Corte europea dei diritti dell’uomo
(Quarta Sezione)
15 gennaio 2013
CASE
OF EWEIDA AND OTHERS v. THE
(Applications nos. 48420/10, 59842/10, 51671/10 and
36516/10)
JUDGMENT
STRASBOURG
This judgment will become final in the
circumstances set out in Article 44 § 2 of the Convention. It may be subject to
editorial revision.
In the case of Eweida and Others v. the United
Kingdom,
The European Court of Human Rights (Fourth
Section), sitting as a Chamber composed of:
David Thór Björgvinsson, President,
Nicolas Bratza,
Lech Garlicki
Päivi Hirvelä,
Zdravka Kalaydjieva,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 4 September
and 11 December 2012,
Delivers the following judgment, which was
adopted on that date:
PROCEDURE
1. The case originated in four
applications (nos. 48420/10, 59842/10, 51671/10 and 36516/10) against the
United Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by four British nationals, Ms Nadia
Eweida, Ms Shirley Chaplin, Ms Lillian Ladele and Mr Gary McFarlane (“the
applicants”), on 10 August 2010, 29 September 2010, 3 September 2010 and 24
June 2010 respectively.
2. The applicants were
represented by Aughton Ainsworth, a firm of solicitors in Manchester, (Ms
Eweida), Mr Paul Diamond, (Ms Chaplin and Mr McFarlane), and Ormerods, a firm
of solicitors in Croydon, Surrey, (Ms Ladele). The United Kingdom
Government (“the Government”) were represented by their Agent, Ms Ahila
Sornarajah.
3. The applicants complained
that domestic law failed adequately to protect their right to manifest their
religion. Ms Eweida and Ms Chaplin complain specifically about restrictions
placed by their employers on their wearing of a cross visibly around their
necks. Ms Ladele and Mr McFarlane complained specifically about sanctions taken
against them by their employers as a result of their concerns about performing
services which they considered to condone homosexual union. Ms Eweida, Ms
Chaplin and Mr McFarlane invoked Article 9 of the Convention, taken alone and
in conjunction with Article 14, while Ms Ladele complained only under Article
14 taken in conjunction with Article 9.
4. On 12 April 2011 the
application of Ms Chaplin was joined to that of Ms Eweida and the application
of Mr McFarlane was joined to that of Ms Ladele. All four applications
were communicated to the Government. The Court also decided to rule on the
admissibility and merits of the applications at the same time (Article 29 § 1).
At the date of adoption of the present judgment, it further decided to join all
four applications.
5. The following individuals
and organisations were given leave by the President to
intervene as third parties in the written procedure
(Article 36 § 2 of the Convention and Rule 44 § 2): the Equality
and Human Rights Commission; The National Secular Society; Dr Jan Camogursky
and The Alliance Defense Fund; Bishop Michael Nazir-Ali; The Premier Christian
Media Trust; the Bishops of Chester and Blackburn; Associazione Giuseppi
Dossetti: i Valori; Observatory on Intolerance and Discrimination against Christians
in Europe; Liberty; the Clapham Institute and KLM; the European Centre for Law
and Justice; Lord Carey of Clifton; and the Fédération Internationale des
ligues des Droits de l’Homme (FIDH, ICJ, ILGA-Europe).
6. A hearing took place in
public in the Human Rights Building, Strasbourg, on 4 September 2012 (Rule 59 §
3).
There
appeared before the Court:
(a) for the Government
Ms Ahila SORNARAJAH Agent for the Government
Mr James EADIE QC Counsel
Mr Dan SQUIRES Counsel
Ms Suzanne LEHRER Adviser
Mr Hilton LESLIE Adviser
Mr Wally FORD Adviser
(b) for the first applicant
Mr James DINGEMANS QC Counsel
Ms Sarah MOORE Counsel
Mr Thomas ELLIS Solicitor
Mr Gregor PUPPINCK Adviser
(c) for the third applicant
Ms Dinah ROSE QC Counsel
Mr Ben JAFFEY Counsel
Mr Chris McCRUDDEN Counsel
Mr Mark JONES Adviser
Mr Sam WEBSTER Adviser
(d) for the second and fourth applicants
Mr Paul DIAMOND Counsel
Mr Paul COLEMAN Counsel
Mr Pasha HMELIK Counsel
Ms Andrea WILLIAMS Adviser
Mr Andrew MARSH Adviser
The
Court heard addresses by Mr Eadie QC for the Government, Mr Dingemans QC
for Ms Eweida, Ms Rose QC for Ms Ladele and Mr Diamond for Ms Chaplin and
Mr McFarlane.
I. THE CIRCUMSTANCES OF THE CASE
7. The first applicant, Ms
Eweida, was born in 1951 and lives in Twickenham. The second applicant, Ms
Chaplin, was born in 1955 and lives in Exeter. The third applicant, Ms Ladele,
was born in 1960 and lives in London. The fourth applicant, Mr McFarlane, was
born in 1961 and lives in Bristol.
8. The facts of the case, as
submitted by the parties, may be summarised as follows.
A. Ms Eweida
9. The first applicant, who
spent the first eighteen years of her life in Egypt, is a practising Coptic Christian.
>From 1999 she worked as a member of the check-in staff for British Airways Plc,
a private company.
10. British Airways required
all their staff in contact with the public to wear a uniform. Until 2004 the
uniform for women included a high-necked blouse. In 2004 British Airways
introduced a new uniform, which included an open-necked blouse for women, to be
worn with a cravat that could be tucked in or tied loosely at the neck. A
wearer guide was produced, which set out detailed rules about every aspect of
the uniform. It included the following passage, in a section entitled “Female
Accessories”:
“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, unless such approval is already
contained in the uniform guidelines. ... NB
No other items are acceptable to be worn with the uniform. You will be required
to remove any item of jewellery that does not conform to the above regulations.”
11. When an employee reported
for work wearing an item which did not comply with the uniform code, it was
British Airways’ practice to ask the employee to remove the item in question or,
if necessary, to return home to change clothes. The time spent by the employee
in putting right the uniform would be deducted from his or her wages. Of the
items of clothing considered by British Airways to be mandatory in certain
religions and which could not be concealed under the uniform, authorisation was
given to male Sikh employees to wear a dark blue or white turban and to display
the Sikh bracelet in summer if they obtained authorisation to wear a short‑sleeved
shirt. Female Muslim ground staff members were authorised to wear hijab
(headscarves) in British Airways approved colours.
12. Until 20 May 2006 Ms
Eweida wore a cross at work concealed under her clothing. On 20 May 2006 she decided
to start wearing the cross openly, as a sign of her commitment to her faith.
When she arrived at work that day her manager asked her to remove the cross and
chain or conceal them under the cravat. Ms Eweida initially refused, but
eventually agreed to comply with the instruction after discussing the matter
with a senior manager. On 7 August 2006 Ms Eweida again attended work with
the cross visible and again agreed to comply with the uniform code only
reluctantly, having been warned that if she refused she would be sent home
unpaid. On 20 September 2006 she refused to conceal or remove the cross
and was sent home without pay until such time as she chose to comply with her
contractual obligation to follow the uniform code. On 23 October 2006 she was
offered administrative work without customer contact, which would not have
required her to wear a uniform, but she rejected this offer.
13. In mid-October
14. Ms Eweida lodged a claim
with the Employment Tribunal on 15 December 2006, claiming, inter alia, damages for indirect
discrimination contrary to regulation 3 of the Employment Equality (Religion
and Belief) Regulations 2003 (“the 2003 Regulations”: see paragraph 41 below)
and complaining also of a breach of her right to manifest her religion contrary
to Article 9 of the Convention. The Employment Tribunal rejected
Ms Eweida’s claim. It found that the visible wearing of a cross was not a
mandatory requirement of the Christian faith but Ms Eweida’s personal choice.
There was no evidence that any other employee, in a uniformed workforce
numbering some 30,000, had ever made such a request or demand, much less
refused to work if it was not met. It followed that the applicant had failed to
establish that the uniform policy had put Christians generally at a
disadvantage, as was necessary in order to establish a claim of indirect
discrimination.
15. Ms Eweida appealed to the
Employment Appeal Tribunal, which dismissed the appeal on 20 November 2008. The
Employment Appeal Tribunal held that it was not necessary for Ms Eweida to show
that other Christians had complained about the uniform policy, since a person
could be put at a particular disadvantage within the meaning of regulation 3(1)
of the 2003 Regulations even if he or she complied, unwillingly, with the
restrictions on visible religious symbols. Nevertheless, the Employment Appeal
Tribunal concluded that the concept of indirect discrimination implied
discrimination against a defined group and that the applicant had not
established evidence of group disadvantage.
16. Ms Eweida appealed to the
Court of Appeal, which dismissed the appeal on 12 February 2010. It was argued
on her behalf that the Employment Tribunal and Employment Appeal Tribunal had
erred in law and that all that was needed to establish indirect discrimination
was evidence of disadvantage to a single individual. The Court of Appeal
rejected this argument, which it did not consider to be supported by the
construction of the 2003 Regulations. It endorsed the approach of the
Employment Appeal Tribunal, when it held that:
“... in order for indirect discrimination to
be established, it must be possible to make some general statements which would
be true about a religious group such that an employer ought reasonably to be
able to appreciate that any particular provision may have a disparate adverse
impact on the group.”
Moreover, even if Ms Eweida’s legal argument
were correct, and indirect discrimination could be equated with disadvantage to
a single individual arising out of her wish to manifest her faith in a
particular way, the Employment Tribunal’s findings of fact showed the rule to
have been a proportionate means of achieving a legitimate aim. For some seven
years no one, including Ms Eweida, had complained about the rule and once the
issue was raised it was conscientiously addressed. In the interim, British
Airways had offered to move the applicant without loss of pay to work involving
no public contact, but the applicant had chosen to reject this offer and
instead to stay away from work and claim her pay as compensation. In addition,
the Court of Appeal did not consider that this Court’s case-law under Article 9
of the Convention would assist Ms Eweida. It referred to the judgment of the
House of Lords in R (SB) v Governors of Denbigh
High School [2006] UKHL 15, where Lord Bingham analysed the case-law of the
Court and Commission and concluded:
“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”.
17. On 26 May 2010 the
Supreme Court refused Ms Eweida leave to appeal.
B. Ms Chaplin
18. The second applicant is
also a practising Christian. She has worn a cross visibly on a chain around her
neck since her confirmation in 1971, as an expression of her belief. She
believes that to remove the cross would be a violation of her faith.
19. Ms Chaplin qualified as a
nurse in 1981 and was employed by the Royal Devon and Exeter NHS Foundation
Trust, a State hospital, from April 1989 to July 2010, with an exceptional
employment history. At the time of the events in question she worked on a
geriatric ward. The hospital had a uniform policy, based on guidance from the
Department of Health. The hospital’s uniform policy provided in paragraph 5.1.5
that “If worn, jewellery must be discreet” and in paragraph 5.3.6:
“5.3.6 To minimise the risk of
cross infection will be [sic] keep jewellery to a minimum (see 5.1.11). That
is:
One plain
smooth ring which will not hinder hand hygiene,
One pair of plain discreet earrings.
No necklaces will be worn to reduce
the risk of injury when handling patients.
Facial piercing if present should be
removed or covered.”
Paragraph 5.1.11 provided:
“Any member of staff who wishes to wear
particular types of clothes or jewellery for religious or cultural reasons must
raise this with their line manager who will not unreasonably withhold
approval.”
There was evidence before the Employment
Tribunal that, on health and safety grounds, another Christian nurse had been
requested to remove a cross and chain and two Sikh nurses had been informed
that they could not wear a bangle or kirpan, and that they had complied with
these instructions. Two female Muslim doctors were given permission to wear
close-fitting “sports” hijab, resembling a balaclava helmet.
20. In June 2007 new uniforms
were introduced at the hospital, which for the first time included a V-necked
tunic for nurses. In June 2009 Ms Chaplin’s manager requested her to
remove her “necklace”. Ms Chaplin insisted that the cross was a religious symbol
and sought approval to wear it. This was refused, on the ground that the chain
and cross might cause injury if an elderly patient pulled on it. Ms Chaplin
then proposed wearing the cross on a chain secured with magnetic catches, which
would immediately break apart if pulled by a patient. However, the health
authority rejected this on the ground that the cross itself would still create
a risk to health and safety if it were able to swing free; for example, it
could come into contact with open wounds. Finally, it was suggested that she
could secure her cross and chain to the lanyard which held her identity badge.
All staff were required to wear an identity badge clipped to a pocket or on a
lanyard. However, they were also required to remove the badge and lanyard when
performing close clinical duties and, for this reason, the applicant rejected
this suggestion also. In November 2009 Ms Chaplin was moved to a non-nursing
temporary position which ceased to exist in July 2010.
21. She applied to the
Employment Tribunal in November 2009, complaining of both direct and indirect
discrimination on religious grounds. In its judgment of 21 May 2010, the
Employment Tribunal held that there was no direct discrimination since the
hospital’s stance was based on health and safety rather than religious grounds.
As regards the complaint of indirect discrimination, it held that there was no
evidence that “persons”, other than the applicant, had been put at particular
disadvantage. Moreover, the hospital’s response to Ms Chaplin’s request to wear
the crucifix visibly had been proportionate.
22. The applicant was advised
that, in the light of the Court of Appeal’s judgment in the Ms Eweida’s case,
an appeal on points of law to the Employment Appeal Tribunal would have no
prospect of success.
C. Ms Ladele
23. The third applicant is a
Christian. She holds the view that marriage is the union of one man and one
woman for life, and sincerely believes that same-sex civil partnerships are
contrary to God’s law.
24. Ms Ladele was employed by
the London Borough of Islington, a local public authority, from 1992. Islington
had a “Dignity for All” equality and diversity policy, which stated inter alia:
“Islington is proud of its diversity and the
council will challenge discrimination in all its forms. ‘Dignity for all’
should be the experience of Islington staff, residents and service users,
regardless of the age, gender, disability, faith, race, sexuality, nationality,
income or health status. ...
The council will promote community cohesion
and equality for all groups but will especially target discrimination based on
age, disability, gender, race, religion and sexuality. ...
In general, Islington will:
(a)
Promote community cohesion by promoting shared community values and
understanding, underpinned by equality, respect and dignity for all. ...
It is the council’s policy that everyone
should be treated fairly and without discrimination. Islington aims to ensure
that:
·
Staff
experience fairness and equity of treatment in the workplace
·
Customers
receive fair and equal access to council services
·
Staff
and customers are treated with dignity and respect
The council will actively remove
discriminatory barriers that can prevent people from obtaining the employment
opportunities and services to which they are entitled. The council will not tolerate
processes, attitudes and behaviour that amount to discrimination, including
harassment, victimisation and bullying through prejudice, ignorance,
thoughtlessness and stereotyping. ...
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.”
25. In 2002 Ms Ladele became
a registrar of births, deaths and marriages. Although she was paid by the local
authority and had a duty to abide by its policies, she was not employed by it
but instead held office under the aegis of the Registrar General. The Civil
Partnership Act 2004 came into force in the United Kingdom on 5 December 2005.
The Act provided for the legal registration of civil partnerships between two
people of the same sex, and accorded to them rights and obligations equivalent
to those of a married couple. In December 2005 Islington decided to designate
all existing registrars of births, deaths and marriages as civil partnership
registrars. It was not required to do this; the legislation simply required it
to ensure that there was a sufficient number of civil partnership registrars
for the area to carry out that function. Some other United Kingdom local
authorities took a different approach, and allowed registrars with a sincerely
held religious objection to the formation of civil partnerships to opt out of
designation as civil partnership registrars.
26. Initially, Ms Ladele was
permitted to make informal arrangements with colleagues to exchange work so
that she did not have to conduct civil partnership ceremonies. In March 2006,
however, two colleagues complained that her refusal to carry out such duties
was discriminatory. In a letter dated 1 April 2006 Ms Ladele was informed that,
in the view of the local authority, refusing to conduct civil partnerships
could put her in breach of the Code of Conduct and the equality policy. She was
requested to confirm in writing that she would henceforth officiate at civil
partnership ceremonies. The third applicant refused to agree, and requested
that the local authority make arrangements to accommodate her beliefs. By May
2007 the atmosphere in the office had deteriorated. Ms Ladele’s refusal to
carry out civil partnerships was causing rota difficulties and putting a burden
on others and there had been complaints from homosexual colleagues that they
felt victimised. In May 2007 the local authority commenced a preliminary
investigation, which concluded in July 2007 with a recommendation that a formal
disciplinary complaint be brought against Ms Ladele that, by refusing to carry
out civil partnerships on the ground of the sexual orientation of the parties,
she had failed to comply with the local authority’s Code of Conduct and
equality and diversity policy. A disciplinary hearing took place on 16 August
2007. Following the hearing, Ms Ladele was asked to sign a new job description
requiring her to carry out straightforward signings of the civil partnership
register and administrative work in connection with civil partnerships, but
with no requirement to conduct ceremonies.
27. Ms Ladele made an
application to the Employment Tribunal, complaining of direct and indirect
discrimination on grounds of religion or belief and harassment. On 1 December
2007 the Statistics and Registration Act 2007 came into force and, instead of
remaining an office holder employed by the Registrar General, Ms Ladele became
an employee of the local authority, which now had the power to dismiss her. It
was advanced before the Employment Tribunal that if the applicant lost the
proceedings, it was likely that she would be dismissed.
28. On 3 July 2008, the
Tribunal upheld the complaints of direct and indirect religious discrimination,
and harassment, holding that the local authority had “placed a greater value on
the rights of the lesbian, gay, bisexual and transsexual community than it
placed on the rights of [Ms Ladele] as one holding an orthodox Christian
belief”. The local authority appealed to the Employment Appeal Tribunal, which
on 19 December 2008 reversed the decision of the Employment Tribunal. It
held that the local authority’s treatment of Ms Ladele had been a proportionate
means of achieving a legitimate aim, namely providing the registrar service on
a non-discriminatory basis.
29. The decision of the
Employment Appeal Tribunal was appealed to the Court of Appeal, which on 15
December 2009 upheld the Employment Appeal Tribunal’s conclusions. It stated,
at paragraph 52:
“...the fact that Ms Ladele’s refusal to
perform civil partnerships was based on her religious view of marriage could
not justify the conclusion that Islington should not be allowed to implement
its aim to the full, namely that all registrars should perform civil
partnerships as part of its Dignity for All policy. Ms Ladele was employed in a
public job and was working for a public authority; she was being required to
perform a purely secular task, which was being treated as part of her job; Ms
Ladele’s refusal to perform that task involved discriminating against gay
people in the course of that job; she was being asked to perform the task
because of Islington’s Dignity for All policy, whose laudable aim was to avoid,
or at least minimise, discrimination both among Islington’s employees, and as
between Islington (and its employees) and those in the community they served;
Ms Ladele’s refusal was causing offence to at least two of her gay colleagues;
Ms Ladele’s objection was based on her view of marriage, which was not a core
part of her religion; and Islington’s requirement in no way prevented her from
worshipping as she wished.”
The Court of Appeal concluded that Article 9
of the Convention and the Court’s case-law supported the view that Ms Ladele’s
desire to have her religious views respected should not be allowed “...to
override Islington’s concern to ensure that all its registrars manifest equal
respect for the homosexual community as for the heterosexual community.” It
further noted that from the time the 2007 Regulations (see paragraph 42 below)
came into force, once Ms Ladele was designated a Civil Partnership Registrar,
Islington was not merely entitled, but obliged, to require her to perform civil
partnerships.
30. The applicant’s
application for leave to appeal to the Supreme Court was refused on 4 March
2010.
D. Mr McFarlane
31. The fourth applicant is a
practising Christian, and was formerly an elder of a large multicultural church
in Bristol. He holds a deep and genuine belief that the Bible states that
homosexual activity is sinful and that he should do nothing which directly
endorses such activity.
32. Relate Avon Limited
(“Relate”) is part of the Relate Federation, a national private organisation
which provides a confidential sex therapy and relationship counselling service.
Relate and its counsellors are members of the British Association for Sexual
and Relationship Therapy (BASRT). That Association has a Code of Ethics and
Principles of Good Practice which Relate and its counsellors abide by.
Paragraphs 18 and 19 of the Code provide as follows:
“Recognising the right to
self-determination, for example:
18. Respecting the autonomy and
ultimate right to self-determination of clients and of others with whom clients
may be involved. It is not appropriate for the therapist to impose a particular
set of standards, values or ideals upon clients. The therapist must
recognise and work in ways that respect the value and dignity of clients (and
colleagues) with due regard to issues such as religion, race, gender, age,
beliefs, sexual orientation and disability.
Awareness of one’s own prejudices, for example:
19. The
therapist must be aware of his or her own prejudices and avoid discrimination,
for example on grounds of religion, race, gender, age, beliefs, sexual orientation,
disability. The therapist has a responsibility to be aware of his or her own
issues of prejudice and stereotyping and particularly to consider ways in which
this may be affecting the therapeutic relationship.”
Relate also has an Equal Opportunities Policy
which emphasises a positive duty to achieve equality. Part of it reads:
“Relate Avon is committed to ensuring that no
person – trustees, staff, volunteers, counsellors and clients, receives less
favourable treatment on the basis of personal or group characteristics, such as
race, colour, age, culture, medical condition, sexual orientation, marital
status, disability [or] socio-economic grouping. Relate Avon is not only
committed to the letter of the law, but also to a positive policy that will
achieve the objective of ensuring equality of opportunity for all those who
work at he Centre (whatever their capacity), and all our clients.”
33. Mr McFarlane worked for
Relate as a counsellor from May 2003 until March 2008. He initially had some
concerns about providing counselling services to same-sex couples, but following
discussions with his supervisor, he accepted that simply counselling a
homosexual couple did not involve endorsement of such a relationship and he was
therefore prepared to continue. He subsequently provided counselling services
to two lesbian couples without any problem, although in neither case did any
purely sexual issues arise.
34. In 2007 Mr McFarlane
commenced Relate’s post-graduate diploma in psycho-sexual therapy. By the
autumn of that year there was a perception within Relate that he was unwilling
to work on sexual issues with homosexual couples. In response to these concerns,
Relate’s General Manager, a Mr B, met with Mr McFarlane in October 2007. The
applicant confirmed he had difficulty in reconciling working with couples on
same‑sex sexual practices and his duty to follow the teaching of the
Bible. Mr B expressed concern that it would not be possible to filter
clients, to prevent Mr McFarlane from having to provide psycho-sexual therapy
to lesbian, gay or bisexual couples.
35. On 5 December 2007 Mr B
received a letter from other therapists expressing concerns that an unnamed
counsellor was unwilling, on religious grounds, to work with gay, lesbian and
bi-sexual clients. On 12 December 2007 Mr B wrote to Mr McFarlane stating that
he understood that he had refused to work with same-sex couples on certain
issues, and that he feared that this was discriminatory and contrary to
Relate’s Equal Opportunities Policies. He asked for written confirmation by 19
December 2007 that Mr McFarlane would continue to counsel same-sex couples
in relationship counselling and psycho-sexual therapy, failing which he
threatened disciplinary action. On 2 January 2008 Mr McFarlane responded by
confirming that he had no reservations about counselling same-sex couples. His
views on providing psycho-sexual therapy to same-sex couples were still
evolving, since he had not yet been called upon to do this type of work. Mr B
interpreted this as a refusal by Mr McFarlane to confirm that he would carry
out psycho-sexual therapy work with same-sex couples and he therefore suspended
him, pending a disciplinary investigation. At an investigatory meeting on 7
January 2008 the applicant acknowledged that there was a conflict between his
religious beliefs and psycho-sexual therapy with same-sex couples, but said
that if he were asked to do such work, then he would do so and if any problems
arose then he would speak to his supervisor. Mr B understood by this that Mr
McFarlane undertook to comply with Relate’s policies, and he therefore halted
the disciplinary investigation.
36. Following a telephone
conversation with the fourth applicant, his supervisor contacted Mr B to
express deep concern. She considered that Mr McFarlane was either confused
over the issue of same-sex psycho- sexual therapy or was being dishonest. When
these concerns were put to him, Mr McFarlane stated that his views had not
changed since the earlier discussion and that any issue would be addressed as
it arose. He was called to a further disciplinary meeting on 17 March 2008, at
which he was asked whether he had changed his mind, but he simply replied that
he had nothing further to add to what he had said on 7 January 2008.
37. On 18 March 2008 Mr B
dismissed Mr McFarlane summarily for gross misconduct, having concluded that
the applicant had said he would comply with Relate’s policies and provide
sexual counselling to same-sex couples without having any intention of doing
so. He could therefore not be trusted to perform his role in compliance with
the Equal Opportunities Policies. An appeal meeting took place on 28 April. The
appeal was rejected on the basis that Mr B’s lack of trust in Mr McFarlane to
comply with the relevant policies was justified.
38. Mr McFarlane lodged a
claim with the Employment Tribunal, claiming, inter alia, direct and indirect discrimination, unfair dismissal,
and wrongful dismissal. The Tribunal pronounced its judgment on 5 January 2009.
It found that Mr McFarlane had not suffered direct discrimination contrary to
Regulation 3(1)(a) of the 2003 Regulations (see paragraph 41 below). He had not
been dismissed because of his faith, but because it was believed that he would
not comply with the policies which reflected Relate’s ethos. With regard to the
claim of indirect discrimination under Regulation 3(1)(b), the Tribunal found
that Relate’s requirement that its counsellors comply with its Equal
Opportunities Policy would put an individual who shared Mr McFarlane’s
religious beliefs at a disadvantage. However, the aim of the requirement was
the provision of a full range of counselling services to all sections of the
community, regardless of sexual orientation, which was legitimate. Relate’s
commitment to providing non-discriminatory services was fundamental to its work
and it was entitled to require an unequivocal assurance from Mr McFarlane that
he would provide the full range of counselling services to the full range of
clients without reservation. He had failed to give such an assurance.
Filtration of clients, although it might work to a limited extent, would not
protect clients from potential rejection by Mr McFarlane, however tactfully he
might deal with the issue. It followed that his dismissal had been a
proportionate means of achieving a legitimate aim. The discrimination claim,
therefore, failed. Finally, the Tribunal rejected the claim of unfair dismissal,
finding that Relate had genuinely and reasonably lost confidence in Mr
McFarlane to the extent that it could not be sure that, if presented with
same-sex sexual issues in the course of counselling a same-sex couple, he would
provide without restraint or reservation the counselling which the couple
required because of the constraints imposed on him by his genuinely held
religious beliefs.
39. Mr McFarlane appealed to
the Employment Appeal Tribunal against the Tribunal’s findings in relation to
direct and indirect discrimination and unfair dismissal. On 30 November 2009
the Employment Appeal Tribunal held that the Tribunal had been correct to dismiss
the claims. It rejected Mr McFarlane’s argument that it was not legitimate
to distinguish between objecting to a religious belief and objecting to a
particular act which manifested that belief, and held that such an approach was
compatible with Article 9 of the Convention. It noted Relate’s arguments that
the compromise proposed by Mr McFarlane would be unacceptable as a matter of
principle because it ran “entirely contrary to the ethos of the organisation to
accept a situation in which a counsellor could decline to deal with particular
clients because he disapproved of their conduct”, and that it was not
practicable to operate a system under which a counsellor could withdraw from
counselling same-sex couples if circumstances arose where he believed that he
would be endorsing sexual activity on their part. Relate was entitled to refuse
to accommodate views which contradicted its fundamental declared principles. In
such circumstances, arguments concerning the practicability of accommodating
the applicant’s views were out of place.
40. Mr McFarlane applied to
the Court of Appeal for permission to appeal against the decision of the
Employment Appeal Tribunal. On 20 January 2010 the Court of Appeal refused
the application on the basis that there was no realistic prospect of the appeal
succeeding in the light of the Court of Appeal judgment of December
II. RELEVANT DOMESTIC LAW
41. Regulation 3 of the
Employment Equality (Religion or Belief) Regulations 2003 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 –
....
(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.”
Regulation 2(1) provides that “religion”
means any religion and “belief” means any religious or philosophical belief.
42. Regulation 3 of the
Equality Act (Sexual Orientation) Regulations 2007 provides:
“3. Discrimination on grounds of sexual orientation
(1) For the purposes of these Regulations, a person (‘A’) discriminates
against another (‘B’) if, on grounds of the sexual orientation of B or any
other person except A, A treats B less favourably than he treats or would treat
others (in cases where there is no material difference in the relevant
circumstances).
....
(3) For the purposes of these Regulations, a person (‘A’) discriminates
against another (‘B’) if A applies to B a provision, criterion or practice –
(a) which he applies or would apply equally to persons not of B’s sexual
orientation,
(b) which puts persons of B’s sexual orientation at a disadvantage
compared to some or all others (where there is no material difference in the
relevant circumstances),
(c) which puts B at a disadvantage compared to some or all persons who
are not of his sexual orientation (where there is no material difference in the
relevant circumstances), and
(d) which A cannot reasonably justify by reference to matters other than
B’s sexual orientation.”
In connection with the
provision of goods, services and facilities, Regulation 4 provides:
“(1) It is unlawful for a person (‘A’) concerned with the provision to
the public or a section of the public of goods, facilities or services to discriminate
against a person (‘B’) who seeks to obtain or to use those goods, facilities or
services—
(a) by refusing to
provide B with goods, facilities or services,
(b) by refusing to
provide B with goods, facilities or services of a quality which is the same as
or similar to the quality of goods, facilities or services that A normally
provides to—
(i) the public, or
(ii) a section of the
public to which B belongs,
(c) by refusing to
provide B with goods, facilities or services in a manner which is the same as
or similar to that in which A normally provides goods, facilities or services
to—
(i) the public, or
(ii) a section of the
public to which B belongs, or
(d) by refusing to
provide B with goods, facilities or services on terms which are the same as or
similar to the terms on which A normally provides goods, facilities or services
to—
(i) the public, or
(ii) a section of the
public to which B belongs.
(2) Paragraph (1)
applies, in particular, to—
(a) access to and use of
a place which the public are permitted to enter,
(b) accommodation in a
hotel, boarding house or similar establishment,
....”
Regulation 8(1) provides
that it is unlawful for a public authority exercising a function to do any act
which constitutes discrimination. Regulation 30 provides that anything done by
a person in the course of his employment shall be treated as done by the
employer as well as by the person.
43. The
EU Framework Directive
for Equal Treatment in Employment and Occupation 2007/78/EC underlies both of
these sets of regulations. In dealing with the concept of discrimination, it
provides in Article 2(2)(b) that:
“... indirect
discrimination shall be taken to occur where an apparently neutral provision,
criterion or practice would put persons having a particular religion or belief,
a particular disability, a particular age, or a particular sexual orientation
at a particular disadvantage compared with other persons unless:
(i) that provision,
criterion or practice is objectively justified by a legitimate aim and the
means of achieving that aim are appropriate and necessary, or
(ii) as regards persons
with a particular disability, the employer or any person or organisation to
whom this Directive applies, is obliged, under national legislation, to take
appropriate measures in line with the principles contained in Article
44. Within
the
45. In
R (Williamson and Others) v. Secretary of
State for Education and Employment
[2005] UKHL 15 the claimants complained that the
“... a belief must
satisfy some modest, objective minimum requirements. These threshold
requirements are implicit in article 9 of the European Convention and
comparable guarantees in other human rights instruments. The belief must be
consistent with basic standards of human dignity or integrity. Manifestation of
a religious belief, for instance, which involved subjecting others to torture
or inhuman punishment would not qualify for protection. The belief must relate
to matters more than merely trivial. It must possess an adequate degree of
seriousness and importance. As has been said, it must be a belief on a
fundamental problem. With religious belief this prerequisite is readily
satisfied. The belief must also be coherent in the sense of being intelligible
and capable of being understood. But, again, too much should not be demanded in
this regard. Typically, religion involves belief in the supernatural. It is not
always susceptible to lucid exposition or, still less, rational justification.
The language used is often the language of allegory, symbol and metaphor.
Depending on the subject matter, individuals cannot always be expected to
express themselves with cogency or precision. Nor are an individual’s beliefs
fixed and static. The beliefs of every individual are prone to change over his
lifetime. Overall, these threshold requirements should not be set at a level
which would deprive minority beliefs of the protection they are intended to
have under the Convention....”
Later, at paragraph 32, his Lordship
continued:
“... in deciding whether... conduct
constitutes manifesting a belief in practice for the purposes of article 9 one
must first identify the nature and scope of the belief. If... the belief takes
the form of a perceived obligation to act in a specific way, then, in principle,
doing that act pursuant to that belief is itself a manifestation of that belief
in practice. In such cases the act is ‘intimately linked’ to the belief, in the
Strasbourg phraseology....”
46. The case of R (Begum) v. Headteacher and Governors of Denbigh
High School [2006] UKHL 15 concerned a claim that the claimant’s exclusion
from school, due to repeated violations of the uniform code, unjustifiably
limited, inter alia, her right under
Article 9 of the Convention to manifest her religion and beliefs. Lord Bingham,
dealing with the question of whether there had been an interference with the
claimant’s right under Article 9, said this at paragraphs 23 and 24:
“23. 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. Thus in X v Denmark
(1976) 5 DR
24. This
line of authority has been criticised by the Court of Appeal as overly
restrictive (Copsey v WWB Devon Clays Ltd 2005 EWCA Civ 932, [2005] 1CR
1789, paras 31-39, 44-66), and in [R (Williamson) v Secretary of State for
Education and Employment [2005] UKHL 15], para 39, the House questioned
whether alternative means of accommodating a manifestation of religions belief
had, as suggested in the Jewish Liturgical case, above, para 80, to be ‘impossible’
before a claim of interference under article 9 could succeed. But the
authorities do in my opinion support the proposition with which I prefaced para
23 of this opinion. Even if it be accepted that the Strasbourg institutions
have erred on the side of strictness in rejecting complaints of interference,
there remains a coherent and remarkably consistent body of authority which our
domestic courts must take into account and which shows that interference is not
easily established.”
III. RELEVANT COMPARATIVE LAW
A. Council of Europe Member States
47. An analysis of the law
and practice relating to the wearing of religious symbols at work across
twenty-six Council of Europe Contracting States demonstrates that in the
majority of States the wearing of religious clothing and/or religious symbols
in the workplace is unregulated. In three States, namely Ukraine, Turkey and
some cantons of Switzerland, the wearing of religious clothing and/or religious
symbols for civil servants and other public sector employees is prohibited, but
in principle it is allowed to employees of private companies. In five States -
Belgium, Denmark, France, Germany and the Netherlands - the domestic courts
have expressly admitted, at least in principle, an employer’s right to impose
certain limitations upon the wearing of religious symbols by employees; however,
there are neither laws nor regulations in any of these countries expressly
allowing an employer to do so. In France and Germany, there is a strict ban on
the wearing of religious symbols by civil servants and State employees, while
in the three other countries the attitude is more flexible. A blanket ban on
wearing religious clothing and/or symbols at work by private employees is not
allowed anywhere. On the contrary, in France it is expressly prohibited by law.
Under French legislation, in order to be declared lawful any such restriction
must pursue a legitimate aim, relating to sanitary norms, the protection of
health and morals, the credibility of the company’s image in the eyes of the
customer, as well as pass a proportionality test.
B. Third countries
1. The United States of America
48. For civil servants and
Government employees, the wearing of religious symbols is protected under both
the United States Constitution (the Establishment Clause and the Free Exercise
Clause) and the Civil Rights Act 1964. When a constitutional claim is made by a
public employee, the courts apply the standard of intermediate scrutiny, under
which the Government can impose restrictions on the wearing of religious
symbols if the action is “substantially related” to promoting an “important”
Government interest (see Tenafly Eruv
Association v. Borough of Tenafly,
2. Canada
49. Religious freedom is
constitutionally protected under the Canadian Charter of Rights and Freedoms
1982 (the Charter). Section 1 of the Charter provides the state with authority
to infringe on freedom of religion in the least restrictive way possible for a
“compelling government interest” (see B(R)
v. Children’s Aid Society of Metropolitan Toronto (1995) 1 SCR 315).
Canadian employers, in general, are expected to adjust workplace regulations
that have a disproportionate impact on certain religious minorities. The
standard applied by the courts in this connection is that of “reasonable
accommodation” (see R v Big M Drug Mart
Limited (1985) 1 SCR 295). Recent litigation on this point has centred on
the rights of Sikh persons to wear a turban or kirpan at work. In Bhinder v. Canadian National Railway Co.
(1985) 2 SCR 561, the Supreme Court determined that the claimant could not wear
a turban at work because it interfered with his capacity to wear a hard helmet.
This was found to represent a “bona fide
occupational requirement”. The Canadian courts, rather than purporting to
define a religion or religious practice, are more interested in the sincerity
of the belief in a practice that has a nexus with a religion (see Syndicat Northcrest v. Amselem (2004) 2
SCR 551). In Multani v. Commission
scolaire Marguerite-Bourgeoys (2006) 1 SCR
THE LAW
I. JOINDER OF APPLICATIONS
50. Given that the
applications at hand raise related issues under the Convention, the Court
decides to join them pursuant to Rule 42 § 1 of the Rules of Court.
II. ADMISSIBILITY
51. The first, second and
fourth applicants complained that the sanctions they suffered at work breached
their rights under Article 9 of the Convention, taken alone or in conjunction
with Article 14. The third applicant complained of a breach of Articles 14 and
9 taken together.
Article 9 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.”
Article 14 provides:
“The enjoyment of the rights and freedoms set
forth in [the] 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.”
52. The Government disagreed,
and invited the Court to find the applications inadmissible or, in the
alternative, to find that there had been no violation of the above Articles. In
particular, they submitted that the second applicant had failed to exhaust
domestic remedies and that her application should therefore be declared inadmissible.
They pointed out that she had not sought to bring an appeal to the Employment
Appeal Tribunal from the decision of the Employment Tribunal of 6 April 2010,
dismissing her claim of religious discrimination under the 2003 Regulations. Her
case was different from Eweida.
Unlike the first applicant, the second applicant was employed by a public
authority and could have pursued her arguments under Article 9 of the
Convention directly before the national courts. Moreover, the second applicant
complained that she was treated less favourably than Sikh and Muslim colleagues,
but she did not appeal against the Employment Tribunal’s finding that her claim
of direct discrimination was not made out on the evidence before it.
53. The second applicant
argued that the Court of Appeal’s judgment in Eweida had been decisive for her case and meant that any further
appeals brought by her would have had no prospect of success and would just
have wasted time and money.
54. The Court recalls that
the purpose of the rule in Article 35 is to afford the Contracting States the
opportunity of preventing or putting right the violations alleged against them
before those allegations are submitted to the Convention institutions. The rule
is based on the assumption, reflected in Article 13 of the Convention, that
there is an effective remedy available in the domestic system in respect of the
alleged breach. In this way, it is an important aspect of the principle that
the machinery of protection established by the Convention is subsidiary to the
national systems safeguarding human rights (see, amongst many other examples, Selmouni v. France ([GC], no.
25803/94, § 74, ECHR 1999 V). When deciding whether or not an applicant should
be required to exhaust a particular remedy, the Court has held that mere doubts
on her part as to its effectiveness will not absolve her from attempting it.
However, an applicant is not required to use a remedy which, “according to
settled legal opinion existing at the relevant time”, offers no reasonable
prospects of providing redress for her complaint (see D. v. Ireland (dec.), no. 26499/02, §§ 89 and 91, 28 June 2006 and Fox v. the United Kingdom (dec.), no. 61319/09,
§§ 41-42, 20 March 2012).
55. In the present case, the
Court agrees with the Government that, to the extent that the second applicant
complains under Articles 9 and 14 of direct discrimination, she has failed to
exhaust domestic remedies. The Employment Tribunal held that it was not
established on the evidence before it that Sikh and Muslim medical staff who
wished to wear religious clothing and other items were treated more favourably
than Christians by the heath authority. It is clear that, if the applicant had
grounds on which to challenge these findings of fact, she would have been able
to raise them in an appeal to the Employment Appeal Tribunal. Since she did not
bring such an appeal, this part of the application is inadmissible under
Article 35.
56. However, the Court does
not find it established that the applicant had available an effective domestic
remedy in respect of her principal complaint under Article 9, that the
requirement to remove or cover her cross amounted to a disproportionate
interference with her right to manifest her religious belief. The Court of
Appeal in Eweida was clear that
Article 9 was inapplicable since the restriction on wearing a cross visibly at
work did not constitute an interference with the manifestation of religious
belief. The Court does not find it established that, had the second applicant
also sought to appeal to the Employment Appeal Tribunal and the Court of Appeal,
her case would have been decided differently on this point.
57. Leaving aside the second
applicant’s complaint about direct discrimination, the Court finds that the
remainder of her complaints, and those of the first, third and fourth
applicants, are not manifestly ill-founded within the meaning of Article 35 § 3
(a) of the Convention nor inadmissible on other grounds. The Court therefore
declares admissible the first, third and fourth applicants’ complaints and the
second applicant’s complaint partially admissible.
III. MERITS
A. The parties’ arguments
1. The Government
58. In respect of the
complaints by the first, second and fourth applicants under Article 9 taken
alone, the Government relied on case-law of the Court to the effect that the
provision does not protect each and every act or form of behaviour motivated or
inspired by religion or belief. They argued that behaviour which was motivated
or inspired by religion or belief, but which was not an act of practice of a
religion in a generally recognised form, fell outside the protection of Article
9. The Government referred to the undisputed findings of the Employment
Tribunal in respect of the first and second applicants, that each wished to
wear the cross visibly as a personal expression of faith. It was not suggested
that the visible wearing of a cross was a generally recognised form of
practising the Christian faith, still less one that was regarded as a mandatory
requirement. The first and second applicants’ desire to wear a visible cross,
while it may have been inspired or motivated by a sincere religious commitment,
was not a recognised religious practice or requirement of Christianity, and did
not therefore fall within the scope of Article 9. Similarly, Mr McFarlane’s
objection to providing psycho-sexual therapy to same-sex couples could not be
described as the practice of religion in a generally recognised form.
59. In the alternative, the
Government argued that even if the visible wearing of the cross, or the refusal
to offer specific services to homosexual couples, were a manifestation of
belief and thus a right protected by Article 9, there had been no
interference with this right in respect of any of the applicants. They referred
to the House of Lords’ judgment R (Begum)
v. Governors of Denbigh High School (see paragraph 46 above), where
Lord Bingham analysed the Strasbourg jurisprudence applicable to cases where
individuals voluntarily accept employment that does not accommodate religious
practice, but where there are other means open to them to practise or observe
their religion without undue hardship or inconvenience. Lord Bingham had
concluded that the Strasbourg case-law formed a “coherent and remarkably
consistent body of authority” which made clear that there would be no interference
with Article
60. The Government further
emphasised that the first and fourth applicants were employed by private
companies. Their complaints did not, therefore, involve any allegation of
direct interference by the State, but instead the claim that the State did not
do all that was required of it under Article 9 to ensure that their private
employers permitted them to give expression to their religious beliefs at work.
The Government underlined that the possibility of positive obligations being
imposed by Article 9 should only be countenanced where the State’s failure to
adopt measures prevented an individual from freely practising his or her
religion. To date there was only one case where the Court had found a State in
breach of a positive obligation under Article 9, namely Members of the Gldani Congregation of
Jehovah’s Witnesses and Others v. Georgia, no. 71156/01, 3
May 2007, where the State authorities had taken no action following a violent
attack on a congregation of Jehovah’s Witnesses by a group of Orthodox
believers. The present applications were not comparable. The fact that these
applicants were free to resign and seek employment elsewhere, or to practise
their religion outside work, was sufficient to guarantee their Article 9 rights
under domestic law. In any event, even if the State did have some positive
obligation under Article
61. In
the alternative under Article 9 the Government argued that the measures taken
by the employers had been proportionate to a legitimate aim in each case. As
regards the first applicant, British Airways was entitled to conclude that the
wearing of a uniform played an important role in maintaining a professional
image and strengthening recognition of the company brand, and it had a
contractual right to insist its employees wore a uniform. Prior to the events
in question, the restriction on visible items being worn around the neck had
caused no known problem among its large uniformed workforce. The first
applicant did not raise her objection to the uniform code by seeking its
revision, or an authorisation to wear a cross, but instead turned up for work
in breach of it. While British Airways was considering the applicant’s
grievance complaint, it offered her a post on identical pay with no customer
contact, but she chose instead to stay at home. In November 2006, five months
after the first applicant had launched the grievance procedure, British Airways
announced a review of its policy on the wearing of visible religious symbols
and, following consultation with staff members and trade union representatives,
a new policy was adopted in January 2007, permitting the wearing of visible
religious symbols.
62. In
relation to the second applicant, the Government emphasised that the purpose of
the restriction was to reduce the risk of injury when handling patients.
Restrictions were also placed on the wearing of religious items by
non-Christians on health and safety grounds: for example, Sikh nurses were not
allowed to wear the kara bracelet or the kirpan sword, and Muslim nurses had to
wear closely fitted, rather than flowing, hijab. This was a legitimate aim,
pursued in a proportionate manner, particularly as the health trust had offered
the second applicant a non-clinical post on the same pay.
63. The
Government accepted that the third applicant sincerely believed that civil
partnerships were contrary to God’s law and that Mr McFarlane sincerely
believed that homosexual activity was sinful and that he should do nothing
directly to endorse it. However, the Government also recognised that the London
Borough of Islington and Relate were committed to the provision of services on
a non-discriminatory basis. This was plainly a legitimate aim for a local
authority or a relationship counselling service to pursue. It was proportionate
to that aim in each case for the employer to require all employees to perform
their roles without discriminating on grounds of sexual orientation. The 2003
Regulations and the 2007 Regulations (see paragraphs 41-42 above) struck a
balance in the United Kingdom between the right to manifest religious beliefs
and the rights of individuals not to be discriminated against on grounds of
sexual orientation. It was a matter falling within the margin of appreciation
allowed to the national authorities under Article 9 exactly how that balance
should be struck. Moreover, the Court should take the same approach towards
proportionality and the margin of appreciation whether it considered these
cases under Article 9 alone or under Article 14 taken in conjunction with
Article 9.
2. The first applicant
64. The first applicant
submitted that the wearing of a visible cross was a generally recognised form
of practising Christianity. In any event, she further submitted that the
Government’s formulation of the test that must be satisfied to engage Article 9
by reference to an “act of practice of a religion in a generally recognised
form” was incorrect. Such a test was too vague to be workable in practice and
would require courts to adjudicate on matters of theological debate, which were
clearly outside the scope of their competence. Moreover, it was not supported
by the Court’s case-law.
65. In addition, she argued
that a restrictive interpretation as to what constituted an interference with
Article 9 rights would be inconsistent with the importance which the Court
placed on freedom of religion. No other fundamental right was subjected to the
doctrine that there would be no interference where it was possible for the
individual to avoid the restriction, for example by resigning and finding
another job, nor should an individual be considered to have “waived” his or her
rights by remaining in employment. The Court should interpret the Convention in
the light of current conditions. The availability to the applicant of any means
of avoiding the restriction should be taken into account under Article 9 § 2,
when considering whether the restriction was justified, rather than under
Article 9 § 1 as grounds for holding that there was no interference. In the
present case, there had clearly been an interference: the first applicant was
prohibited from wearing a cross visibly, which she considered to be the central
image of her faith; she found the enforcement of the uniform code deeply
humiliating and offensive; in addition, the loss of her salary for four months
created significant financial hardship.
66. The first applicant
submitted that domestic law, as it was interpreted and applied by the English
courts in her case, failed to give adequate protection to her rights under
Article 9. She was denied protection under national law for her entirely
sincere and orthodox desire to manifest her faith by wearing a cross, because
she was unable to adduce evidence that this was a scriptural requirement or a
widely practised manifestation of belief. In addition, the test under national
law based on the establishment of group disadvantage was legally uncertain and
inherently vulnerable to returning arbitrary results. The Court had never
suggested that a positive obligation on the State should only be imposed under
Article
3. The second applicant
67. The second applicant
argued that the visible wearing of a cross or crucifix was clearly an aspect of
the practice of Christianity in a generally recognised form. It was incorrect
to distinguish between “requirements” and “non-requirements” of a religion,
giving the protection of Article 9 only to religious “requirements”. Such an
approach would place the threshold for protection too high and it was
inconsistent with the approach of the domestic courts in such cases as R (Watkins Singh) v. Aberdare High School and
Williamson (see above) and this Court
in Moscow Branch of the Salvation Army v. Russia, no.
72881/01, ECHR 2006‑XI; Jakóbski v.
Poland, no. 18429/06, 7 December 2010; and Bayatyan v. Armenia [GC], no. 23459/03, ECHR 2011. Moreover, to hold that only mandatory
religious practices fell within the scope of Article 9 would give a higher
level of protection to religions which include specific rules which must be
adhered to, and a lower level of protection to religions without similar rules,
such as Christianity.
68. The second applicant
contested the Government’s argument that a requirement to remove or cover her
cross at work did not constitute an interference with her right to manifest her
religion or belief. While the earlier case-law of the Commission and Court
might support the Government’s contention, in more recent cases concerning
restrictions on the wearing of religious items in educational institutions and
at work the Court had found that there had been an interference (see, for
example, Dahlab v. Switzerland
(dec.), no. 42393/98, ECHR 2001‑V; Leyla Şahin, cited above; Dogru
v. France, no. 27058/05, 4 December 2008).
69. Finally,
the second applicant reasoned that the interference was not justified under
Article 9 § 2. Although the purported aim of the restriction was to reduce the
risk of injury when working with elderly patients, no evidence was adduced
before the Employment Tribunal to demonstrate that wearing the cross caused
health and safety problems. The second applicant further argued that these
facts gave rise to a breach of her rights under Article 14 taken in conjunction
with Article 9, relying on the alleged difference in the health authority’s
treatment of her compared to the followers of other religions (in respect of
which, see paragraph 55 above).
4. The
third applicant
70. The
third applicant complained under Article 14 taken in conjunction with Article 9,
rather than under Article 9 taken alone, because she considered that she had
been discriminated against on grounds of religion. She submitted that her acts,
for which she was disciplined, were a manifestation of her religion and that
the claim certainly reached the lower threshold required for applicability of
Article 14, namely that it fell within the ambit of Article 9. She further
contended that, in failing to treat her differently from those staff who did
not have a conscientious objection to registering civil partnerships, the local
authority indirectly discriminated against her. The local authority could
reasonably have accommodated her religious beliefs, and its refusal to adopt
less restrictive means was disproportionate under Articles 14 and 9.
71. The
third applicant contended that the Court should require “very weighty reasons” in
order to justify discrimination on grounds of religion. As with suspect
categories so far identified by the Court as requiring “very weighty reasons”
(such as sex, sexual orientation, ethnic origin and nationality) religious
faith constituted a core aspect of an individual’s identity. Moreover, race,
ethnicity and religion were often inter-connected and had been linked by the
Court (see Sejdić and Finci v. Bosnia
and Herzegovina [GC], nos. 27996/06 and 34836/06, § 43, ECHR 2009 and Cyprus v. Turkey [GC], no. 25781/94, § 309,
ECHR 2001‑IV).
72. The
third applicant accepted that the aims pursued by the local authority were
legitimate, namely to provide access to services, irrespective of sexual
orientation and to communicate a clear commitment to non-discrimination.
However, she did not consider that the Government had demonstrated that there
was a reasonable relationship of proportionality between these aims and the
means employed. She emphasised that she was employed as a marriage registrar
prior to the change in legislation permitting civil partnerships to be
established, and that the basis on which she was employed was fundamentally
altered. The local authority had had a discretion not to designate her as a
registrar of civil partnerships and could still have provided an efficient
civil partnership service while accommodating the applicant’s conscientious
objection. That objection was to participating in the creation of a legal
status based on an institution that she considered to be a marriage in all but
name; the applicant did not manifest any prejudice against homosexuals. In any
event, it could not be assumed that, had the local authority accommodated the
applicant, it would have been seen as approving of her beliefs. For example,
when the State permitted doctors whom it employed to opt out of performing
abortions, the State was not necessarily seen as approving of the doctors’
views; instead it was a sign of tolerance on the part of the State. In this
case, however, the local authority did not adequately take into account its
duty of neutrality. It failed to strike a balance between delivering the
service in a way which would not discriminate on grounds of sexual orientation,
while avoiding discriminating against its own employees on grounds of religion.
5. The fourth applicant
73. Mr McFarlane took issue
with the Government’s position that his adherence to Judeo-Christian sexual
morality was not a manifestation of religious belief, despite the fact that,
universally, religion promulgates clear moral and sexual boundaries. He
submitted that it was trite law to assert that not every act motivated or
inspired by religious belief is protected; this was true of any other
Convention right that could be limited, such as freedom of speech or the right
to respect for private life. The proper standard used by the Court was that any
interference with freedom of thought, conscience or religion had to be
necessary in a democratic society and proportionate to a legitimate aim being
pursued. When determining the margin of appreciation to be allowed to the State
in respect of restrictions on freedom of religion, the Court had to take into
account what was at stake, namely the need to maintain true religious pluralism,
which was inherent to the concept of a democratic society. The protection of
Article 9 would be empty of content if it did not go beyond merely safeguarding
private manifestation of faith or belief, in a generally recognised form, where
it was the State that determined this very issue.
74. Mr McFarlane emphasised
that dismissal from employment and damage to professional reputation was one of
the most severe sanctions that could be imposed on an individual, and this had
to be taken into account when determining the available margin of appreciation.
The applicant was employed by a private company which was not under any
statutory requirement to provide the service in question. It would have been
possible to refer homosexual clients to another counsellor. It was unrealistic
to require the applicant to change job or career because of his moral
opposition to homosexual behaviour; the same would not be required of a
homosexual who lost his job on discriminatory grounds.
6. The third parties
75. A total of twelve third
parties received permission under Rule 44 § 2 of the Rules of Court and Article
36 § 2 of the Convention to submit written comments (see paragraph 5 above).
76. A number of the
interveners submitted comments on the issue whether the wearing of the cross
could be considered a manifestation of religious belief. The submissions by the
Premier Christian Media Trust; Dr Peter Forster, Bishop of Chester;
Nicholas Reade, Bishop of Blackburn and Bishop Michael Nazir-Ali, in addition
to relying on the Court’s recent decision in Lautsi and Others v. Italy [GC], no. 30814/06, ECHR 2011 (extracts), observed that the cross is a
universally-recognised Christian symbol and a “self-evident manifestation” of
Christian faith. Further, along with the Equality and Human Rights Commission,
the Associazione “Giuseppi Dossetti: i Valori” and Lord Carey of Clifton, they
submitted that the proper approach to assessing manifestations of religious
belief was a subjective one. In particular, they argued, the idea of a
“mandatory requirement” was too high and overly-simplistic. The Premier
Christian Media Trust, the Associazione “Giuseppi Dossetti: i Valori” and
Bishop Michael Nazir-Ali invited the Court to find that it is not for the State
or an employer to assess the veracity of a religious conviction or
manifestation. The Equality and Human Rights Commission recommended that the
appropriate test, deriving from the Court’s more recent case-law, maintained a
primary focus on the conviction of the adherent. In contrast,
the National Secular Society indicated that the domestic courts made findings
of fact on the question whether any given religious practice was driven by a
“command of conscience” or by a “mere desire to express oneself”. They
suggested that the Court should be extremely reluctant to interfere with these
factual determinations.
77. On
the question when an interference with Article 9 will be found, the Equality and Human Rights
Commission submitted that the courts in the United Kingdom have, in effect,
guaranteed different levels of protection for individuals asserting a purely
religious identity as opposed to those whose religious and racial identities
are intertwined (see R (Watkins-Singh)
v. Governing Body of Aberdare Girls’ High School [2008] EWHC 1865
(Admin)). Additionally, they stressed that the question of interference must
take into account not only the choices a person has made, such as the choice of
particular employment, but also the actions of the employer. A number of other
interveners made clear their view that it was quite wrong for an employee to be
forced to make the invidious choice between his or her job and faith. The
National Secular Society took a different approach, emphasising that the
“freedom to resign is the ultimate guarantee of freedom of conscience”.
Building on this, they suggested that there existed no positive obligation on a
State to protect employees against uniform or other requirements.
78. In connection with the
question of proportionality and justification of an interference with Article
B. The Court’s assessment
1. General principles under
Article 9 of the Convention
79. The Court recalls that,
as enshrined in Article 9, freedom of thought, conscience and religion is one
of the foundations of a “democratic society” within the meaning of the
Convention. In its religious dimension it is one of the most vital elements
that go to make up the identity of believers and their conception of life, but
it is also a precious asset for atheists, agnostics, sceptics and the
unconcerned. The pluralism indissociable from a democratic society, which has
been dearly won over the centuries, depends on it (see Kokkinakis v. Greece, 25 May
1993, § 31, Series A no. 260‑A).
80. Religious freedom is primarily a
matter of individual thought and conscience. This aspect of the right set out
in the first paragraph of Article 9, to hold any religious belief and to
change religion or belief, is absolute and unqualified. However, as further set
out in Article 9 § 1, freedom of religion also encompasses the freedom to
manifest one’s belief, alone and in private but also to practice in community
with others and in public. The manifestation of religious belief may take the
form of worship, teaching, practice and observance. Bearing witness in words
and deeds is bound up with the existence of religious convictions (see Kokkinakis, cited above, § 31
and also Leyla Şahin v. Turkey [GC],
no. 44774/98, § 105, ECHR 2005‑XI). Since the manifestation by one person of his or her religious belief
may have an impact on others, the drafters of the Convention qualified this
aspect of freedom of religion in the manner set out in Article 9 § 2. This
second paragraph provides that any limitation placed on a person’s freedom to
manifest religion or belief must be prescribed by law and necessary in a
democratic society in pursuit of one or more of the legitimate aims set out
therein.
81. The
right to freedom of thought, conscience and religion denotes views that attain
a certain level of cogency, seriousness, cohesion and importance (see Bayatyan
v. Armenia [GC], no. 23459/03, § 110, ECHR 2011; Leela Förderkreis e.V. and Others v. Germany, no. 58911/00,
§ 80, 6 November 2008; Jakóbski
v. Poland, no. 18429/06, § 44, 7 December 2010). Provided this is satisfied, the State’s duty
of neutrality and impartiality is incompatible with any power on the State’s
part to assess the legitimacy of religious beliefs or the ways in which those
beliefs are expressed (see Manoussakis
and Others v. Greece, judgment of 26 September 1996, Reports 1996-IV,
p. 1365, § 47; Hasan and Chaush v. Bulgaria
[GC], no. 30985/96, § 78, ECHR 2000‑XI; Refah
Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98,
41342/98, 41343/98 and 41344/98, § 1, ECHR 2003-II).
82. Even where the belief in
question attains the required level of cogency and importance, it cannot be
said that every act which is in some way inspired, motivated or influenced by
it constitutes a “manifestation” of the belief. Thus, for example, acts or omissions which do not directly express the belief
concerned or which are only remotely connected to a precept of faith fall
outside the protection of Article 9 § 1 (see Skugar and Others v. Russia (dec.), no. 40010/04, 3 December 2009
and, for example, Arrowsmith v. the United Kingdom,
Commission’s report of 12 October 1978, Decisions and Reports 19, p. 5; C. v. the United Kingdom, Commission decision
of 15 December 1983, DR 37, p. 142; Zaoui v. Switzerland (dec.), no.
41615/98, 18 January 2001). In order to
count as a “manifestation” within the meaning of Article 9, the act in question
must be intimately linked to the religion or belief. An example would be an act of
worship or devotion which forms part of the practice of a religion or belief in
a generally recognised form. However, the manifestation of religion or belief
is not limited to such acts; the existence of a sufficiently close and direct
nexus between the act and the underlying belief must be determined on the facts
of each case. In particular, there is no requirement on the applicant to
establish that he or she acted in fulfilment of a
duty mandated by the religion in question (see Cha’are Shalom Ve Tsedek v. France [GC], no.
27417/95, §§ 73-74, ECHR 2000‑VII; Leyla
Şahin, cited above, §§ 78 and 105; Bayatyan, cited above, § 111; Skugar, cited above; Pichon
and Sajous v. France (dec.), no. 49853/99, Reports of Judgments and Decisions 2001-X).
83. It is true, as the
Government point out and as Lord Bingham observed in R (Begum) v. Governors of Denbigh High School case (see paragraph
46 above), that there is case-law of the Court and Commission which indicates that,
if a person is able to take steps to circumvent a limitation placed on his or
her freedom to manifest religion or belief, there is no interference with the
right under Article 9 § 1 and the limitation does not therefore require to be
justified under Article 9 § 2. For example, in the above-cited Cha’are Shalom Ve Tsedek case, the
Court held that “there would be interference with the freedom to manifest one’s
religion only if the illegality of performing ritual slaughter made it
impossible for ultra-orthodox Jews to eat meat from animals slaughtered in
accordance with the religious prescriptions they considered applicable”.
However, this conclusion can be explained by the Court’s finding that the
religious practice and observance at issue in that case was the consumption of
meat only from animals that had been ritually slaughtered and certified to
comply with religious dietary laws, rather than any personal involvement in the
ritual slaughter and certification process itself (see §§ 80 and 82). More
relevantly, in cases involving restrictions placed by employers on an
employee’s ability to observe religious practice, the Commission held in
several decisions that the possibility of resigning from the job and changing
employment meant that there was no interference with the employee’s religious
freedom (see, for example, Konttinen v.
Finland, Commission’s decision of 3 December 1996, Decisions and Reports
87-A, p. 68; Stedman v. the United
Kingdom, Commission’s decision of 9 April 1997; compare Kosteski v. “the former Yugoslav Republic of
Macedonia”, no. 55170/00, § 39, 13 April 2006). 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 (see, for example, Smith and Grady v. the United Kingdom, nos.
33985/96 and 33986/96, § 71, ECHR 1999‑VI; Vogt v. Germany, 26 September 1995, § 44, Series A no. 323; Young,
James and Webster v. the United Kingdom, 13 August 1981, §§ 54-55,
Series A no. 44). 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.
84. According
to its settled case-law, the Court leaves to the States party to the Convention
a certain margin of appreciation in deciding whether and to what extent an
interference is necessary. This margin of appreciation goes hand in hand with
European supervision embracing both the law and the decisions applying it. The
Court’s task is to determine whether the measures taken at national level were
justified in principle and proportionate (see Leyla Şahin, cited above,
§ 110; Bayatyan, cited above, §§ 121-122;
Manoussakis, cited
above, § 44). Where, as for the first and fourth applicants, the acts complained of were carried out by
private companies and were not therefore directly attributable to the
respondent State, the Court must consider the issues in terms of the positive
obligation on the State authorities to secure the rights under Article 9 to
those within their jurisdiction (see, mutatis
mutandis, Palomo Sánchez and
Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and
28964/06, §§ 58-61, ECHR 2011; see also Otto-Preminger-Institut
v. Austria judgment
of 25 November 1994, Series A no. 295, § 47). Whilst the
boundary between the State’s positive and negative obligations under the
Convention does not lend itself to precise definition, the applicable
principles are, nonetheless, similar. In both contexts regard must be had in
particular to the fair balance that has to be struck between the competing
interests of the individual and of the community as a whole, subject in any
event to the margin of appreciation enjoyed by the State (see Palomo Sánchez and Others, cited above,
§ 62).
2. General principles under
Article 14 of the Convention
85. The
Court recalls that Article 14 of the Convention has no independent existence,
since it has effect solely in relation to the rights and freedoms safeguarded
by the other substantive provisions of the Convention and its Protocols.
However, the application of Article 14 does not presuppose a breach of one or
more of such provisions and to this extent it is autonomous. For Article 14 to
become applicable it suffices that the facts of a case fall within the ambit of
another substantive provision of the Convention or its Protocols (see, for
example, Thlimmenos v. Greece [GC], no.
34369/97, § 40, ECHR 2000‑IV).
86. The Court has established
in its case-law that only differences in treatment based on an identifiable
characteristic, or “status”, are capable of amounting to discrimination within
the meaning of Article 14 (Carson and
Others v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010). “Religion” is
specifically mentioned in the text of Article 14 as a prohibited ground of
discrimination.
87. Generally, in order for
an issue to arise under Article 14 there must be a difference in the treatment
of persons in analogous, or relevantly similar, situations (Burden v. the United Kingdom [GC], no.
13378/05, § 60, ECHR 2008‑). However, this is not the only facet of the
prohibition of discrimination in Article 14. The right not to be discriminated
against in the enjoyment of the rights guaranteed under the Convention is also
violated when States, without an objective and reasonable justification, fail
to treat differently persons whose situations are significantly different (Thlimmenos, cited above, §
44; see also D.H. and Others v. the Czech Republic [GC],
no. 57325/00, § 175, ECHR 2007; Runkee and White v. the United Kingdom, nos. 42949/98
and 53134/99, § 35, 10 May 2007).
88. Such
a difference of treatment between persons in relevantly similar positions - or
a failure to treat differently persons in relevantly different situations - is
discriminatory if it has no objective and reasonable justification; in other
words, if it does not pursue a legitimate aim or if there is not a reasonable
relationship of proportionality between the means employed and the aim sought
to be realised. The Contracting State enjoys a margin of appreciation in
assessing whether and to what extent differences in otherwise similar
situations justify a different treatment (Burden, cited above, § 60). The scope of this
margin will vary according to the circumstances, the subject-matter and the
background (Carson and Others,
cited above, § 61).
3. Application of the
above principles to the facts of the present cases
a. The first applicant
89. It was not disputed in
the proceedings before the domestic tribunals and this Court that Ms Eweida’s
insistence on wearing a cross visibly at work was motivated by her desire to
bear witness to her Christian faith. Applying the principles set out above, the
Court considers that Ms Eweida’s behaviour was a manifestation of her religious
belief, in the form of worship, practice and observance, and as such attracted
the protection of Article 9.
90. Ms Eweida was employed by
a private company, British Airways. On 20 September 2006 she was sent home from
work because of her refusal to conceal her cross, in breach of the company’s
uniform code. Just over a month later she was offered an administrative post
which would not have required her to wear a uniform. However, she chose not to
accept this offer and instead remained at home without pay until 3 February
2007, when British Airways amended its rules on uniform and allowed her to
display the cross.
91. The Court considers that
the refusal by British Airways between September 2006 and February 2007 to
allow the applicant to remain in her post while visibly wearing a cross amounted
to an interference with her right to manifest her religion. Since the
interference was not directly attributable to the State, the Court must examine
whether in all the circumstances the State authorities complied with their
positive obligation under Article 9; in other words, whether Ms Eweida’s right
freely to manifest her religion was sufficiently secured within the domestic
legal order and whether a fair balance was struck between her rights and those
of others.
92. In common with a large
number of Contracting States (see paragraph 47 above), the United Kingdom does
not have legal provisions specifically regulating the wearing of religious
clothing and symbols in the workplace. Ms Eweida brought domestic proceedings
for damages for direct and indirect discrimination contrary to regulation 3 of
the 2003 Regulations (see paragraph 41 above). It was accepted before the
Employment Tribunal that it had no jurisdiction to consider any separate or
free-standing claim under Article 9 of the Convention. The applicant was able
to invoke Article 9 before the Court of Appeal, although that court held that
there had been no interference with her rights under Article 9. Nonetheless,
while the examination of Ms Eweida’s case by the domestic tribunals and court
focused primarily on the complaint about discriminatory treatment, it is clear
that the legitimacy of the uniform code and the proportionality of the measures
taken by British Airways in respect of Ms Eweida were examined in detail. The
Court does not, therefore, consider that the lack of specific protection under
domestic law in itself meant that the applicant’s right to manifest her
religion by wearing a religious symbol at work was insufficiently protected.
93. When considering the
proportionality of the steps taken by British Airways to enforce its uniform
code, the national judges at each level agreed that the aim of the code was
legitimate, namely to communicate a certain image of the company and to promote
recognition of its brand and staff. The Employment Tribunal considered that the
requirement to comply with the code was disproportionate, since it failed to
distinguish an item worn as a religious symbol from a piece of jewellery worn
purely for decorative reasons. This finding was reversed on appeal to the Court
of Appeal, which found that British Airways had acted proportionately. In
reaching this conclusion, the Court of Appeal referred to the facts of the case
as established by the Employment Tribunal and, in particular, that the dress
code had been in force for some years and had caused no known problem to the
applicant or any other member of staff; that Ms Eweida lodged a formal
grievance complaint but then decided to arrive at work displaying her cross,
without waiting for the results of the grievance procedure; that the issue was
conscientiously addressed by British Airways once the complaint had been lodged,
involving a consultation process and resulting in a relaxation of the dress
code to permit the wearing of visible religious symbols; and that Ms Eweida was
offered an administrative post on identical pay during this process and was in
February 2007 reinstated in her old job.
94. It is clear, in the view
of the Court, that these factors combined to mitigate the extent of the
interference suffered by the applicant and must be taken into account. Moreover,
in weighing the proportionality of the measures taken by a private company in
respect of its employee, the national authorities, in particular the courts,
operate within a margin of appreciation. Nonetheless, the Court has reached the
conclusion in the present case that a fair balance was not struck. On one side
of the scales was Ms Eweida’s desire to manifest her religious belief. As
previously noted, this is a fundamental right: because a healthy democratic
society needs to tolerate and sustain pluralism and diversity; but also because
of the value to an individual who has made religion a central tenet of his or
her life to be able to communicate that belief to others. On the other side of
the scales was the employer’s wish to project a certain corporate image. The
Court considers that, while this aim was undoubtedly legitimate, the domestic
courts accorded it too much weight. Ms Eweida’s cross was discreet and cannot
have detracted from her professional appearance. There was no evidence that the
wearing of other, previously authorised, items of religious clothing, such as
turbans and hijabs, by other employees, had any negative impact on British
Airways’ brand or image. Moreover, the fact that the company was able to amend
the uniform code to allow for the visible wearing of religious symbolic
jewellery demonstrates that the earlier prohibition was not of crucial
importance.
95. The Court therefore
concludes that, in these circumstances where there is no evidence of any real
encroachment on the interests of others, the domestic authorities failed
sufficiently to protect the first applicant’s right to manifest her religion,
in breach of the positive obligation under Article
b. The second applicant
96. Ms Chaplin is also a
practising Christian, who has worn a cross on a chain around her neck since her
confirmation in 1971. At the time of the events in question she worked as a
nurse on a geriatric ward which had a uniform policy based on guidance from the
Department of Health. That policy provided, inter
alia, that “no necklaces will be worn to reduce the risk of injury when
handling patients” and that any member of staff who wished to wear a particular
item for religious or cultural reasons had first to raise this with the line
manager who would not unreasonably withhold approval. In 2007 new tunics were
introduced, which replaced the previous collar with a V-neck, so that the
applicant’s cross was now more visible and accessible, both at the back of her
neck and in front. The applicant was asked to remove the cross and chain. When
she refused, she was moved in November 2009 to a non-nursing position, which
ceased to exist in July 2010. She complained to the Employment Tribunal of
direct and indirect discrimination. The Tribunal rejected the complaint of
direct discrimination since it found that there was no evidence that the
applicant was treated less favourably than colleagues who wished to wear other
items on religious grounds. It also rejected the claim of indirect
discrimination, finding that the health authority’s policy was proportionate to
the aim pursued.
97. As with Ms Eweida, and in
accordance with the general principles set out above, the Court considers that
the second applicant’s determination to wear the cross and chain at work was a
manifestation of her religious belief and that the refusal by the health
authority to allow her to remain in the nursing post while wearing the cross was
an interference with her freedom to manifest her religion.
98. The second applicant’s
employer was a public authority, and the Court must determine whether the
interference was necessary in a democratic society in pursuit of one of the
aims set out in Article 9 §
99. The Court considers that,
as in Ms Eweida’s case, the importance for the second applicant 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.
100. It follows that the
Court is unable to conclude that the measures of which Ms Chaplin complains
were disproportionate. It follows that the interference with her freedom to
manifest her religion was necessary in a democratic society and that there was
no violation of Article
101. Moreover, it considers
that the factors to be weighed in the balance when assessing the
proportionality of the measure under Article 14 taken in conjunction with
Article 9 would be similar, and that there is no basis on which it can find a
violation of Article 14 either in this case.
c. The third applicant
102. The Court notes that the
third applicant is a Christian, who holds the orthodox Christian view that
marriage is the union of one man and one woman for life. She believed that
same-sex unions are contrary to God’s will and that it would be wrong for her
to participate in the creation of an institution equivalent to marriage between
a same-sex couple. Because of her refusal to agree to be designated as a
registrar of civil partnerships, disciplinary proceedings were brought,
culminating in the loss of her job.
103. The third applicant did
not complain under Article 9 taken alone, but instead complained that she had
suffered discrimination as a result of her Christian beliefs, in breach of
Article 14 taken in conjunction with Article 9. For the Court, it is clear that
the applicant’s objection to participating in the creation of same-sex civil
partnerships was directly motivated by her religious beliefs. The events in
question fell within the ambit of Article 9 and Article 14 is applicable.
104. The Court considers that
the relevant comparator in this case is a registrar with no religious objection
to same-sex unions. It agrees with the applicant’s contention that the local
authority’s requirement that all registrars of births, marriages and deaths be
designated also as civil partnership registrars had a particularly detrimental
impact on her because of her religious beliefs. In order to determine whether
the local authority’s decision not to make an exception for the applicant and
others in her situation amounted to indirect discrimination in breach of
Article 14, the Court must consider whether the policy pursued a legitimate aim
and was proportionate.
105. The Court of Appeal held
in this case that the aim pursued by the local authority was to provide a
service which was not merely effective in terms of practicality and efficiency,
but also one which complied with the overarching policy of being “an employer
and a public authority wholly committed to the promotion of equal opportunities
and to requiring all its employees to act in a way which does not discriminate
against others”. The Court recalls that in its case-law under Article 14 it has
held that differences in treatment based on sexual orientation
require particularly serious reasons by way of justification (see, for example,
Karner v. Austria, no. 40016/98, § 37, ECHR 2003‑IX; Smith and Grady, cited above, §
90; Schalk and Kopf v.
Austria, no. 30141/04, § 97, ECHR 2010). It has also held that same-sex
couples are in a relevantly similar situation to different-sex couples as
regards their need for legal recognition and protection of their relationship,
although since practice in this regard is still evolving across Europe, the
Contracting States enjoy a wide margin of appreciation as to the way in which
this is achieved within the domestic legal order (Schalk and Kopf, cited above, §§
99-108). Against
this background, it is evident that the aim pursued by the local authority was
legitimate.
106. It remains to be
determined whether the means used to pursue this aim were proportionate. The
Court takes into account that the consequences for the applicant were serious:
given the strength of her religious conviction, she considered that she had no
choice but to face disciplinary action rather than be designated a civil
partnership registrar and, ultimately, she lost her job. Furthermore, it cannot
be said that, when she entered into her contract of employment, the applicant specifically
waived her right to manifest her religious belief by objecting to participating
in the creation of civil partnerships, since this requirement was introduced by
her employer at a later date. On the other hand, however, 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 (see, for example, Evans v.
the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007‑I). 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. It cannot,
therefore, be said that there has been a violation of Article 14 taken in
conjunction with Article
d. The fourth applicant
107. Mr McFarlane’s principal
complaint was under Article 9 of the Convention, although he also complained
under Article 14 taken in conjunction with Article 9. Employed by a private
company with a policy of requiring employees to provide services equally to
heterosexual and homosexual couples, he had refused to commit himself to
providing psycho-sexual counselling to same-sex couples, which resulted in
disciplinary proceedings being brought against him. His complaint of indirect
discrimination, inter alia, was
rejected by the Employment Tribunal and the Employment Appeal Tribunal and he
was refused leave to appeal by the Court of Appeal.
108. The Court accepts that
Mr McFarlane’s objection was directly motivated by his orthodox Christian
beliefs about marriage and sexual relationships, and holds that his refusal to
undertake to counsel homosexual couples constituted a manifestation of his
religion and belief. The State’s positive obligation under Article 9 required
it to secure his rights under Article 9.
109. It remains to be
determined whether the State complied with this positive obligation and in
particular whether a fair balance was struck between the competing interests at
stake (see paragraph 84 above). In making this assessment, the Court takes into
account that the loss of his job was a severe sanction with grave consequences
for the applicant. On the other hand, the applicant voluntarily enrolled on
Relate’s post-graduate training programme in psycho-sexual counselling, knowing
that Relate operated an Equal Opportunities Policy and that filtering of
clients on the ground of sexual orientation would not be possible (see
paragraphs 32‑34 above). 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 (see paragraph 83
above). However, 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.
110. In conclusion, the Court
does not consider that the refusal by the domestic courts to uphold Mr
McFarlane’s complaints gave rise to a violation of Article 9, taken alone or in
conjunction with Article 14.
III. APPLICATION
OF ARTICLE 41 OF THE CONVENTION
111. Article
41 of the Convention provides:
“If the
Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows
only partial reparation to be made, the Court shall, if necessary, afford just
satisfaction to the injured party.”
A. Damage
112. Ms Eweida claimed
compensation for loss of earnings, totalling GBP 3,906.69 and interest on the
loss of earnings. She also claimed non-pecuniary damages in respect of the
injury to her feelings. Because of the State’s failure to provide an adequate
domestic remedy, she had suffered a lengthy campaign of discriminatory
treatment, which would have entitled her to an award up to GBP 30,000 at
domestic level.
113. The Government submitted
that the sums claimed were excessive, given that British Airways conducted a
review and changed its uniform policy shortly after Ms Eweida’s complaint, and
that the finding of a violation would be sufficient just satisfaction.
114. The Court has found a
violation in respect of Ms Eweida, on the basis that domestic law, as applied
in her case, did not strike the right balance between the protection of her
right to manifest her religion and the rights and interests of others. It does
not, however, consider that the evidence before it supports Ms Eweida’s claim
to have suffered financial loss as a result of the violation. She was refused
permission to wear the cross visibly at work on 20 September 2006, and decided
to return home and remain there, unpaid, until British Airways changed its
position in February 2007. On 23 October 2006 she was offered the option of
non-uniformed administrative work, at her former rate of pay, pending the
resolution of the grievance procedures; an offer which she chose not to accept.
Moreover, the Employment Tribunal noted in its judgment that it was common
ground between the parties to the proceedings before it that, during the period
September 2006 to February 2007, the applicant had enjoyed an income of well
over twice her loss of earnings, some of it through gifts and donations, some as
earnings from other sources. In these circumstances, the Court does not
consider that the respondent State should be required to compensate Ms Eweida
in respect of her lost earnings. However, the Court considers that the
violation of her right to manifest her religious belief must have caused Ms
Eweida considerable anxiety, frustration and distress. It therefore awards EUR
B. Costs and expenses
115. Ms Eweida also claimed costs
and expenses incurred before the Court, amounting to approximately EUR 37,000
(inclusive of value added tax) including GBP
116. The Government did not
comment in detail on this claim, except to point out that it was not clear that
all the costs had been necessarily incurred.
117. According to the Court’s
case-law, an applicant is entitled to the reimbursement of costs and expenses
only in so far as it has been shown that these have been actually and
necessarily incurred and are reasonable as to quantum. In the present case,
regard being had to the documents in its possession and the above criteria, and
in the absence of detailed comments by the Government, the Court considers it
reasonable to award the sum of EUR 30,000 for the proceedings before the Court,
together with any tax that may be chargeable to Ms Eweida.
C. Default interest
118. The Court considers it
appropriate that the default interest rate should be based on the marginal
lending rate of the European Central Bank, to which should be added three
percentage points.
FOR THESE REASONS, THE COURT
1. Decides unanimously to
join the applications;
2. Declares unanimously the second applicant’s complaint about direct
discrimination inadmissible and the remainder of all four applications
admissible;
3. Holds by five votes to two that there has been a violation of
Article 9 of the Convention in respect of the first applicant and that it is
not necessary to examine separately her complaint under Article 14 taken in
conjunction with Article 9;
4. Holds unanimously that there has been no violation of Article 9,
taken alone or in conjunction with Article
5. Holds by five votes to two that there has been no violation of
Article 14 taken in conjunction with Article
6. Holds unanimously that there has been no violation of Article 9,
taken alone or in conjunction with Article
7. Holds by five votes to two that the respondent State is to pay the first
applicant, within three months from the date on which the judgment becomes
final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two
thousand euros), plus any tax that may be chargeable to the applicant, in
respect of non-pecuniary damage, to be converted into pounds
sterling at the rate applicable at the date of settlement, and that from
the expiry of the above-mentioned three months until settlement simple interest
shall be payable on the above amount at a rate equal to the marginal lending
rate of the European Central Bank during the default period plus three
percentage points;
8. Holds unanimously that the respondent State is to pay the first
applicant, within three months from the date on which the judgment becomes
final in accordance with Article 44 § 2 of the Convention, EUR 30,000 (thirty
thousand euros) in respect of costs and expenses, to be converted into pounds sterling at the rate applicable at the date
of settlement, and that from the expiry of the above-mentioned three months
until settlement simple interest shall be payable on the above amount at a rate
equal to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
9. Dismisses unanimously the remainder of the applicants’ claims for
just satisfaction.
Done in English, and notified in writing on 15
January 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early David
Thór Björgvinsson
Registrar President
In accordance with Article 45 § 2 of the
Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions
of Judges Bratza and David Thór Björgvinsson and of Judges Vučinić
and De Gaetano are annexed to this judgment.
DTB
TLE
JOINT PARTLY DISSENTING OPINION
OF
JUDGES BRATZA AND DAVID THÓR BJÖRGVINSSON
1. While we share the view
of the majority of the Chamber that, save in respect of one complaint of the
second applicant, the applications are admissible as a whole and that there has
been no violation of the Convention rights of the second, third and fourth
applicants, we cannot agree that the rights of the first applicant under
Article 9 of the Convention were violated in the particular circumstances of
her case.
2. We endorse the general
principles set out in the judgment governing the complaints under both Articles
9 and 14. We attach particular importance to three of these principles:
(a) The
“manifestation” of religion or belief within the meaning of Article 9 is not
limited to acts of worship or devotion which form part of the practice of a
religion or belief “in a generally recognised form”. Provided a sufficiently
close and direct nexus between the act and the underlying belief exists, there
is no obligation on an applicant to establish that he or she acted in
fulfilment of a duty mandated by the religion. In the present case, we have no
doubt that the link between the visible wearing of a cross (being the principal
symbol of Christianity) and the faith to which the applicant adheres is
sufficiently strong for it to amount to a manifestation of her religious
belief.
(b) 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. As pointed
out by the applicants, any other interpretation would not only be difficult to
reconcile with the importance of religious belief but would be to treat Article
9 rights differently and of lesser importance than rights under Articles 8, 10
or 11, where the fact that an applicant can take steps to avoid a conflict
between Convention rights and other requirements or restrictions imposed on him
or her has been seen as going to the issue of justification and proportionality
and not to the question of whether there has been an interference with the
right in question. Insofar as earlier decisions of the Commission and the Court
would suggest the contrary, we do not believe that they should be followed.
(c) Where,
as in the case of the first and fourth applicants, the acts complained of were
not directly attributable to the respondent State, the central question is not
whether the interference was necessary in a democratic society or whether the
State complied with its negative obligations flowing directly from Article 9,
but whether the State was in breach of its positive obligations to secure
Article 9 rights through its legal system. In determining whether or not the
State complied with those obligations, regard must be had to the fair balance
that has to be struck between the competing interests of the individual and of
the community as a whole, including the interests of the employer. The Court
has frequently made clear that, in striking the balance, the aims mentioned in
the second paragraph of the Article may be of a certain relevance.
3. As is noted in the
judgment, in common with a large number of Contracting States, the wearing of
religious clothing and/or religious symbols in the workplace is not
specifically regulated by law in the United Kingdom, either in the private or
in the public sector. The first applicant brought domestic proceedings for
damages for direct and indirect discrimination contrary to Regulation 3 of the
2003 Regulation. It was accepted by BA that the Employment Tribunal had no
power to consider any separate or free-standing claim under Article 9 of the
Convention. In the Court of Appeal, Article 9 was invoked but it was held that
the Article did not advance the applicant’s case since, in the view of that
court, there had been no interference with the applicant’s rights under that
Article.
4. Despite this lack of
specific protection, it does not in our view follow that in the particular
circumstances of this case the applicant’s Article 9 rights were not
adequately secured. While at the national level the examination of the
applicant’s claim focused on the complaint of discrimination, it is clear that
both the Employment Tribunal and the Court of Appeal examined in detail not
only the legitimacy of the aim of the uniform code adopted by BA but the
proportionality of the measures taken by the company in respect of the
applicant. It was held unanimously that the aim was legitimate. The Employment
Tribunal considered that the requirement was not proportionate since it failed
to distinguish an item such as a religious symbol from an item worn purely
frivolously or as a piece of cosmetic jewellery. The Court of Appeal, in
reversing this finding, took a broader view of the matter, referring
specifically to the particular features of the case which had been found
established by the Employment Tribunal. These included the fact that the
company’s dress code had for some years caused no known problems to any
employee including the applicant herself, who from 2004 until May 2006 appears
to have worn a cross concealed under her clothing without objection; the fact
that the applicant had originally accepted the requirement of concealing the
cross before reporting for work in breach of it, without waiting for the
results of a formal grievance complaint which she had lodged with the company;
the fact that the issue was conscientiously addressed by BA, which offered the
applicant a temporary administrative position within the company which would
have allowed her to wear the cross openly without loss of pay; the fact that
the procedures within the company were properly followed in the light of the
applicant’s complaint and that the dress code was reviewed, and within a matter
of a few months relaxed, so as to permit the wearing of religious and other
symbols; and the fact that, in consequence, the applicant was reinstated in her
original post and able to continue openly to wear the cross from February 2007
onwards.
5. While a different view
could doubtless be held – and was held by the Employment Tribunal itself – we
do not find it possible to say that the Court of Appeal failed to carry out a
fair balance of the competing interests or that their review of the factual
circumstances of the case failed adequately to secure the applicant’s Article 9
rights. It is argued in the judgment that too much weight was given by the
domestic court to BA’s wish to project a certain corporate image and too little
to the applicant’s desire to manifest her religious belief and to be able to
communicate that belief to others. We do not think that this does justice to
the decision or reasoning of the Court of Appeal. Had the uniform code been
stubbornly applied without any regard to the applicant’s repeated requests to
be allowed to wear her cross outside her clothing or had her insistence on doing
so resulted in her dismissal from employment, we could readily accept that the
balance tipped strongly in favour of the applicant. But, as the facts
summarised above show, that was not the case. The fact that the company was able
ultimately to amend the uniform code to allow for the visible wearing of
religious symbols may, as the judgment claims, demonstrate that the earlier
prohibition was not “of crucial importance”. It does not, however, begin in our
view to demonstrate that it was not of sufficient importance to maintain until
the issue was thoroughly examined.
6. In view of our
conclusion that Article 9, read alone, was not violated, we have found it necessary
to examine separately the applicant’s complaint under Article 14 read in
conjunction with Article 9.
7. In the domestic
proceedings the applicant claimed direct discrimination and indirect
discrimination under the 2003 Regulations. The claim of direct discrimination
was rejected on the ground that, on the evidence, the applicant was treated
identically to all possible comparators: to an adherent of any non-Christian
faith or of no faith, displaying a cross for cosmetic and non-religious
reasons; to an adherent to a faith other than Christianity, wearing a symbol of
that faith visibly on a silver chain round the neck; and to an employee wearing
a visible silver necklace without any form of Christian or other religious
adornment. We see no ground for challenging this finding or for concluding that
there was direct discrimination.
8. The principal claim
before the Court appears to be one of indirect discrimination, the argument
being that, because of her religion, the applicant was in a different situation
from other employees who wished to wear jewellery and that she should have been
accorded different treatment as far as the company’s uniform policy was
concerned. The applicant does not directly criticise the 2003 Regulations which,
on their face, appeared to provide in Regulation 3(1)(b) protection against any
form of indirect discrimination. The applicant’s complaint relates rather to
the way in which that Regulation was applied by the national tribunal and court,
which held that the concept of indirect discrimination implied discrimination
against a defined group and that the applicant had not produced evidence of an
identifiable group disadvantage on the part of Christians but only disadvantage
to herself, arising out of her wish to manifest her Christian faith in a
particular way. The Court of Appeal noted that, of the uniformed work force of
30,000, none other than the applicant had ever made such a request or demand,
much less refused to work if it was not met. The applicant argues that to
require an applicant to show group disadvantage discriminates against the
adherents of religions that are less prescriptive as regards the manner of
dress or other outward manifestations of faith (such as Christianity) than other
religions.
9. We see force in both
arguments. While it is true that the purpose of indirect discrimination is to
deal principally with the problem of group discrimination, it is also true that
to require evidence of group disadvantage will often impose on an applicant an
excessive burden of demonstrating that persons of the same religion or belief
are put at a particular disadvantage. This may be especially difficult, as the
applicant argues, in the case of a religion such as Christianity, which is not
prescriptive and which allows for many different ways of manifesting commitment
to the religion.
10. In the end, we have not found
it necessary to resolve this question, since even if the measure had an unequal
impact and could in principle give rise to indirect discrimination, there was
in our view in the particular circumstances of the case an objective and
reasonable justification for the measure, which was a proportionate means of
achieving a legitimate aim. In this respect we are brought back to the specific
factual circumstances already referred to under Article 9 read alone.
11. For these reasons we would
find that the applicant’s rights under Article 9, read alone or in conjunction
with Article 14, were not violated. While we would not accordingly have awarded
compensation to the applicant, in deference to the view of the majority, we do
not contest the award of costs and expenses.
JOINT PARTLY DISSENTING OPINION
OF
JUDGES VUČINIĆ AND DE GAETANO
1. We are unable to share the
majority’s opinion that there has been no violation of the Convention in
respect of the third applicant (Ms Ladele). Our vote under operative head no. 9
of the judgment must be read only in light of the fact that, in view of the
majority decision regarding the third applicant, it would have served no
practical purpose to have a separate head on just satisfaction in respect of
the said applicant.
2. The third applicant’s case is
not so much one of freedom of religious belief as one of freedom of conscience
– that is, that no one should be forced to act against one’s conscience or be
penalised for refusing to act against one’s conscience. Although freedom of
religion and freedom of conscience are dealt with under the same Article of the
Convention, there is a fundamental difference between the two which, in our
view, has not been adequately made out in §§ 79 to 88 of the judgment. Even
Article 9 hints at this fundamental difference: whereas the word “conscience”
features in 9 § 1, it is conspicuously absent in 9 § 2. Conscience –
by which is meant moral conscience – is what enjoins a person at the
appropriate moment to do good and to avoid evil. In essence it is a judgment of
reason whereby a physical person recognises the moral quality of a concrete act
that he is going to perform, is in the process of performing, or has already
completed. This rational judgment on what is good and what is evil, although it
may be nurtured by religious beliefs, is not necessarily so, and people with no
particular religious beliefs or affiliations make such judgments constantly in
their daily lives. The pre-eminence (and the ontological roots) of conscience
is underscored by the words of a nineteenth century writer who noted that
“...Conscience may come into collision with the word of a Pope, and is to be
followed in spite of that word.”[1]
3. As one of the third party
intervenors in this case – the European Centre for Law and Justice (ECLJ) –
quite pointedly put it: “[J]ust as there is a difference in nature between
conscience and religion, there is also a difference between the prescriptions
of conscience and religious prescriptions.” The latter type of prescriptions –
not to eat certain food (or certain food on certain days); the wearing of the
turban or the veil, or the display of religious symbols; attendance at
religious services on certain days – may be subject to limitations in the
manner and subject to the conditions laid down in Article 9 § 2. But can the
same be said with regard to prescriptions of conscience? We are of the view
that once that a genuine and serious case of conscientious objection
is established, the State is obliged to respect the individual’s freedom of
conscience both positively (by taking reasonable and appropriate measures to
protect the rights of the conscientious objector[2])
and negatively (by refraining from actions which punish the objector or
discriminate against him or her). Freedom of conscience has in the past all too
often been paid for in acts of heroism, whether at the hands of the Spanish
Inquisition or of a Nazi firing squad. As the ECLJ observes, “It is in order to
avoid that obeying one’s conscience must still require payment in heroism that
the law now guarantees freedom of conscience.”
4. The respondent Government
accepted that the third applicant’s objection to officiating at same-sex civil
partnership ceremonies was a genuine and serious one, based as it was on her
conviction that such partnerships are against God’s law. In this sense her
conscientious objection was also a
manifestation of her deep religious conviction and beliefs. The majority
decision does not dispute this – indeed, by acknowledging that “[t]he events in
question fall within the ambit of Article 9 and Article 14 is applicable” (see
§ 103), the majority decision implicitly acknowledges that the third
applicant’s conscientious objection attained a level of cogency, seriousness,
cohesion and importance (see § 81) worthy of protection.
5. It is at this point pertinent
to observe that when the third applicant joined the public service (as an
employee of the London Borough of Islington) in 1992, and when she became a
registrar of births, deaths and marriages in 2002, her job did not include
officiating at same-sex partnership ceremonies. There is nothing to suggest,
and nor has it been suggested by anyone, that it was to be expected (perhaps by
2002) that marriage registrars would have to officiate at these ceremonies in
the future. If anything, both the law (the Civil Partnership Act 2004) and the
practice of other local authorities allowed for the possibility of compromises
which would not force registrars to act against their consciences (see § 25).
In the third applicant’s case, however, a combination of back-stabbing by her
colleagues and the blinkered political correctness of the Borough of Islington
(which clearly favoured “gay rights” over fundamental human rights) eventually
led to her dismissal. The iter
lamentabilis right up to the Court of Appeal is described in §§ 26 to 29.
We underscore these facts because the third applicant’s situation is
substantially different from the situation in which the fourth applicant found
himself, or, more precisely, placed himself. When Mr McFarlane joined Relate he
must have known that he might be called upon to counsel same-sex couples.
Therefore his position is, for the purposes of the instant case, not unlike
that of a person who volunteers to
join the army as a soldier and subsequently expects to be exempted from lawful
combat duties on the grounds of conscientious objection. While we agree that
with regard to the fourth applicant his dismissal did not give rise to a
violation of Article 9, whether taken alone or in conjunction with Article 14,
we do not fully subscribe to the reasoning in § 109, and in particular to the
statement to the effect that “[t]he State authorities...benefitted from a wide
margin of appreciation in deciding where to strike the balance between the
applicant’s right to manifest his religious belief and the employer’s interest
in securing the rights of others.” In our view the State’s margin of
appreciation, whether wide or narrow, does not enter into the equation in
matters of individual moral conscience which reaches the required level
mentioned in paragraph 4, above. In our view the reason why there was no
violation of Article
6. As the majority judgment correctly
notes, the third applicant did not complain of a violation of Article 9 taken
alone, but rather that “she had suffered discrimination as a result of her
Christian beliefs, in breach of Article 14 taken in conjunction with Article
7. What is in issue is the discriminatory
treatment of the third applicant at the
hands of the Borough, in respect of which treatment she did not obtain redress
at domestic level (except before the first instance Employment Tribunal, § 28).
Given the cogency, seriousness, cohesion and importance of her conscientious
objection (which, as noted earlier, was also
a manifestation of her deep religious convictions) it was incumbent upon the
local authority to treat her differently
from those registrars who had no conscientious objection to officiating at
same-sex unions – something which clearly could have been achieved without
detriment to the overall services provided by the Borough including those
services provided by registrars, as evidenced by the experience of other local
authorities. Instead of practising the tolerance and the “dignity for all” it
preached, the Borough of Islington pursued the doctrinaire line, the road of
obsessive political correctness. It effectively sought to force the applicant
to act against her conscience or face the extreme penalty of dismissal –
something which, even assuming that the limitations of Article 9 § 2 apply to
prescriptions of conscience, cannot be deemed necessary in a democratic society.
Ms Ladele did not fail in her duty of discretion: she did not publicly express
her beliefs to service users. Her beliefs had no impact on the content of her
job, but only on its extent. She never attempted to impose her beliefs on
others, nor was she in any way engaged, openly or surreptitiously, in
subverting the rights of others. Thus, even if one were to undertake the
proportionality exercise referred to in § 106 with reference to whatever
legitimate aim the Borough had in view, it follows that the means used were
totally disproportionate.
8. For the above reasons, our
conclusion is that there was a violation of Article 14 taken in conjunction
with Article
[1] John Henry
Cardinal Newman in A letter to His Grace the Duke of
[2] Thereby at the same time ensuring in a
practical, and not merely theoretical, way unity in diversity.