By Carl Gardner,
Barrister, former UK government lawyer, London - United Kingdom
Barrister, former UK government lawyer, London - United Kingdom
Nadia Eweida has succeeded in her claim that the UK breached her right to manifest her religion under article 9 of the European Convention on Human Rights. Readers may remember that she worked for British Airways, and refused to abide by its uniform policy, insisting on wearing a cross visible to customers. By a majority of five to two (the dissenters including the Court’s British former President, Sir Nicolas Bratza), the judges of the European Court of Human Rights found that the English court that dismissed her religious discrimination and human rights claim at national level, the Court of Appeal, gave too much weight to BA’s corporate aims and not enough to Ms Eweida’s desire to manifest her religion by wearing her cross. In consequence, the UK breached its “positive obligation” to protect her right to manifest her religion.
The National Secular Society has welcomed the judgment - and from a secular point of view it’s important to remember that most of the claims failed. In particular, it seems that the ECtHR will be unsympathetic to those who in effect claim that because of their faith, their public or third sector employer must allow them to discriminate against gay people in providing services. That is a real gain for secular values in Britain and Europe.
But 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. Perhaps even more importantly, the 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. That, though, is an aspect of the case I expect to be largely ignored by those Conservative voices who, in a different type of case involving a different type of claimant, would quickly denounce the interventionism Strasbourg has indulged in here.
The European Court held that Nadia Eweida’s desire to wear a cross at work was a manifestation of her religious belief (para. 89 of the judgment). BA’s refusal for six months to allow her to wear it in a customer-facing role was an interference with her right to manifest that belief (para. 91). The ECtHR accepts (para. 92) that
“it is clear that the legitimacy of the uniform code and the proportionality of the measures taken by British Airways in respect of Ms Eweida were examined in detail”
in the English courts. The Court of Appeal in particular was right (the ECtHR says at paras. 93 and 94 of its judgment) to take into account the fact that the dress code had been in force for years and had caused no problem to Ms Eweida or anyone else; that she simply decided to arrive at work displaying her cross, without waiting for the results of her grievance procedure; that the issue was conscientiously addressed by BA once the complaint had been lodged, and that Ms Eweida was offered an administrative post on identical pay (which she refused).
The Court also says (para. 94) that
“Moreover, in weighing the proportionality of the measures taken by a private company in respect of its employee, the national authorities, in particular the courts, operate within a margin of appreciation.“
Yet in spite of all this, the majority of the Strasbourg judges preferred to substitute their own assessment of proportionality for that of the national court (paras. 94-95):
“Nonetheless, the Court has reached the conclusion in the present case that a fair balance was not struck. On one side of the scales was Ms Eweida’s desire to manifest her religious belief … 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. Ms Eweida’s cross was discreet and cannot have detracted from her professional appearance. There was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image. Moreover, the fact that the company was able to amend the uniform code to allow for the visible wearing of religious symbolic jewellery demonstrates that the earlier prohibition was not of crucial importance …
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, in breach of the positive obligation under Article 9.”
I have to say that I find it hard, reading the Court of Appeal’s judgment, to see where it “accorded too much weight” to BA’s corporate legitimate aims. Strasbourg’s criticism here is somewhat impressionistic – and really just amounts to preferring to take the proportionality decision itself.
As for the specific reasons the ECtHR gives for doing so it plainly ignores the margin of appreciation it said applied in this area. First, it said Ms Eweida’s cross “cannot have detracted from her professional appearance”. But surely an employer and the national court looking at the case were in a better position to decide this.
Secondly, the Strasbourg judges seem to be imposing a requirement on employers to produce evidence that religious symbols negatively affect their business. But how on earth are businesses supposed to produce this evidence, especially since, applying this ruling, they will be at risk even if they simply redeploy staff to a non-public role for a limited period so as to allow research into the effects of their own preferred policies?
In the third element of its reasoning, the Strasbourg court risks elevating the need for an employer to have a legitimate aim in setting staff policies into a requirement than any aim be “of crucial importance”. But how could an employer show its policies were “crucially important”? On this approach, firms’ own judgments about their commercial needs seems to count for very little, if anything.
Finally, taking all these elements together, the UK courts’ margin of appreciation seems to have vanished. Even though the Court of Appeal examined these issues in detail, taking account of the right considerations, and even though it supposedly enjoyed a margin of appreciation, the European Court has simply second-guessed it.
The dissenting judgment of Judges Bratza and Björgvinsson surely has it right (para. 5):
“It is argued in the judgment that too much weight was given by the domestic court to BA’s wish to project a certain corporate image and too little to the applicant’s desire to manifest her religious belief and to be able to communicate that belief to others. We do not think that this does justice to the decision or reasoning of the Court of Appeal. Had the uniform code been stubbornly applied without any regard to the applicant’s repeated requests to be allowed to wear her cross outside her clothing or had her insistence on doing so resulted in her dismissal from employment, we could readily accept that the balance tipped strongly in favour of the applicant. But, as the facts summarised above show, that was not the case. The fact that the company was able ultimately to amend the uniform code to allow for the visible wearing of religious symbols may, as the judgment claims, demonstrate that the earlier prohibition was not “of crucial importance”. It does not, however, begin in our view to demonstrate that it was not of sufficient importance to maintain until the issue was thoroughly examined.”
The majority’s ruling is especially worrying given that in Shirley Chaplin’s case, it was the only the clinical context and the importance of clinical safety that decisively tipped the balance against her (see para. 99 of the judgment).
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. 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.
By rights, this should be one of the most controversial cases recently decided by Strasbourg against the UK. 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.
Before I leave this case I should just add that while I think the dissenting judgment of Judges De Gaetano and Vučinić, who see Lillian Ladele as the victim of
“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)”
is at times amusing, it’s also wrong headed. For these Judges, the difference between Ladele’s case and that of Gary McFarlane is that he joined Relate knowing he’d be required to work with same-sex couples, whereas she began work as a registrar before civil partnerships were recognised. There are three problems with this.
First, it misunderstands the nature of public service, which surely involves an acceptance that the detailed content of public duties evolves as democratic institutions legislate bit by bit for all sorts of social change. Second, if followed, their approach would require employers to spell out in contracts in minute and lengthy detail every possible duty their staff might one day be called on to perform. Any task not specifically foreseen on recruitment could be refused later on religious grounds. Finally, a not insignificant source of social change is the European Court of Human Rights itself – when it makes ground-breaking rulings, for instance that transsexuals can marry in their acquired gender. On the approach of De Gaetano and Vučinić, couldn’t anyone simply ignore Strasbourg rulings on grounds of conscience?