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:
— Sean Jones (@seanjones11kbw) January 15, 2013
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.