide of unchristian legal and political changes in the United Kingdom”.

        Accounts reveal it received more than £265,000 in gifts and donations last year.

        Its sister organisation, the Christian Legal Centre, backed the case of Gary McFarlane, the relationships counsellor, who was sacked by the Relate Relationship organisation after he refused to provide sexual counselling to homosexual couples because of his Christian beliefs, and of Nadia Eweida, the BA employee who was prevented from wearing a small cross on her necklace.

        The CLC runs a number of initiatives with the Alliance Defence Fund, a hugely powerful US Christian group that sponsors many Republican politicians and holds a “Day of Truth” in US cities to show “that God created our sexuality to be expressed between a man and a woman married to one another.”

        There is interesting case study, involving the Green Party and Christian Legal Centre at http://blog.scrapperduncan.com/category/religion/christian-legal-centre/ which is worth reading in full.

        For an up-to-date picture of the situation in the UK, see http://www.independent.co.uk/news/uk/politics/gay-marriage-the-fight-is-on-but-who-is-calling-the-shots-7624915.html.

        I don’t know about you but these ideological religious extremists backed by incredibly wealthy and powerful business and legal interests concern me greatly. They want something from all of us and it can only come at our expense. To get some insight into the thinking of one of the more prominent evangelist lawyers, see http://www.independent.co.uk/news/media/dispatches-making-a-giant-leap-of-faith-830550.html – it makes for literally amazing reading.

  6. Maybe insisting on demonstrating one’s faith at work suggests that it will be an influence on how one responds to situations at work….? Or maybe sometimes it makes some others feel awkward, which could be a problem if they’re also vulnerable to the views or actions of the faith-demonstrating person?

    I’m still unclear in my mind about where the boundaries lie, as I’m sure others must be as well.

    Is it true btw that Ms Eweida is specifically a Coptic Christian? Absolutely nothing ‘wrong’ of course in that of itself, there are many different brands of Christianity, and of all other faiths, but I suspect different faith ‘brands’ come from different perspectives and have themselves different views about how publicly visible they should be about their beliefs (if not in a formal ‘faith role’, e.g. a paid minister of that religion)? Does anyone know more about this, either from personal direct experience or from observation / study? In what situations might it be significant, if it is? This may or may not be relevant to the discussion, depending on how we view the ‘secular state’….?

    Where does tolerance lie in all this, and must it be reciprocal at least in public life? (This could be an interesting question for the House of Lords….?!)

    And please let me stress again that these are real, genuine questions from my perspective:

    I’m puzzled about how to think about this whole thing, it’s very complex. Is “religious freedom” different from “freedom to insist that others know what you believe, whether they want to or not” (assuming the absence of serious risk-vulnerable situations such as the health care considerations where the Euro Court found against this sort of faith-demonstration).

    I think this debate will go on for years yet, but we do all need to start thinking more clearly about what freedoms are right for what situations, perhaps. My freedom may be your repression, or the converse. Presumably resolving these issues is what the E.C. is trying to move towards….

  7. John D says:

    In response to the heading of this article – and after some reflection – this judgment has nothing to do with so-called “religious” rights. It is about the uniform policy of an employer. BA initially insisted on their employees all looking the same, which is why they acted when Ms Eweida insisted on deviating from their uniform code. Ultimately, BA changed the code – but Ms Eweida (and the so-called Christian Legal Centre) – insisted on having their “day in court”. The judges ruled that the uniform code of BA was unreasonable and that Ms Eweida could wear any bling she wanted, provided it did not contravene health and safety requirements (as in the case of Ms Chaplin).
    Ms Eweida is originally from Egypt and is a Coptic Christian. The other two claimants also lost their cases – along with Ms Chaplin – because their personal beliefs are not an acceptable basis to refuse to provide services they have been employed to provide. This raises very interesting points as there have been cases where medical nurses have tried unsuccessfully to refuse to participate in pregnancy termination on the basis of their personal beliefs. There was also a recent consultation on whether or not pharmacists should be allowed not to dispense items like the pill and morning-after pills if they have a personal belief against such courses of medication, even though the prescriptions have been legally issued by medically qualified general practitioners.
    One aspect which has not come out of the various legal reports is the sheer unpleasantness some of these religious diehards have created in their work places. They have created climates of tension and stress for the fellow workers and managers just so they can – so to speak – wear their beliefs on their sleeves or round their necks or wherever. They strike me as thoroughly nasty individuals who are probably motivated by greed, which is why Ms Eweida requested £30,000 in compensation, though the judges awarded her only 2,000 Euros (about £1,600) and costs. All the other claimants received nothing so their legal costs – possibly just under £100,000 – will, I hope be met by them or the Christian Legal Centre. If they continue losing cases at this rate, they should eventually bankrupt themselves and then stop bringing these foolish court cases, which even some church members are beginning to question. On the question of tolerance, it needs to be pointed out that no one forced any of the claimants to bring their cases. It was they – encouraged – by the Christian Legal Centre – who brought the cases to court for judgment. It is clear that it is they who are the intolerant ones. In each of the cases, employers tried to accommodate their beliefs, offering them alternative positions in the same organisation or just asking them to fulfil their actual contracts of employment but these ideologically motivated employees decided not to accept any compromise alternatives but insisted on taking their employers to employment tribunals, the English courts and – finally – the European Court of Human Rights. They could have stopped these cases at any time of their own choosing but they did not do so. It is they who forced this situation to the conclusion we now see, where 3 out their 4 cases were lost and the one winning case was awarded compensation of a relatively minimal amount. All their ridiculous claims of being subjected to religious “persecution” have been largely proven to be unfounded – as any truly rational person could have predicted. They are – no doubt – still revelling in their “victimhood”.

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