CHRISTIANS have a fundamental right to manifest their belief in
the workplace, the European Court of Human Rights has ruled, in a
landmark judgment in Strasbourg on Tuesday. Also, national courts
must ensure that a "fair balance" is struck when asked to
adjudicate claims involving competing rights.
The European Court has rejected the British Government's
contention that no discrimination existed if employees had the
right to resign and seek alternative employment (
News, 7 September 2012).
Instead, it states: "Given the importance in a democratic
society of freedom of religion, the Court considers that, where an
individual complains of a restriction on freedom of religion in the
workplace, rather than holding that the possibility of changing job
would negate any interference with the right, the better approach
would be to weigh that possibility in the overall balance when
considering whether or not the restriction was proportionate."
The Court also rules that people alleging an infringement of
their right to manifest their belief are not required to show that
the particular act - such as wearing a cross - is the "fulfilment
of a duty mandated by the religion in question. . .
"In order to count as a 'manifestation' . . . the act in
question must be intimately linked to the religion or belief. An
example would be an act of worship or devotion which forms part of
the practice of a religion or belief in a generally recognised
form. However, the manifestation of religion or belief is not
limited to such acts; the existence of a sufficiently close and
direct nexus between the act and the underlying belief must be
determined on the facts of each case."
The judges have ruled by five to two that the English courts did
not strike a "fair balance" when they rejected
religious-discrimination claims from Nadia Eweida (above),
a check-in clerk who was banned by British Airways from wearing a
small cross at work.
The Court says that Ms Eweida's desire to wear a visible cross
was a "manifestation of her religious belief" and, as such, was a
"fundamental right" protected by Article 9 of the European
Convention on Human Rights.
"On one side of the scales was Ms Eweida's desire to manifest
her religious belief. . . This is a fundamental right: because a
healthy democratic society needs to tolerate and sustain pluralism
and diversity; but also because of the value to an individual who
has made religion a central tenet of his or her life to be able to
communicate that belief to others," the judges say.
"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 awards Ms Eweida damages of €2000 (£1660),
with €30,000 (£25,000) costs.
Four cases of alleged religious discrimination were presented to
the European Court. The other three failed to impress the majority
of the judges. In the case of Shirley Chaplin, a nurse, the Court
says that the prohibition on wearing crosses as a necklace was
imposed by the Royal Devon & Exeter NHS Foundation Trust "to
reduce the risk of injury when handling patients. . .
"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
The Court has not ruled on whether the hospital's decision was
proportionate, however. "Hospital managers were better placed to
make decisions about clinical safety than a court."
In the two other linked cases, the Court has ruled against
Lillian Ladele, a former Islington registrar dismissed for refusing
to conduct civil partnerships; and Gary McFarlane, a counsellor for
Relate, dismissed over concerns about his attitude towards the
provision of psycho-sexual therapy to same-sex couples.
The judges say that the policies of both employers, Islington
Borough Council and Relate, were pursuing a "legitimate aim" of
preventing discrimination towards same-sex couples.
As with the Chaplin case, the European Court has not ruled
whether the domestic courts had came to the right conclusion in
weighing the competing rights. It says: "Same-sex couples are in a
relevantly similar situation to different-sex couples as regards
their need for legal recognition and protection of their
relationship, although since practice in this regard is still
evolving across Europe. The contracting states enjoy a wide margin
of appreciation as to the way in which this is achieved within the
domestic legal order."
In both cases, it says, the "wide margin of appreciation"
available to the courts was not exceeded.
Ms Chaplin, Ms Ladele, and Mr McFarlane intend to appeal to the
Court's Grand Chamber.
"It's a great shame that justice has not been done and common
sense has not prevailed," said Andrea Williams, director of the
Christian Legal Centre, which had supported Gary McFarlane. "The
equality legislation in the United Kingdom has led to some people
being more equal than others. This judgment further entrenches this
Mike Judge, of the Christian Institute, which supported Ms
Ladele's case, said: "Obviously, we are disappointed to have lost
by a majority decision, but we are encouraged that two judges
thought we should have won."
The Government had opposed all four cases, but writing on
Twitter after the judgment was delivered on Tuesday morning, the
Prime Minister said: "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, said: "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
Question of the Week: Would you wear a visible
TWO judges, Nebojša Vučinić of Montenegro and Vincent De
Gaetano of Malta, issued a dissenting judgment in the case of
Lillian Ladele. They said that "a combination of back-stabbing by
her colleagues and the blinkered political correctness of the
Borough of Islington (which clearly favoured 'gay rights' over
fundamental human rights) eventually led to her
They describe her treatment as "discriminatory", and
said: "Given the cogency, seriousness, cohesion, and importance of
her conscientious objection . . . it was incumbent upon the local
authority to treat her differently from those registrars who had no
conscientious objection to officiating at same-sex unions -
something which clearly could have been achieved without detriment
to the overall services provided by the Borough, including those
services provided by registrars, as evidenced by the experience of
other local authorities.
"Instead of practising the tolerance and the 'dignity
for all' it preached, the Borough of Islington pursued the
doctrinaire line, the road of obsessive political correctness. It
effectively sought to force the applicant to act against her
conscience or face the extreme penalty of dismissal - something
which . . . cannot be deemed necessary in a democratic