Tomorrow the European Court of Human Rights hands down its decision in the case of four UK applicants claiming a breach of their rights under the Convention to manifest their religious beliefs.

Yesterday I set out the bare facts of each of the cases being decided. In this post I am going to look at the key issues that are before the Court. I’m still not making any predictions!

Who is being sued?

Each of the four applicants originally brought discrimination cases against their respective employers – and lost. They now bring their claims to the European Court of Human Rights, but it is important to realise that they are no longer suing their employers. They are not appealing to the ECHR to have their cases overturned – that’s not what the Court is for. Each applicant is claiming that domestic law failed to protect their human rights.   Their claims are therefore being brought against the UK Government for failing to ensure that domestic law complied with the Convention.

Given that, it does seem a little unfair of those supporting the cases to complain that the Government has opposed their claims. The UK Government takes the view that the laws on religious discrimination adequately protect the Convention rights of individuals. It would be a bit surprising if they argued anything else.

Article 9

All four applicants rely on Article 9 of the Convention – here it is:

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.

As far as I am aware no-one is arguing that the applicants were not free to hold their various beliefs; the issue is whether there has been an interference with the right to ‘manifest’ their belief in ‘worship, teaching, practice and observance’.

Manifestation

This is actually a complicated question because the case law of the ECHR has in the past taken quite a restrictive view of what counts as a ‘manifestation’ of a religious belief. In Arrowsmith v UK (a case from 1978 involving a pacifist handing out leaflets urging troops not to go to Northern Ireland) the Court held that not everything motivated or inspired by  religious belief was a manifestation of it. It had to be something that was necessary in order for the individual to practice his or her religion.

This would suggest a difficulty for Eweida and Chaplin in particular – both of whom accept that wearing a cross is not a requirement of their religion. However the Equality Commission has intervened to argue that something that is genuinely motivated by a religious belief and which ‘attains a certain level of cogency and seriousness and is not unreasonable’  should be protected. They quote more recent case law suggesting that the Court has from time to time applied this wider approach.

It is in this context that the UK Government argued that wearing a cross is not a manifestation of the applicants’ religious beliefs. That is a perfectly reasonable point for them to make once you realise that they are arguing about a technical term as it has been defined by the Court.

So the first big issue for the Court to decide is whether to take the wider view of ‘manifestation’ argued for by the Commission or the narrower view argued for by the UK Government.

Interference

Assuming the applicants clear that hurdle, the next question will be whether being dismissed (or otherwise forced out of a role) is an interference with the freedom to manifest a religious belief. After all, no-one was stopping Eweida or Chaplin from wearing a cross or crucifix, and no-one was forcing Ladele to conduct civil partnerships or McFarlane to give sexual therapy to gay couples. In each case the employee was free to walk away from the job and find more congenial employment elsewhere. If that seems harsh, remember this is human rights law we are talking about – not employment law. The issue is not whether the applicants have been treated fairly by their employer but whether their human rights have been breached.

The case law of the ECHR gives some support to the idea that there is no breach of human rights in the workplace if an employee is free to go and work elsewhere. Again the Equality Commission points to more recent cases taking a wider approach. This case is a good opportunity for the Court to supply some clarity

The second big issue then, is whether and in what circumstances a restriction imposed by an employer as part of the contract of employment can be a breach of Article 9 if the employee has voluntarily entered into such a contract and is free to leave the employment and work elsewhere.

Justification

If the Applicants make it through the first two issues, then they have one more hurdle to clear. Article 9.2 allows an interference in the right to manifest religious beliefs provided that such an interference is ‘necessary in a democratic society… [to protect] the rights and freedoms of others’. In Ladele and McFarlane the justification argument is clear – the UK will argue that the employer was seeking to avoid discrimination based on sexual orientation. In Chaplin the justification is based on health and safety and the danger presented to elderly patients by a necklace worn around a nurse’s neck. In Eweida, the justification is harder to find – that case may turn entirely on the issues of ‘manifestaton’ and ‘interference’.

The third big issue is whether, if any of the applicants have suffered an interference with their right to manifest a religious belief, whether such interference was ‘necessary in a democratic society’ .

Discrimination – Article 14

All four applicants also rely on Article 14 of the Convention:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

It is well established that this Article does not provide a general free-standing right not to be discriminated against – but it does guarantee non-discrimination in the areas covered by the Convention. If the applicants can show that their situations were covered by Article 9 then they may be able to argue that the domestic courts should have upheld their indirect discrimination claims under Article 14. In both Chaplin and Eweida the claims were dismissed because the applicants failed to show that the employer’s practice caused a disadvantage to an identifiable group. It is possible that the Court will rule that a different approach is needed that focuses on the effect of the practice on an individual. The Court may also rule on the standard of justification to be applied.

The fourth big issue is whether the Applicants should have succeeded in their indirect discrimination claims, given the effect of Article 14. If the answer is yes then this has the potential to create a two-tier discrimination system with a different test applying for discrimination cases involving religion and belief and other grounds, such as sex and race, which are not covered by the Convention.