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Lawyer: No discrimination if employees can resign

07 September 2012

By Gavin Drake in Strasbourg


A day in court: Nadia Eweida waits for her hearing at the European Court of Human Rights in Strasbourg on Tuesday

A day in court: Nadia Eweida waits for her hearing at the European Court of Human Rights in Strasbourg on Tuesday

CHRISTIANS cannot claim that they have suffered religious discrimination at work if they have the freedom to resign and look for another job, a British-government lawyer told the European Court of Human Rights this week.

James Eadie QC made his comments as he outlined the Government's position in four cases: those of Nadia Eweida ( News, 11 January 2008) and Shirley Chaplin ( News, 10 April 2010), who claim that they lost their jobs with British Airways (BA) and the Royal Devon and Exeter NHS Trust respectively, over their refusal to remove a cross or crucifix; Lillian Ladele, a registrar with the London Borough of Islington, who objected to being required to perform civil-partnership ceremonies (News, 9 January 2009); and Gary McFarlane ( News, 4 December 2009), who was dismissed from his position as a counsellor with the Avon branch of Relate, after his supervisors said that his religious beliefs would prevent him offering psychosexual counselling to same-sex couples ( News, 31 August).

Mr Eadie said: "In a free and democratic society, everybody has the right to express and manifest their beliefs, including to display religious symbols or to live out their beliefs on family values motivated by the teaching of faiths; but these are not absolute rights or rights without limits."

He argued: "If an employer requires or prohibits conduct while at work that individual employees consider is inconsistent with their religious beliefs, there is no interference with Article Nine [of the European Convention on Human Rights] where they can obtain alternative employment in which they can practise their religion as they wish. . .

"All the applicants were able to manifest their religious belief in many ways outside the professional sphere," he said. "The court's jurisprudence is clear that employees are free to resign if they consider that the requirements of their employment are incompatible with their religious beliefs."

This ability to resign, he argued, "guarantees freedom of religion".

Dinah Rose QC, representing Ms Ladele, challenged the Government's position, saying it justified state-sponsored anti-Semitism: "The logical implication of the Government's assertion is the rather startling one that a state employer could have a policy of refusing to employ practising Jews and say that was not a violation if other employers were prepared to employ them."

James Dingemans QC, representing Ms Eweida, said: "There is nothing in the wording of Article Nine which justifies the Government's approach that [your rights] stop the moment you cross the threshold of work. If 80 per cent of our lives is spent working, what value is a right that ceases the moment you cross the threshold?"

The Government also argued that Christians had no right to wear a cross or crucifix, saying that the Convention applied only to acts that were part of a "scriptural command or teaching".

"There was no question about the importance of the cross as a Christian symbol," Mr Eadie argued, but "not every act or behaviour falls within the protective sphere of Article Nine. Acts are protected only if they are a practice; and only if the practice is generally recognised as such by the religion concerned."

When challenged by Judge Nicolas Bratza, one of eight human-rights judges hearing the cases, Mr Eadie said that an applicant need not establish that the action was a formal requirement; merely that it was a "generally accepted form of the religion".

Mr Dingemans told the court that BA's policy at the time was that religious items could be worn only if they were a "mandatory scriptural requirement". "BA considered that that condition was fulfilled in the case of items such as the hijab or turban, but was not fulfilled in the case of the cross.

"In that latter respect, Ms Eweida has never sought to suggest that wearing a cross, visibly, is a mandatory scriptural requirement, but it was, nevertheless, of great importance for her to be able to wear it, visibly, and she found the requirement to conceal it, while sitting next to colleagues allowed to wear other religious symbols, an insult to her Christianity and to her."

The judges will consider the numerous submissions, including formal written interventions from the Bishops of Chester and of Blackburn; the former Archbishop of Canterbury, Lord Carey; and a retired Bishop of Rochester, Dr Michael Nazir-Ali. Submissions were also made by the Equalities and Human Rights Commission, and the human-rights charity Liberty.

Judgment is not expected in the cases for several months.

Responses to the cases. The Prime Minister has been accused of hypocrisy over the Government's stance. Mr Cameron has publicly offered his support for the four, describing the wearing of a cross as a "vital religious freedom". He told Parliament in July: "If it turns out that the law has the intention as it has come out in this case, we will change the law, and make clear that people can wear religious emblems at work."

Speaking on Tuesday, the director of the Christian Legal Centre, Andrea Minichiello Williams, a member of the General Synod, said: "The Government's double-standards in their handling of these four cases has been astonishing. The Prime Minister . . . has been asked to back up the statements he has made in public. . . He has failed dismally," she said.

The executive director of the National Secular Society, Keith Porteous Wood, said: "Any further accommodation of religious conscience in UK equality law would create a damaging hierarchy of rights, with religion trumping all. Any change to the law to increase religious accommodation stands the risk of seriously undermining UK equality law."

The chief executive of the British Humanist Association, Andrew Copson, speaking on Sky News, said that the cases were the result of an "increasingly strident Christian lobby".

"Cases like this, which ought to be sorted out in a sensible common-sense way on the ground, are being used to whip up a narrative of persecution, which is really a fig-leaf for an attempt to increase the visibility of privilege of religion in public life."


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