Religious discrimination in the workplace: the case of Eweida and Others v the United Kingdom

Transcription

1 Religious discrimination in the workplace: the case of Eweida and Others v the United Kingdom Standard Note: SN06533 Last updated: 28 May 2013 Author: Section Doug Pyper Business & Transport Section This note examines the judgment in the case of Eweida and Others v the United Kingdom, handed down by the European Court of Human Rights on 15 January The case considered the restrictions an employer may justifiably place on workers freedom to manifest their religion in the workplace, which is protected by Article 9 of the European Convention on Human Rights. There were four applicants before the European Court, all of whom were practising Christians. Two applicants, Nadia Eweida and Shirley Chaplin, had been prevented from wearing a cross at work. The third applicant, Lillian Ladele, worked for a local authority as a registrar of births, deaths and marriages. She viewed same-sex civil partnerships as contrary to God s law and was disciplined for refusing to officiate at them. The fourth applicant, Gary McFarlane, provided sex therapy and relationship counselling. He was dismissed for failing to assure his employer that he would, in line with the company s Equal Opportunities Policy, provide counselling services to same-sex couples. The Court found that there had been a violation of Ms Eweida s Convention rights but not those of the other three applicants. The judgment represents a departure from the previous case law on freedom of religion, which held that the right to resign protected workers freedom of religion. The Court took the view that a worker s right to resign should no longer automatically negate any interference with that worker s Article 9 rights. This information is provided to Members of Parliament in support of their parliamentary duties and is not intended to address the specific circumstances of any particular individual. It should not be relied upon as being up to date; the law or policies may have changed since it was last updated; and it should not be relied upon as legal or professional advice or as a substitute for it. A suitably qualified professional should be consulted if specific advice or information is required. This information is provided subject to our general terms and conditions which are available online or may be provided on request in hard copy. Authors are available to discuss the content of this briefing with Members and their staff, but not with the general public.

2 Contents 1 Introduction 3 2 The applicants Nadia Eweida Shirley Chaplin Lillian Ladele Gary McFarlane 4 3 The domestic proceedings The treatment of Article 9 by the Court of Appeal 5 4 The decision of the European Court of Human Rights The right to resign as a protection against religious discrimination Striking a balance between freedom of religion and competing rights Application for referral to the Grand Chamber 9 5 Conclusion 9 2

3 1 Introduction The central matter in issue before the European Court of Human Rights (ECtHR) in Eweida and Others v the United Kingdom [2013] ECHR 37 was whether domestic law adequately protected the applicants right to manifest their religion, as enshrined in Article 9 of the European Convention on Human Rights (ECHR), which provides: 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 for the protection of the rights and freedoms of others. The case consisted of four claims heard jointly, each relating to Christian beliefs, although each raising slightly different issues. Although only one of the four applicants, Ms Eweida, won her case, the judgment signals an important change to the treatment of Article 9 in European jurisprudence. Prior to Eweida and Others, it was thought that a worker s right to manifest his or her religion was protected adequately by the right to resign. This view held that workers voluntarily accept their employment and, should that employment entail restrictions on the freedom to manifest their religion, they are free to resign. The judgment departs from this position, holding that the better approach is to weigh the possibility of resignation in the balance when considering whether a workplace restriction is proportionate. The details of the four applications are outlined below, followed by a discussion of the proceedings in the UK courts, those in Europe, and the implications of the ECtHR s decision. 2 The applicants 2.1 Nadia Eweida Ms Eweida is a practising Coptic Christian who, from 1999, worked as a member of check-in staff at British Airways. In 2004 British Airways introduced a new uniform which included an open-neck blouse for women. British Airways policy required that: Any accessory or clothing item that the employee is required to have for mandatory religious reasons should at all times be covered up by the uniform. If however this is impossible to do given the nature of the item and the way it is to be worn, then approval is required through local management as to the suitability of the design to ensure compliance with the uniform standards. 1 In May 2006 Ms Eweida, who had previously concealed under her clothing the cross she wore around her neck, began wearing it openly. Although acquiescing at various points over the following months to British Airways requests that she conceal or remove her cross, on 20 September 2006 Ms Eweida refused to, and was sent home without pay until such point as she chose to comply with the uniform policy. Following critical news coverage, British Airways amended its policy to permit visible wearing of the cross. 2 In December 2006 Ms Eweida issued a claim in the Employment Tribunal, 1 2 Eweida and Others v the United Kingdom [2013] ECHR 37, para 10 BA uniform review after cross row, BBC News [online], 24 November 2006 (accessed on 15 January 2013) 3

4 which she pursued despite returning to work on 3 February British Airways refused to compensate her for loss of earnings during the period she had chosen not to come into work. 2.2 Shirley Chaplin The second application raised similar issues to those complained of by Ms Eweida, although, critically, in a different setting. Ms Chaplin sought to display a cross around her neck whilst working as a geriatrics nurse for the Royal Devon and Exeter NHS Foundation Trust. In June 2009 Ms Chaplin s manager asked that she remove her cross on the basis that it may cause injury if a patient pulled on it or if it came into contact with an open wound. In November 2009 Ms Chaplin was moved to a non-nursing position, and, in that same month, applied to an Employment Tribunal complaining of both direct and indirect discrimination. 2.3 Lillian Ladele The third applicant, Lillian Ladele, worked as a registrar of births, deaths and marriages for the London Borough of Islington. She viewed same-sex civil partnerships as contrary to God s law. Islington s equality and diversity policy provided, materially: Islington aims to ensure that...customers receive fair and equal access to council services... All employees are expected to promote these values at all times and to work within the policy. Employees found to be in breach of this policy may face disciplinary action. 3 Subsequent to the enactment of the Civil Partnership Act 2004, Islington designated Ms Ladele as a registrar of civil partnerships. Although initially permitted to refuse to officiate at civil partnerships, after a series of complaints from her colleagues Islington requested that Ms Ladele confirm in writing that she would henceforth do so, a request which she refused. Islington commenced disciplinary proceedings against Ms Ladele for failure to comply with its Code of Conduct and equality policy. At a disciplinary hearing on 16 August 2007 Islington asked Ms Ladele to sign a new job description requiring her to conduct work in connection with civil partnerships; she promptly issued proceedings in the Employment Tribunal, complaining of direct and indirect discrimination and harassment. 2.4 Gary McFarlane Mr McFarlane worked as a sex therapy and relationship counsellor for Relate, a private counselling service. This involved a requirement to abide by the British Association for Sexual and Relationship Therapy s Code of Ethics and Principles of Good Practice, as well as Relate s own Equal Opportunities Policy, the latter placing a positive duty on counsellors to ensure that clients receive equal treatment irrespective of sexual orientation. Mr McFarlane had expressed unwillingness on religious grounds to work with same-sex couples. Relate subsequently sought written assurances from Mr McFarlane that he would, in line with Relate s Equal Opportunities Policy, provide counselling services to same-sex couples. He was dismissed on 18 March 2008 for failing to provide such assurances. 3 See: Eweida and Others v the United Kingdom [2013] ECHR 37, para 24 4

5 3 The domestic proceedings All the applicants commenced their claims in the Employment Tribunal. Each founded their claim principally upon regulation 3 of the Employment Equality (Religion or Belief) Regulations 2003, which provides: 3. Discrimination on grounds of religion or belief (1) For the purposes of these Regulations, a person ( A ) discriminates against another person ( B ) if (a) on grounds of religion or belief, A treats B less favourably than he treats or would treat other persons; or (b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same religion or belief as B, but (i) which puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons, (ii) which puts B at that disadvantage, and (iii) which A cannot show to be a proportionate means of achieving a legitimate aim. It is important to be clear that at this stage the claims were against their respective employers, not the State. It was only when the pursuit of a domestic legal remedy had come to an end that the case became one against the United Kingdom for failing adequately to protect, in domestic law, the claimants Article 9 rights. Ms Eweida s, Ms Ladele s and Mr McFarlane s cases all proceeded to the Court of Appeal where they were unsuccessful. After a finding against her in the Employment Tribunal, Ms Chaplin was advised that in light of the, at that point, recent decision of the Court of Appeal in Ms Eweida s case, any appeal on her part would have no prospect of success. 3.1 The treatment of Article 9 by the Court of Appeal Although the main focus of the domestic proceedings was regulation 3 of the 2003 Regulations, submissions were made from an early stage on Article 9. In light of the subsequent decision of the ECtHR, it is informative to look at the treatment of Article 9 in the Court of Appeal, particularly so in respect of Ms Eweida s claim given that hers was the only successful case. In the Court of Appeal s judgment in Eweida v British Airways [2010], Lord Justice Sedley observed the jurisprudence on Art. 9 does nothing to advance the claimant's case, going on to cite Lord Bingham s summary, in R (SB) v Governors of Denbigh High School [2006] 2 All ER 487, of European case law in this area: The Strasbourg institutions have not been at all ready to find an interference with the right to manifest religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to practise or observe his or her religion without undue hardship or inconvenience. 4 4 Eweida v British Airways [2010] EWCA Civ 80, paras 22-23; see also: R (SB) v Governors of Denbigh High School [2006] 2 All ER 487, para 23 5

6 Clearly, the Court of Appeal felt Ms Eweida could draw no assistance from the European case law. This reflected the established position that an employee s right to resign if their religious obligations conflicted with their work duties constituted adequate protection of their freedom of thought, conscience and religion. 5 In Ms Ladele s case the Court of Appeal also found that Article 9 did not assist her, noting previous decisions of the ECtHR:...the article "primarily protects the sphere of personal beliefs and religious creeds, i.e. the area which is sometimes called the forum internum." Accordingly, as it went on to explain, article 9 "does not always guarantee the right to behave in the public sphere in a way which is dictated by such a belief"... Article 9 does not protect every act motivated or inspired by a religion or belief. Moreover, in exercising his freedom to manifest his religion, an individual may need to take his specific situation into account". 6 Consequently, the Court held that Ms Ladele s employer had not discriminated against her, and that Article 9 did not entitle her to refuse to officiate at civil partnerships. In light of that decision, the Court of Appeal reached the same conclusion in Mr McFarlane s case, stating: The applicant's argument is closed against him by this court's decision in Ladele, from which this case cannot sensibly be distinguished. There is no more room here than there was there for any marginal balancing exercise in the name of proportionality. To give effect to the applicant's position would necessarily undermine Relate's proper and legitimate policy. 7 Thus, in all three cases that reached the Court of Appeal, the Court held that Article 9 did not advance their cases. In both Ms Ladele s and Mr McFarlane s cases, the Court s decision was informed by the conflicting need to protect same sex couples from discrimination. In Ms Eweida s case, where there was no conflicting need to protect other groups from discrimination, the Court s reading of Article 9 was dictated to a large extent by European case law which had adopted a restricted approach to Article 9. 4 The decision of the European Court of Human Rights The judgment of the ECtHR was based primarily on Article 9. However, three of the applicants (Ms Chaplin, Ms Ladele and Mr McFarlane) also invoked Article 14 ECHR in conjunction with Article 9. Article 14 provides: 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. Article 14 is not a freestanding right; a complaint under Article 14 must be brought in conjunction with another Convention right/other Convention rights. The Court ruled by five votes to two that there had been a violation of Ms Eweida s Article 9 rights, and again by five votes to two that there had not been a violation of Ms Ladele s rights under Article 9 taken in conjunction with Article 14. The Court held unanimously that there See also: Ahmad v United Kingdom (1981) 4 EHRR 128; Stedman v United Kingdom (1997) 23 EHRR CD 168 Ladele v London Borough of Islington [2009] EWCA Civ 1357, paras McFarlane v Relate Avon Ltd [2010] EWCA Civ 880, para 25 6

7 had been no violation of either Ms Chaplin s or Mr McFarlane s rights under Article 9 alone or in conjunction with Article 14. Given the number of different conclusions reached by the Court on similar facts, the judgment has been described as something of a mixed message in relation to religion at work. 8 It is helpful therefore to pick out those aspects of the judgment that are likely in future to affect claims of religious discrimination in the workplace. 4.1 The right to resign as a protection against religious discrimination As noted, the judgment in Eweida and Others represents a departure from the previous case law on Article 9, which held that the right to resign adequately protected workers freedom of religion. The ECtHR addressed its past decisions in the following terms:...the possibility of resigning from the job and changing employment meant that there was no interference with the employee s religious freedom...however, the Court has not applied a similar approach in respect of employment sanctions imposed on individuals as a result of the exercise by them of other rights protected by the Convention, for example the right to respect for private life under Article 8; the right to freedom of expression under Article 10; or the negative right, not to join a trade union, under Article 11...Given the importance in a democratic society of freedom of religion, the Court considers that, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate. 9 Thus, the Court took the view that a worker s right to resign should no longer negate any interference with that worker s Article 9 rights. In considering such issues in future, courts will be required to weigh the right to resign in the balance alongside other relevant considerations. The practical effect of this on future workplace religious discrimination claims will be that a worker s right to resign would only bolster an employer s argument that its policies do not violate the worker s Article 9 rights, rather than automatically preclude such a violation. The dissenting judgment in Ms Eweida s case endorsed this departure from previous case law, notwithstanding its conclusion that Ms Eweida s Article 9 rights had not been violated. Despite reaching a different conclusion to that of the majority, Judges Bratza and David Thór Björgvinsson both based their judgments on proportionality grounds, weighing the competing considerations in the balance British Airways interests on the one hand and Ms Eweida s rights on the other - rather than viewing the right to resign as affording a guarantee of freedom of religion. Their dissenting judgment provided perhaps the clearest articulation of the new approach to be taken in future Article 9 claims: A restriction on the manifestation of a religion or belief in the workplace may amount to an interference with Article 9 rights which requires to be justified even in a case where the employee voluntarily accepts an employment or role which does not accommodate the practice in question or where there are other means open to the individual to practise or observe his or her religion as, for instance, by resigning from the employment or taking a new position...insofar as earlier decisions of the Commission 8 9 English, R., Strasbourg rules against UK on BA crucifix issue, but rejects three other religious rights challenges, UK Human Rights Blog (accessed 21 January 2013) Eweida and Others v the United Kingdom [2013] ECHR 37, para 83 7

8 and the Court would suggest the contrary, we do not believe that they should be followed. 10 Indeed, Judge Bratza had, writing extra-judicially, predicted the diminished relevance of the right to resign: A related area in which the decisions of the Court and Commission have attracted criticism is that of employment and the wish of an employee to practise, share or display his or her religion or belief in the workplace. It is an area where Article 9 rights appear to have been particularly restricted - and perhaps inevitably so, having regard to the conflicting interests of the employer. The ECHR organs have traditionally taken the view that there is no interference with the manifestation of religion or belief when a person voluntarily accepts a position where curbs are placed on the free exercise of religious beliefs and where an employee is free to leave his or her employment so as to continue to follow whatever religious observances he or she wishes....even where the employee has substantiated the genuineness of his or her claim to belong to the religion, the ECHR organs have frequently invoked the freedom to resign from employment as an answer to the complaint. The assumption that, in the modern employment market, such a choice is a real one has been questioned, and there are perhaps indications in the more recent case law that the freedom to resign from employment will no longer be seen as the ultimate guarantee of freedom of religion. 11 This same approach was applied to Ms Chaplin s case. Her claim failed because her employer had a stronger argument for refusing to permit her to wear a cross than British Airways had in Ms Eweida s case: The Court considers that, as in Ms Eweida s case, the importance for the second applicant [Ms Chaplin] of being permitted to manifest her religion by wearing her cross visibly must weigh heavily in the balance. However, 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 in respect of Ms Eweida. Moreover, this is a field where the domestic authorities must be allowed a wide margin of appreciation. The hospital managers were better placed to make decisions about clinical safety than a court, particularly an international court which has heard no direct evidence. 12 Similarly, Ms Ladele s and Mr McFarlane s cases were decided against them not by reason of their right to resign, but by reason of there being competing factors that legitimately prevented them manifesting their religion in the workplace, namely, the need to protect others from discrimination. 4.2 Striking a balance between freedom of religion and competing rights Ms Ladale and Mr McFarlane lost their cases because the Court took the view that in circumstances where there are competing rights at play here, the Article 9 rights of the applicants versus the rights of same sex couples not to be discriminated against national authorities are best placed to strike the balance Eweida and Others v the United Kingdom [2013] ECHR 37, dissenting judgment of Judges Bratza and David Thór Björgvinsson, para 2 Bratza, N. The "precious asset": freedom of religion under the European Convention on Human Rights, Ecclesiastical Law Journal, 2012, 14(2), Eweida and Others v the United Kingdom [2013] ECHR 37, para 99 8

9 In respect of Ms Ladele s case the Court held:...the local authority s policy aimed to secure the rights of others which are also protected under the Convention. The Court generally allows the national authorities a wide margin of appreciation when it comes to striking a balance between competing Convention rights...in all the circumstances, the Court does not consider that the national authorities, that is the local authority employer which brought the disciplinary proceedings and also the domestic courts which rejected the applicant s discrimination claim, exceeded the margin of appreciation available to them. 13 In respect of Mr McFarlane s case it held:...for the Court the most important factor to be taken into account is that the employer s action was intended to secure the implementation of its policy of providing a service without discrimination. The State authorities therefore benefitted from a wide margin of appreciation in deciding where to strike the balance between Mr McFarlane s right to manifest his religious belief and the employer s interest in securing the rights of others. In all the circumstances, the Court does not consider that this margin of appreciation was exceeded in the present case. 14 In view of the fact the ECtHR deferred to the domestic courts on this issue, unless new European case law emerges, future such cases will be subject to the Court of Appeal judgments in Ms Ladele s and Mr McFarlane s cases. In view of those judgments, Article 9 may afford little assistance to workers who seek to manifest their religious freedom in the workplace where to do so could discriminate against others Application for referral to the Grand Chamber Under Article 44 of the Convention, the judgment of the ECtHR only becomes final if the parties declare they will not request an appeal to the Grand Chamber, if that request has not been granted within three months of the judgment or if the request is refused. The unsuccessful parties sought appeal to the Grand Chamber. At its meeting on 27 May 2013 the Grand Chamber panel of five judges rejected the request. Thus, the judgment is now final Conclusion The ECtHR s judgment in Eweida and Others will cause uncertainty for employers and employees. Clearly, health and safety concerns and the need to protect others from discrimination may justify circumscribing the freedom to manifest one s religion at work, whereas a company s desire to protect its corporate image might not. However, the judgment leaves unclear the dividing line between what will, and what will not, constitute a justifiable workplace restriction of Article 9 rights. The Equality and Human Rights Commission has recognised this potential for confusion: The Commission s view is that the Government should now look at the need to change the law to take the European Court judgment into account. However, until this takes place, there is potential for confusion for both employers and employees following the ruling. This is in particular due to the fact that the Court found that Eweida had suffered discrimination but that Chaplin had not Eweida and Others v the United Kingdom [2013] ECHR 37, para 106 Eweida and Others v the United Kingdom [2013] ECHR 37, para 109 See particularly: McFarlane v Relate Avon Ltd [2010] EWCA Civ 880 (29 April 2010), para ECtHR press release ECHR 161 (2013) 28 May

10 The Commission will therefore be publishing new guidance on this issue for employers and employees, to help them avoid further confusion and potentially costly litigation while the government considers whether to change the law. 17 In February 2013 the Commission published guidance which aims to help employers understand how to comply with the Court s judgment. The guidance is available here Equality and Human Rights Commission, Commission welcomes European Court of Human Rights ruling on religious discrimination cases, Equality and Human Rights Commission website (accessed 18 January 2013) EHRC website, Religion or Belief - new guidance February 2013 (accessed 28 May 2013) 10