The facts of the four cases are well known; Ms Eweida, employed by British Airways, and Ms Chaplin, a nurse employed by the NHS, both complained of uniform policies preventing them from visibly wearing a cross around their necks. Ms Ladele worked as a registrar for Islington Borough Council and objected to conducting civil partnerships for same sex couples, and Mr McFarlane, employed by Relate, refused to undertake that he would carry out psycho-sexual therapy to same sex couples if required. All four complainants had lost their employment claims domestically. In relation to the latter two claims, although the EAT and CA have been at pains to point out that it is not a question of weighing the rights of the gay community against those of the Christian community, this is what some feared has happened. No fewer than 14 interested parties intervened to make submissions to the ECtHR.
Art 9 ECHR of course provides that everyone has the right to freedom of thought, conscience and religion, and to manifest his or her religion, but that the manifestation may be limited as prescribed by law and as is necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals or for the protection of the rights and freedoms of others.
Essentially, the ECtHR have held, by five votes to two, that Ms Eweida suffered a violation of her Art 9 right, but that the other three applications did not.
At paragraphs 79 - 84 of the judgment, the court set out the general principles which govern Art 9:
Applying those principles, the findings of the court were:
In the cases of Ms Eweida and Ms Chaplin, a uniform policy preventing their visibly wearing a cross was an interference with their right to manifest their religion.
BA had a legitimate aim of seeking to communicate a certain image for its company, and to promote recognition of its brand and staff. However, the domestic courts had afforded too much weight to that aim, and the state had accordingly failed sufficiently to protect Ms Eweida’s right to manifest her religion. It is of note, however, that her remedy was limited to €2,000 to compensate her for her anxiety, frustration and distress. She did not recover loss of income for the period before the uniform policy was changed by BA in circumstances where she had refused the offer of non-uniformed administrative work, and had received other income by way of gifts, donation and other earnings.
Ms Chaplin was in a different position because while the wearing of a cross was a manifestation of her religion, "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 to Ms Eweida".
For both Ms Ladele and Mr McFarlane, their objections to participating in the creation of same sex civil partnerships, and not wishing to provide counselling to same sex couples, were both "directly motivated by [their] religious beliefs". Both were accordingly found to be within the scope of Art 9 (and Ms Ladele within the scope of Art 14 concerning non-discrimination, in relation to which the comparator was a registrar with no religious objection to same sex unions). The employers were, however, considered to have legitimate aims, of adhering to a policy of equal opportunities and non-discrimination. In considering whether the means used to pursue this aim were proportionate, the ECtHR weighed the serious consequence for Ms Ladele and Mr McFarlane - ultimately losing their jobs - with the aim of their employers to secure the rights of others also protected under the convention. The Court considered that the domestic courts had acted within the margin of appreciation allowed to them, and so dismissed both cases.
When interpreting the Equality Act, the test in Nicholson v Granger  IRLR 4, which includes asking whether a belief attains the required level of cogency and importance, will continue to apply. Cases, however, tend not to be concerned with issues of whether a person has a certain belief, but with their assertion that they should be allowed to manifest it. The approach to this issue is refined in this judgment. It must in future be a question of fact as to whether the manifestation in issue in any particular case is "intimately linked to the religion or belief".
While an employer will, if it interferes with an employee's right to manifest his or her religion, have to demonstrate a legitimate aim, what will remain the most difficult issue in practice is whether the means used to adopt the aim are proportionate. Practical solutions offered in the workplace, and negotiations to seek such solutions will weigh in the balance - and may, if there has been an infringement, serve to limit any compensation.
15 January 2013
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