On 14 February the Equality and Human Rights Commission published two documents arising out of the ECtHR judgment in Eweida and Others v United Kingdom 48420/10 36516/10 51671/10 59842/10 – HEJUD  ECHR 37 (15 January 2013)
- Religion or belief in the workplace: A guide for employers following recent European Court of Human Rights judgments and
- Religion or belief in the workplace: An explanation of recent European Court of Human Rights judgments.
The guidance starts from the presumption that
“[a] protected belief should be more than an opinion or a viewpoint, and it should be serious, genuinely and sincerely held, and worthy of respect in a democratic society. It should also be compatible with human dignity and should not conflict with the fundamental rights of others. The law protects adherents to all the generally recognised religions, as well as druids and pagans, for example. It also protects people without any religion or belief, including humanists and atheists”.
It goes on:
“Employers are not expected to be experts in religion or belief issues and should not spend too much time or expense examining the motivation or genuineness of a particular employee’s religion or belief. In most cases, this will be easily identified.
An employer should only question a belief in the most exceptional cases where, for example, it is very obscure, appears to be objectively unreasonable, or the sincerity of the belief of an employee is genuinely in doubt. In such situations, employers can ignore requests when they reasonably conclude that the belief is not sincere”.
In short, the EHRC is adopting the test in the case about corporal punishment in Scottish schools, Campbell and Cosans v United Kingdom 7511/76; 7743/76  ECHR 1 (25 February 1982) at paragraph 36, of a belief requiring “a certain level of cogency, seriousness, cohesion and importance” in order to be protected. But Campbell and Cosans says nothing about not conflicting with the fundamental rights of others. Nor, except rather obliquely, does the judgment in Eweida & Ors.
In relation to Ms Ladele the Court noted at paragraph 106 that the policy of the London Borough of Islington “aimed to secure the rights of others which are also protected under the Convention” and at paragraph 109, in relation to Mr McFarlane, that “The State authorities … benefited 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”. But even allowing for the grant of a wide margin of appreciation in the cases of Ms Ladele and Mr McFarlane, there is something of a question-mark over the EHRC’s apparent assumption that whenever Article 9 rights conflict with other Convention rights they will always have to go to the bottom of the heap.
What the Court seemed to be asserting in relation to Ms Eweida and Mrs Chaplin was that circumstances alter cases. The Court accepted that both women had suffered interference with their Article 9 rights: the difference between them was that the interference with Ms Eweida’s right to manifest by wearing her cross had been British Airways plc’s concern for its corporate image, while the uniform code of Mrs Chaplin’s local NHS Trust that prevented her from wearing her crucifix had been motivated by health and safety considerations and was in accordance with Department of Health guidelines.
Furthermore, the EHRC guidance states that
“Some employees may wish to opt out of the performance of some of their duties due to their religion or belief … This is explicitly permitted by law in certain specific situations, for example medical staff can opt out of performing abortions, or carrying out embryo research or fertility treatment. However, the law is clear that when someone is providing a public service, they cannot, because of their religion or belief, discriminate unlawfully against customers or service users”.
That, I would suggest, could have been expressed more clearly. As drafted, it seems to be saying that employees providing a public service cannot discriminate unlawfully against service users. Quite apart from the circularity of the last sentence – unlawful discrimination is unlawful by definition – how does one know precisely what is unlawful and what is not? And it is surely the employer, as the service-provider, who must not “discriminate unlawfully against customers or service users”. The employee is merely the employer’s servant: if the employer manages successfully to organise a public service in a way that both allows certain employees not to do things contrary to their religious or philosophical beliefs and provides a seamless service to customers, then in what way is that illegal?
The point about Ms Ladele’s case (whom Mark Hill regards as “perhaps the real loser in the four conjoined applications”: see “Religion at work” New Law Journal 1 February 2013 89) was that it was not members of the general public who objected to her non-participation in civil partnership registrations – it was some of her colleagues. As Vučinić and De Gaetano JJ pointed out in paragraph 6 of their partly-dissenting judgment:
“… no service user or prospective service user of the Borough seems to have ever complained (unlike some of her homosexual colleagues) about [Ms Ladele] … The aim of the Borough of Islington to provide equal opportunities and services to all without discrimination, and the legitimacy of this aim, is not, and was never, in issue”.
The EHRC’s legal analysis
The key conclusion of the legal analysis seems to be much more in accordance with the majority judgment in Eweida & Ors than the EHRC guidance is itself, particularly on the downgrading of the ”specific situation rule” (in brief: “if you don’t like it here, get another job elsewhere”):
“The new judgment means that the courts cannot simply dismiss a case because of the possibility of changing jobs to other employment that allows the [complainant’s] religious observance. Instead, this possibility should be a relevant factor, to be weighed amongst others, when considering whether or not the restriction is proportionate. The judgment means that courts will now give more attention to deciding whether restrictions on religious rights in the workplace are appropriate and necessary”.
The analysis also makes the point that a practice or manifestation motivated, influenced or inspired by a particular religion or belief and sufficiently linked to it should henceforth be protected – regardless of whether or not it is a mandatory requirement of the religion or belief. The majority judgment in Eweida & Ors expressed it as follows at paragraph 82: “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.” Both Ms Eweida and Mrs Chaplin demonstrated a genuine wish, motivated by their desire to bear witness to their Christian faith, to wear a cross or crucifix visibly at work; and the Court considered that these were manifestations of religious belief for the purposes of Article 9.
The analysis goes on to list a series of possibly-relevant considerations for an employer:
- the need to take a balanced view of the religion or belief needs of the employee;
- the need to review policies and practices causing problems for employees related to religion or belief and to ensure that employees are not subjected to a detriment at work while that is going on;
- the need to consider the impact that meeting an employee’s needs would have on other employees and on customers; and
- the need to consider whether the aim that the employer is pursuing is legitimate and, if so, whether it is being pursued by proportionate means.
The legal analysis concludes – correctly – that “The courts will assess the weight of each type of relevant consideration to determine where the right balance lies in the particular circumstances of each case”.
“[W]here the right balance lies in the particular circumstances of each case” is surely the crux of the matter. It cannot be repeated too often that individual cases are fact-specific – which is why Nadia Eweida won against BA while Shirley Chaplin lost against her NHS Trust. So if there is a lesson to be learned for employers it is this:
- read the EHRC guidance; but
- do read it very carefully indeed; and
- don’t assume that an Employment Tribunal will automatically go along with your own view of the situation.
I am obliged to Gavin Drake for drawing my attention to some of the issues raised by the guidance.