Eweida & Co: the Decision

Well the judgement is out and you can read it in full here. It’s actually quite readable as these things go.

We will be digesting the meaning and implications of the decision for some time to come. In the meantime, on a first reading, here is what I see as the main findings of the Court on the key issues before it. For the facts in each case, see my previous post

Manifestation

The Court rules that a manifestation of a belief must be ‘initimately’ linked to the religion or belief (para 82). This includes an act or worship or devotion, but is not limited to such acts. There must be a ‘sufficiently close and direct nexus’ between the act the and the belief, but the act need not be required by the belief.

On that basis the Court held that Eweida’s insistence on wearing the cross visibly was a manifestation of her religious belief (para 89) and was therefore protected by Article 9. The same was the case with Chaplin’s insistence on visibly wearing a crucifix (para 97). Ladele had not actually claimed a breach of Article 9 (her case is discussed below under Article 14) but McFarlane had relied on Article 9 and the Court held that his refusal to undertake to counsel gay couples was a manifestation of his religious beliefs and was therefore also protected under Article 9 (para 108).

Interference

The Court declined to hold that the fact that an employee can resign and go elsewhere meant that a condition imposed in employment could not be an interference in the right to manifest a belief (para 83). Rather, it took the view that the ability of the employee to resign was one factor to be taken into account when considering the overall question of proportionality.

The Court ruled that in Eweida’s case, the refusal of British Airways to allow Eweida to visibly wear the cross and stay in her post was an interference with her right to manifest her religious belief (para 91). The same was true of Chaplin (para 97). The issue was therefore whether domestic law provided them with adequate protection

In McFarlane’s case the Court seems to consider the issue of interference as being one and the same as the issue of justification but the clear implication was that his dismissal did amount to an interference.

Justification

The State enjoys a certain ‘margin of appreciation’ in deciding whether and to what extent an interference in a right is necessary. The Court’s task is to determine whether the measures taken at national level are justified in principle and proportionate (para 84).

In Eweida’s case the Court held that the law as interpreted by the domestic courts had failed to strike a fair balance (para 94).  On one side of the scales was Eweida’s right to manifest a religious belief; on the other side of the scales was British Airways’ right to project a certain corporate image. While BA’s aim was legitimate, the domestic courts had attributed too much weight to it. The cross was discreet and did not detract from a professional appearance. There was no evidence that other permitted religious symbols had any negative impact on BA’s brand or image, and the fact that the policy was subsequently changed showed that the requirement was no of crucial importance.

In Chaplin’s case, however, the Court felt that the reason for the interference in her right was ‘inherently of greater magnitude’ than in the case of Eweida (para 99). Health and safety was a field in which the domestic authorities had to be allowed a wide margin of appreciation. Hospital managers were better placed to make decisions about clinical safety than a court. On that basis the Court declined to find any violation of Article 9.

As for McFarlane, the Court held that it was relevant that he knew about the need to comply with an equality policy when he began work and said (para 109):

While the Court does not consider that an individual’s decision to enter into a contract of employment and to undertake responsibilities which he knows will have an impact on his freedom to manifest his religious belief is determinative of the question whether or not there been an interference with Article 9 rights, this is a matter to be weighed in the balance when assessing whether a fair balance was struck.

There was a wide margin of appreciation in deciding where to strike the balance between McFarlane’s rights and the need to protect the rights of others. On balance the Court held there had been no breach of Article 9.

Article 14

The Court stressed that Article 14 has no independent existence.  as it has effect solely in relation to the rights enjoyed under the Convention. However it is autonomous in the sense that it does not depend on an actual breach of a Convention right. It covered both treating people in he same situation differently, but also failing to treat people in different situations differently (para 87). Any differences in treatment had to be proportionate and the state enjoyed a margin of appreciation in determining when differences in treatment could be justified.

Alone of the four applicants, Ladele had framed her case entirely based on Article 14 rather than any breach of Article 9. The Court held that her case fell within the ambit of Article 9 so that Article 14 was applicable. The Court accepted that Islington’s designation of all registrars as civil partnership registrars had a particularly detrimental impact on her because of her religious beliefs. However Islington’s aim in doing so – the provision of a non-discriminatory service – was legitimate (para 105). Crucial in the question of proportionality was the fact that the policy aimed to protect the rights of others whose rights were also protected under the Convention. On balance the Court held that neither Islington nor the domestic courts had exceeded the margin of appreciation and Ladele’s claim under Article 14 failed (para 106).

Since there had been a violation of Article 9 in Eweida’s case the Court saw no reason to consider the impact of Article 14 (para 95). In Chaplin’s case the Court, having found justification under Article 9 held that the considerations relating to discrimination would be broadly the same, and therefore saw no reason to find any violation of Article 14. For McFarlane also the Court held that there had been no breach of Article 14

Result

Chaplin, Ladele and McFarlane all lost heir cases. Eweida won and was awarded her 2,000 Euro in compensation.

As to what all of this actually means? The lesson for employers, I think, is to just try to be reasonable and as long as you can explain why a particular policy is necessary, you’re probably fine. You should try to accommodate religious beliefs in the workplace – but we knew that already.

For lawyers, the case will be picked over for some time to come. In terms of employment law, I suspect that it may have quite an impact on how we look at indirect discrimination cases. Making a coherent whole out of Article 14 and the Equality Act 2010 may be quite a challenge, but now that we have a protected characteristic (religion or belief) that specifically engages a Convention right, the scope of Article 14 will have to be taken into account. The Court of Appeal in Eweida had held that there was no need for BA to justify its policy because Eweida had not shown that the policy caused a disadvantage to others besides herself. That view of indirect discrimination can certainly no longer stand in the context of religion or belief. Whether it can still apply in other protected characteristics is an issue the courts will have to grapple with at some point.

About Darren Newman

Employment law consultant, trainer, writer and anorak
This entry was posted in Uncategorized. Bookmark the permalink.

9 Responses to Eweida & Co: the Decision

  1. pussinska says:

    I’ve read through the judgment and I was impressed by the dissenting opinions in the case of Ms Ladele. She’d been in post for many years, the neighbouring authority had allowed those with conscientious objections to opt out of civil partnerships, and she’d been disciplined following complaints from two intolerant colleagues. Of the four, she is the only one I have sympathy for; the cross wearers were being difficult and as they stated in the dissenting opinion, when Mr McFarlane was appointed to his post he accepted and performed, services for same sex couples.

    • John Anzani says:

      Sorry “..two intolerant colleagues..”? Did they express views that christians [or members of other religions/atheists/agnostics who did not agree with civil partnerships] should not be employed or were otherwise of less worth?

      As I understand the case from reading Darren’s previous posts [and the case itself through judgements in BAILII] colleagues raise a grievance over what they felt was an unfair situation where Ms Chaplin picked and chose which elements of her job to carry out.

      I would have thought that was exactly the sort of complaint that a grievance porcedure was designed to address.

  2. So is it true that religious belief is given a higher precedence in law than other belief?

    For example I once heard of someone who’d left their job because their employer had stared to focus their efforts in the automotive market. The person had strong environmentalist beliefs, but these were not part of a “Religion”. In a way it sounds like Mr McFarlane’s case – but would this case have even reached the ECHR?

    As a non-religious person, do I have fewer rights than a religious person because I cannot claim a religion for any beliefs that I may have, even if those beliefs are just as strongly held as a religious person’s beliefs? That would seem quite unfair.

    • Don’t worry you’re fine. Atheists agnostics and the uninterested are equally protected by Article 9. An absence of belief is as protected as the presence of one.

      As for your friend, a belief in environmentalism can be a belief protected by Article 9 and UK discrimination law but only if it is sufficiently serious and cogent. All a question of fact.

      I don’t think non-believers should find anything to be concerned about in what the ECHR has said today.

      • Thanks 🙂

        I just need to come up with some beliefs that would likely take me to court. I tend to be too easy going 🙂

        This person was willing to change job for his belief – simply because he didn’t want his work to benefit car companies. A very serious belief. I note you mention the possibility of changing job in your posts on this subject, and that this was not seen so relevant – where in the past I expect more people did just change job. Then again, jobs are harder to come by now. It seems challenging to find the right balance for that one.

  3. Pingback: Eweida: what it all means | Mrs Markleham

  4. Pingback: European Court of Human Rights (ECHR): Eweida, Chaplin, Ladele, McFarlane – Judgement Published | eChurch Blog

  5. Pingback: An Insult to Christians? The Mail’s Insult to Our Intelligence | A Range of Reasonable Responses

  6. Pingback: An Insult to Christians? The Mail’s Insult to Our Intelligence | Michael Rubenstein presents.....

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s