Clarification of the Article 9(2) ECHR qualification? Eweida and Others v the UK

BlogPhotoDr Iyiola Solanke

Can an employer compel a Christian employee to: a) remove jewellery worn to manifest religious belief or b) carry out workplace duties which are felt to contravene central tenets of their faith? How far must employers go to accommodate religion and belief? Do they have to accommodate believers, whose ‘commitment to religion ‘involves not just participation in the worship and corporate life of the religion concerned but adherence to its system of values’ in a way that influences their behaviour in their daily lives, outside the context of the religion’s corporate life? Must organisational aims respect religion?

Since the introduction in England and Wales of the Employment (Religion and Belief) Regulations in 2003 – in avowed implementation of  Directive 2000/78/EC (the Employment Equality Directive) – , domestic courts in the UK have understood the requirements of EU law to place only a limited obligation upon employers to recognize and accommodate the religious beliefs of employees in the workplace: Muslim claimants such as Mohmed and Azmi[1] were unsuccessful in gaining legal support to wear a long beard or the hijab; Christian claimants such as Mba[2] have not persuaded judges that their religion should relieve them from Sunday working.   Of course (national law implementing) EU law in this area is intended to be interpreted in a manner which is also consistent with the requirements of the ECHR (see R (on the application of AMICUS–MSF section, NUT and others) v. Secretary of State for Trade and Industry [2007] ICR 1176 (EWHC, Admin) ).   Strasbourg jurisprudence seems to be supportive of this stance with its dual approach to Article 9 ECHR on freedom of religious expression. In Kokkinakis[3], it said that religious freedom “implies freedom to manifest ones religion. Bearing witness in words and deeds is bound up with the existence of religious convictions” but it is agreed that this right is not absolute –

‘… article 9 of the European Convention on Human Rights safeguards freedom of religion. This freedom is not confined to freedom to hold a religious belief. It includes the right to express and practise one’s beliefs. Without this, freedom of religion would be emasculated. Invariably religious faiths call for more than belief. To a greater or lesser extent adherents are required or encouraged to act in certain ways, most obviously and directly in forms of communal or personal worship, supplication and meditation. But under article 9 there is a difference between freedom to hold a belief and freedom to express or ‘manifest’ a belief. The former right, freedom of belief, is absolute. The latter right, freedom to manifest belief, is qualified.’[4]  

The Strasbourg court was recently called upon to consider anew the extent of this qualification in four cases sent to it from the UK.[5] It gave no universal answer – the qualification depends upon the interest that competes with the right to freedom of manifestation of religious belief.

In the case of Mrs Eweida,[6] the competing interest was corporate image. Many public and private companies seek to project a particular image and so oblige employees to wear a uniform. Mrs Eweida worked for a private company, British Airways. All customer facing employees were required to wear a uniform. The rules provided that jewellery could be worn for religious reasons as long as it was either at all times covered up by the uniform, or if this was impossible, approved by local management. Permission had been given to Sikhs to wear a turban and the kara, and female Muslims to wear the hijab. Mrs Eweida was not given permission to a wear her cross visibly, and at some point, she decided that this made her cross. A BA employee since 1999, in 2006 she decided that she would no longer hide her cross. In line with BA policy, she was sent home. Her claim that this constituted discrimination contrary to Regulation 3 of the Employment Equality (Religion and Belief) Regulations 2003 was rejected by the ET, EAT, CA and Supreme Court. The European Court of Human Rights accepted, however, that BAs policy interfered with Mrs Eweida’s right to manifest her religion under Article 9(2). The domestic court had attached too much weight to BA’s desire to project its brand.

Although BA had already changed its policy long before the Strasbourg decision on Tuesday, the balance struck in Strasbourg resonates beyond religious discrimination. In many sex discrimination cases, courts in England have found against claimants seeking to challenge company dress regulations. Weight was regularly given to the employers wish to project a particular image. In Burret[7] a female nurse lodged a complaint after she was subjected to disciplinary measures for refusing to wear a cap which male nurses did not have to wear. As far as the tribunal was concerned, the requirement to wear a uniform was a rule which applied to men and women alike: no less favourable treatment arose because women had to wear a hat. Although Burrett had been subjected to a detriment as she had been disciplined, she had not been treated less favourably as a man would also have been disciplined for refusing to wear part of his uniform. Likewise, in Smith[8] a male employee claimed that dismissal for wearing a ponytail was sex discrimination. The courts were divided on this, but the Court of Appeal agreed with the initial tribunal that there was no discriminatory treatment. In 2004, the courts upheld the dress code at an employment agency[9] which stipulated that all men had to wear a collar and tie whilst women were to ‘dress appropriately and to a similar standard.’ The claimant, an administrative assistant whose job involved no public contact, had refused to wear the tie and received a formal warning. The lower court ruled that the dress code breached the SDA, on the basis that women enjoyed more flexibility than men, but this was over-ruled by the EAT on the basis that there was no other way for the employer to achieve the level of smartness required.

Overall, therefore, courts have accepted the legitimacy of a corporate goal to secure smartness and regularly deferred to the employer on how this was to be achieved. The judgement in Eweida may now open new opportunities to challenge dress codes. It is questionable whether domestic judges can continue to uphold corporate image as a legitimate reason to impose appearance rules upon workers that perpetuate discrimination. It is possible that, as in Eweida, many uniform policies will not be of crucial importance – perhaps in Azmi but in Mohmed?

In the case of Mrs Chaplin, the uniform policy was found to be of crucial importance. Mrs Chaplin worked for the NHS as a geriatric nurse. As with BA, the NHS uniform regulations prohibited all necklaces and jewellery but allowed an exception if it were worn for religious reasons. Approval was to be granted by the line manager. This was not automatic: one Christian nurse had been asked to remove her cross and chain on health and safety grounds, and two Sikh nurses were instructed to remove their bangles (all complied). However, two Muslim nurses were granted permission to replace the loose hijab with a close fitting ‘sports’ version. When a new v-neck tunic was introduced as standard uniform, Chaplin was asked to remove her cross and chain on health and safety grounds: as it now dangled freely, it was possible that an elderly patient might grab it causing injury. It is not clear why this request was only made two years after the introduction of the new tunic. Chaplin argued that it was a religious symbol and refused to comply: she was subsequently transferred to a non-nursing position, a post which ceased to exist after seven months. Her complaint of direct and indirect discrimination on religious grounds was unsuccessful at the first level and in contrast to Eweida, she was also unsuccessful in Strasbourg. Here the balance swung the other way: health and safety concerns trumped the right guaranteed by Article 9 ECHR. The Court deferred to hospital managers: they were ‘better placed to make decisions about clinical safety than a court, particularly an international court’ which had not heard direct evidence [99].  The interference was found to be necessary in a democratic society.

Two scenarios, one issue, two different decisions – there is no single answer to the question of when an employer can restrict the wearing of religious items. It depends. The court did, however, give a single answer in relation to the second question in my opening paragraph – an employer can compel a Christian to carry out workplace duties which they feel contravenes their faith. Obdurate believers do not have to be accommodated by their employers. There was no clarification of the Article 9 qualification here.

The claimants in the two cases considered by the ECtHR were Mrs Ladele,[10] a registrar in the London Borough of Islington, and Mr McFarlane[11], a relationship counselor for RELATE, a charity offering relationship services. Both lost their jobs when they declared a desire to manifest the teachings of their religion in relation to the service provided to gay and lesbian couples. Mrs Ladele sought an exemption from officiating at civil partnership ceremonies as this conflicted with biblical teaching and MacFarlane was reluctant to provide sexual counseling to same-sex couples for the same reason. Neither employer granted this but Ladele avoided such ceremonies by swopping shifts with her colleagues whilst McFarlane gave an undertaking to comply with company policy.

The role of co-workers in these cases is striking. In both cases, it was colleagues that kept management attention upon these individuals. Ladele’s colleagues complained that her refusal to carry out civil partnerships was discriminatory; in particular her gay colleagues found the informal arrangements offensive. The local authority subsequently disciplined her for breaching the Code of Conduct. Her subsequent claim of discrimination on the grounds of religion failed – the council was correct to behave as it did and given its blanket policy was in fact obliged to require her to perform civil partnerships.

McFarlane was not believed. There is some similarity between his situation and the case of Reaney,[12] but the issue is reversed. In Reaney, the Bishop of the Diocese of Hereford was unconvinced that a gay applicant for a job as a Church youth worker was committed to celibacy; In Mcfarlane, the employer was unconvinced that despite his assurances he was committed to providing counseling to same-sex couples in line with company policy. The Bishop refused to hire Mr Reaney; RELATE dismissed MacFarlane for gross misconduct. The tribunals decided against the Bishop and in favour of RELATE – in the former case the Bishop was wrong to rely upon his own vague ideas on Reaney’s future conduct; but in the latter case, RELATE were correct not to rely upon MacFarlane’s undertaking to uphold company policy.  This was not discrimination on the grounds of religion: the dismissal was based on lack of trust.

The idea of mainstreaming in equality law was introduced to shift the emphasis from reactive litigation to pro-active prevention. The role played by co-workers in these cases suggests that mainstreaming of equality has made some progress. Colleagues should be applauded when they take responsibility for equality and human rights. Vigilance is always required, especially perhaps in relation to disability, where harassment remains rife.[13] Reducing the burden of enforcement on the individual victim will strengthen the general culture of equality and human rights. However, there is a thin line between vigilance and victimization. This is clear in the case of Ladele, and was noted by the judges. Before her dismissal, her employers made public confidential information and behaved in a way which unnecessarily exposed her to some harassment. Employers must remember that they not only have a responsibility to keep the workplace neutral, but must also keep a watchful eye over what can be described as the dark-side of mainstreaming.

Employers must also remain vigilant to another key responsibility introduced by the Equality Act 2010. Section 149 established a public sector equality duty – this general duty obliges public authorities to: have due regard to the need to eliminate conduct prohibited by Act; advance equality of opportunity and foster good relations.[14] This duty applies to all protected characteristics in the Act – it can be seen as a domestic qualification to Article 9 ECHR: the right to manifest religious belief may not be absolute, but employers have duties towards those who wish to do so nonetheless. It is questionable whether the decisions taken by the employers in these cases satisfied this duty – did the Health Trust consider the impact of introducing a v-neck tunic on its Christian employees? Did RELATE think about whether all counsellors had to provide sexual counselling? Did Islington explore the alternative of designating just some registrars to perform civil partnerships, as was done elsewhere? It is questionable whether ’due regard’ was given to the need to promote understanding and good relations at the workplace.

Employers have an important task and must act with care to ensure that their decisions and policies do not generate tensions or tolerate discrimination arising between differently placed yet vulnerable groups of workers. Individuals also have a part to play beyond asserting their own rights. In particular, obdurate believers will have to work with their employers to find a resolution to issues. While the scale and nature of religious discrimination may not be fully understood, believers cannot avoid the law of the land whilst in the land of the living. And we should all take note of the words of Justice Albie Sachs:

“Believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land.   At the same time, the state should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law”.[15]

[1]   Mohmed v West Coast Trains [2006] UKEAT 0682_05_3008, Azmi v Kirklees Metropolitan Council [2007] IRLR 484.

[2]   Mba v London Borough of Merton,  Appeal No. UKEAT/0332/12/SM, 13 December 2012.

[3]   Kokkinakis v Greece (1994) 17 EHRR 397.

[4]   Lord Bingham in R. V Secretary of State for Education and Employment ex parte Williamson [2005] UKHL 15 [16].

[5]   Case of Eweida and Others v. the United Kingdom Applications No.s  48420/10, 59842/10, 51671/10 and 36516/10, 15th January 2013.

[6]   Eweida v British Airways [2010] EWCA Civ 80.

[7]   Burret v West Birmingham Health Authority [1994] IRLR 7.

[8]   Smith v Safeway [1995] IRLR 132.

[9]   Department for Work and Pensions v Thomson [2004] IRLR 248.

[10]   Ladele v LB Islington [2009] EWCA Civ 1357.

[11]   McFarlane v Relate Avon [2009] UKEAT 0106_09_3011.

[12]   Reaney v. Hereford Diocesan Board of Finance ET 1602844/2006.

[13]   Equality and Human Rights Commission, ‘Hidden in plain sight – Report of the Inquiry into disability-related harassment’ 2011.

[14]   R (Kaur) v London Borough of Ealing [2008] EWHC 2062; R (Brown) v Secretary of State for Work and Pensions [2009] PTSR 1506; R (Bailey) v London Borough of Brent [2011] EWCA Civ 1586.

[15]   Christian Education South Africa v Minister of Education (cited by Lord Walker in ex parte Williamson).

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