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British Airways wrong in cross case, says European Court in landmark judgment

15 January 2013


BRITISH courts did not strike a "fair balance" between competing rights when they ruled that British Airways had the right to ban staff from wearing crosses, European judges ruled on Tuesday.

The European Court of Human Rights ruled that the desire of Nadia Eweida (right), an official of the airline's check-in desk, to wear a visible cross was a "manifestation of her religious belief" and, as such, was a "fundamental right" protected by Article Nine of the European Convention of Human Rights.

"On one side of the scales was Ms Eweida's desire to manifest her religious belief," five of the seven judges said in a majority judgment. "On the other side of the scales was the employer's wish to project a certain corporate image. The court considers that, while this aim was undoubtedly legitimate, the domestic courts accorded it too much weight.

"Where there is no evidence of any real encroachment on the interests of others, the domestic courts failed sufficiently to protect [Ms Eweida's] right to manifest her religion."

The Court awarded her damages of €2000 (£1660) with €30,000 (£25,000) costs.

The Court had been asked to adjudicate on four cases of religious discrimination rejected by British courts. The Court took a different view in the case of a nurse, Shirley Chaplin. The prohibition on wearing a cross as a necklace was imposed on her by the Royal Devon and Exeter NHS Foundation Trust "to reduce the risk of injury when handling patients".

The Court said: "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."

The judges said that "hospital managers were better placed to make decisions about clinical safety than a court."

In two other linked cases, the court ruled against former Islington registrar Lillian Ladele, dismissed for refusing to conduct civil partnerships; and Relate counsellor Gary McFarlane, dismissed over concerns about his attitude towards the provision of psycho-sexual therapy to same-sex couples.

In both cases, the judges said that Islington Borough Council and Relate's policies were pursuing a "legitimate aim" of preventing discrimination towards same-sex couples. As a result, there was a "wide margin of appreciation" open to the domestic authorities when weighing the competing rights, which the European judges ruled had not been exceeded.

Reaction to the judgment was swift. Prime Minister David Cameron tweeted: "Delighted that principle of wearing religious symbols at work has been upheld - ppl shouldn't suffer discrimination due to religious beliefs."

The Archbishop of York, Dr Sentamu, welcomed the judgment, saying: "Christians are not obliged to wear a cross but should be free to show their love for and trust in Jesus Christ in this way if they so wish.

"The Equality Act encourages employers to embrace diversity - including people of faith. Whether people can wear a cross or pray with someone should not be something about which courts and tribunals have to rule."

Dr Dave Landrum, director of advocacy for the Evangelical Alliance, warned that the judgment "has shown a hierarchy of rights now exists in UK law". He remarked: "We hope that, in the light of today's decision, employers, public bodies, and courts will seek to understand religious belief better, and build relationships with faith groups to help achieve this. The alternative of a society that is in perpetual legal conflict with itself is both undesirable and unsustainable."

A fuller report will appear in Friday's edition of the Church Times.


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