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It was unfair to ban worker’s cross, says European Court

18 January 2013

PA

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 Eweida."

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 mind-set."

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 rule."

Press

Question of the Week: Would you wear a visible cross?

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 dismissal."

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 society."

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