Religious Freedom in the UK: Discrimination & European Court, Schemes and Mind Maps of Religion

Download Religious Freedom in the UK: Discrimination & European Court and more Schemes and Mind Maps Religion in PDF only on Docsity! Case Summary CASE OF EWEIDA AND OTHERS v. THE UNITED KINGDOM Application numbers: 48420/10, 59842/10, 51671/10 and 36516/10 1. Reference Details Jurisdiction: European Court of Human Rights (ECtHR) – Chamber Decision Date of Decision: 15 January 2013 Case status: Link to full case and judgment: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx#{"itemid":["001-115881"]} 2. Facts of the case The case originated in four applications which were brought against the UK by Christians who believed that they had suffered unlawful discrimination at the hands of their respective employers on the grounds of their religious beliefs. Each applicant argued that the state had violated their right to freedom of religion under Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and/or their right to be free from discrimination in the exercise of this freedom under Article 14 together with Article 9 ECHR. They argued variously that the state had either failed to take action to protect these rights or had taken actions which violated the rights. All applicants complained that domestic law failed adequately to protect their right to manifest their religion. Two of the applicants, Ms Eweida and Ms Chaplin, are Christians who believe that their faith requires them to wear a small cross on a chain visibly around their neck. In both cases, the women’s respective employers had refused to allow them to continue in their role unless they removed their cross. Ms Eweida worked for a private employer, British Airways (BA), in a customer facing role and was told that the cross was a breach of BA’s uniform policy. In 2006, Ms Eweida began to display her cross and, after refusing to remove or cover it, she was sent home without pay. In October 2006, after a month’s absence, Ms Eweida was offered a non-customer facing role in which she could have worn the cross but she refused this offer and remained at home without pay. In November 2006, BA announced a review of its uniform policy and, in January 2007, BA amended the policy so that religious or charity symbols would be permitted where authorised in future. In February 2007, Ms Eweida was reinstated in her old job, able to wear her cross. She brought claims of unlawful discrimination and sought compensation for the period of time she was without pay. In particular she claimed that the company had indirectly discriminated against her because its uniform policy put her, on the basis of her beliefs, at a significant disadvantage as compared to colleagues with other beliefs, and this could not be justified. Her claims were rejected by the UK courts. Ms Chaplin worked for a state hospital, the Royal Devon and Exeter NHS Foundation Trust, from 1989 to July 2010. The hospital’s uniform policy, which was based on guidance from the state Department of Health, prohibited the wearing of necklaces “to reduce the risk of injury when handling patients”. It stated that staff would not unreasonably be denied approval for the wearing of religious jewellery if they made such a request. In 2009 a change in uniform meant that Ms Chaplin’s cross was visible. Her requests to wear it were refused on health and safety grounds. The hospital suggested that Ms Chaplin attach the cross to a badge but, as the badge was not worn at all times, Ms Chaplin refused. In November 2009, Ms Chaplin was moved to a non-nursing temporary position which ceased to exist in July 2010. Ms Chaplin claimed unlawful direct and indirect discrimination. She claimed direct discrimination on the basis that the policy targeted Christians and that Sikhs and Muslims were not treated in the same way in relation to the policy. Her indirect discrimination claim was on similar grounds to those raised by Ms Eweida. Ms Chaplin's claims of unlawful direct and indirect discrimination were rejected by the UK Employment Tribunal and she was advised that, given the Court of Appeal’s decision in Ms Eweida’s case, any appeal would have no prospect of success. The other two applicants, Mr MacFarlane and Ms Ladele are Christians who believe that homosexual activity/relationships cannot be condoned. Ms Ladele was a registrar for a local authority. She believes that same-sex civil partnerships are contrary to God’s law. She had been employed by the authority since 1992 and as a registrar since 2002. The authority had a “Dignity for All” policy in which the authority agreed to challenge discrimination in all its forms. This applied to staff, residents and services users and covered discrimination on the grounds of sexuality. The policy stated that the authority had no tolerance for discrimination. In 2005 the Civil Partnership Act 2004 came into force, providing for legal registration of civil partnerships between same-sex couples. In December 2005 the authority designated all registrars as civil partnership registrars, a role that Ms Ladele felt she could not undertake given her beliefs. Initially Ms Ladele avoided conducting civil partnerships by making informal arrangements with colleagues. However, in 2006, two of her colleagues complained that this was discriminatory. The authority informed Ms Ladele that her refusal to conduct the partnerships was a breach of its Code of Conduct and equality policy. Formal disciplinary proceedings were taken and Ms Ladele lost her job. Ms Ladele brought claims of direct and indirect discrimination. Although the Employment Tribunal found in her favour, the UK's appeal courts both found against her. Mr MacFarlane was employed by a private organisation, Relate Avon Limited (Relate), which provides confidential sex therapy and relationship counselling. Mr MacFarlane believes that the Bible states that homosexual activity is sinful and that he should do nothing which directly endorses such activity. Relate’s equal opportunities policy stated that, amongst other things, the company was committed to ensuring that no clients receive less favourable treatment on the basis of their sexual orientation. Mr MacFarlane worked for the company from 2003 to 2008. In 2007, there was a perception in the company that Mr MacFarlane was unwilling to work on sexual issues with homosexual couples. The matter was investigated and, following a procedure during which Mr MacFarlane’s statement that he would provide such services was considered to be false, he was dismissed in March 2008. Mr MacFarlane’s claims of direct and indirect discrimination were rejected by the UK courts. The applicants brought their cases to the ECtHR on various dates in 2010. In April 2011, the applications were communicated to the government and the ECtHR decided to rule on their merits and admissibility at the same time. At the date of its judgment, the Court decided to join all four applications as they raised related issues. A number of third parties intervened in the case including, amongst others, the UK’s Equality and Human Rights Commission (EHRC), The National Secular Society, the Bishops of Chester and Blackburn and the Fédération Internationale des lingues des Droits de l’Homme (FIDH, ICJ, ILGA-Europe), with views across a spectrum, identifying the contentious nature of the issues raised by the applications. 3. Law Relevant Domestic Law opinion, national or social origin, association with a national minority, property, birth or other status.” The Court's analysis of Article 14 and its restatement of the parties' arguments in relation to the Article in the judgment is minimal. The Court restated its earlier authority by acknowledging that Article 14 will be applicable if the facts of the case fall “within the ambit” of another Convention right and acknowledges that “religion” is specifically mentioned in Article 14 as a prohibited ground of discrimination. It confirmed earlier findings that the right not to be discriminated against may be violated where a state, without objective and reasonable justification, fails to treat persons differently whose situations are significantly different. It acknowledged that the state is afforded a margin of appreciation in assessing whether and to what extent difference in otherwise similar situations justify a different treatment and that the scope of this margin of appreciation will vary according to the circumstances, subject-matter and background. Specific findings on the four applications The state then applied these principles to the four cases and found that there had been a violation of Ms Eweida's Article 9 rights (and that this finding meant there was no requirement to consider the allegation under Article 14 together with 9) but that there was no violation in the three other cases. In relation to the uniform policy cases, the Court held that the wearing of a cross by both Ms Eweida and Ms Chaplin amounted to a manifestation by each of their religious belief and that their employers’ refusal to allow them to remain in their post whilst wearing the cross was an interference with each claimant’s freedom to manifest her religion. However, the outcomes following the Court’s assessment of whether that interference was justified on the particular facts in each case were different. Ms Eweida The ECtHR noted that, given that Ms Eweida's employer was private, the question was whether the UK had upheld its positive obligations under Article 9. It found that the law regulating discrimination on the grounds of religious belief was not, in itself, insufficient to uphold this positive obligation. However, it held that the UK courts, in applying the law, had violated Ms Eweida's rights under Article 9. Specifically, the ECtHR held that the UK courts, when ruling on Article 9(2) and deciding on the proportionality of the employer’s measure to prevent Ms Eweida from wearing the cross, had correctly considered her right to manifest her religious belief and the company’s interest in preserving its corporate image as factors to weigh into the balance. However, the ECtHR held that the UK courts had failed to strike the right balance as they had accorded the factor of the company’s image too much weight. Ms Eweida’s discreet cross could not have detracted much from her corporate appearance and there was no evidence that allowing the wearing of religious dress on previous occasions had detracted from BA’s brand or corporate image. In circumstances where there was no evidence of encroachment on the interests of others, the state had failed to adequately protect Ms Eweida’s Article 9 right. The Court made this finding with a five to two majority. Ms Eweida was awarded Euro 2000 compensation and Euro 30,000 costs. The dissenting judges, ECtHR President Judge Björgvinsson and Judge Bratza, considered that there had been no violation of Article 9 and that the courts had dealt appropriately with the examination of whether BA's approach had been proportionate. In particular, the judges did not feel that the majority judgment gave justice to the careful consideration of the balance conducted by the Court of Appeal when considering the proportionality question. The dissenting judges then went on to consider whether there had been a violation of Article 14 taken with Article 9, which had not been addressed by the majority. On the main claim of indirect discrimination, namely that, as a Christian, Ms Eweida was in a different situation from other employees and should have been treated differently, the judges gave some detailed comments. They noted that Ms Eweida had not criticised the wording of the applicable national Regulations but rather the national tribunal and court in their application of those regulations. The judges set out the particular point of contention: the tribunal and court had held that Ms Eweida had failed to produce evidence of a group disadvantage on the part of Christians but rather only of a disadvantage to herself arising out of her desire to manifest her Christian religion in a certain way; conversely, Ms Eweida had argued that requiring an applicant to show group disadvantage discriminates against adherents of religions which are less prescriptive as regards religious manifestations e.g. religious dress. The dissenting judges saw force in both arguments. They noted that “the purpose of indirect discrimination is to deal principally with the problem of group discrimination” but that “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” and that the burden may be especially difficult in the case of less prescriptive religions. However, the judges did not resolve the question because, in any event, in their view there was objective and reasonable justification for the indirectly discriminatory measure in Ms Eweida's case. Accordingly, this important question in relation to the approach to indirect discrimination remains unresolved. Ms Chaplin In the case of Ms Chaplin, whose employer was a public authority and therefore directly required to comply with Article 9 ECHR, the Court unanimously held that there had been no violation of her Convention rights, as it could not conclude that the decision to require the removal of the cross was disproportionate. The reason in the case for not allowing her to wear the cross in the manner she requested was for both her health and safety and that of the patients with whom she worked. The Court felt that asking her to remove the cross for a health and safety reason was of “inherently greater magnitude” than for a reason of corporate image (as was the case with Mrs Eweida). In any event, the authorities were entitled to a wide margin of appreciation in relation to safety matters. In Ms Chaplin’s case, the Court also held that there was no violation of Article 14 when taken with Article 9. It did not provide detailed reasoning but rather stated that the factors to be weighed into the balance when considering proportionality under Article 14 would be similar to those it had considered in its Article 9 analysis. Ms Ladele Ms Ladele claimed that she had been discriminated against in respect of her right to freedom of religion. The Court, by a five to two majority, rejected that claim. It considered that it was “clear” that Ms Ladele’s objection to participating in the creation of same-sex civil partnerships was directly motivated by her religious beliefs. As the events “fell within the ambit” of Article 9, the Article 14 obligations applied. The Court considered solely whether the local authority had indirectly discriminated against Ms Ladele by applying a provision, criterion or practise which had a “particular detrimental impact” on Ms Ladele because of her religious belief (as compared with a registrar who did not object to same-sex union on religious grounds) and which could not be justified as a proportionate means of achieving a legitimate aim. The Court held that the requirement that all registrars be designated as registrars of civil partnerships as well as marriages, births and deaths had a “particular detrimental impact” on Ms Ladele because of her religious beliefs. The Court determined that the policy in question was pursued as part of the authority’s commitment to equal opportunities which also required that none of its employees acted in a discriminatory manner. The Court accepted that the local authority’s aim was legitimate when considered against the backdrop of the need for very serious reasons for discrimination on grounds of sexual orientation and the wide margin of appreciation afforded to states in relation to the regulation of same-sex and different-sex couples. In considering whether the requirement that all registrars conduct civil partnerships as well as marriages was a proportionate means of achieving its legitimate aim, the Court considered that a balance needed to be struck between Ms Ladele’s freedom to religious beliefs and the protection of the Convention rights of others. Acknowledging that the authority’s policy was introduced precisely in order to seek to protect the Convention rights of others, and that the authority is to be afforded a wide margin of appreciation in determining how to best go about this, the Court held that it could not find that the state, either in the form of the local authority who enforced the policy or the courts who adjudicated the authority’s decision, had violated Ms Ladele’s Article 14 right. The two dissenting judges held that the issue should be seen as one of conscientious objection rather than religious objection to civil partnership. They considered that Ms Ladele had been unjustifiably discriminated against. They disagreed with the majority that there had been any impact on the rights of same-sex service users of the local authority. They pointed out that no same-sex users of the registry service had complained or been unable to access the service. It was the judges' view that the only person to have suffered discrimination was Ms Ladele. She had not made her views public and they had not impacted on the content of her job only its extent. Accordingly, her treatment by the authority was “totally disproportionate”. Mr MacFarlane Mr MacFarlane, an orthodox Christian who was employed by a private company, complained to a UK employment tribunal that his employer had indirectly discriminated against him on the ground of his religious beliefs in dismissing him after he refused to comply with an equal opportunities policy which required him to provide psycho-sexual counselling services to same- sex couples on an equal basis as to heterosexual couples. His claim was unsuccessful in the UK courts and so Mr MacFarlane argued that the UK had failed to protect his Article 9 right and had also violated his Article 14 right when read with Article 9. The Court unanimously held that there had been no violation of his rights. The Court accepted that Mr MacFarlane’s refusal to provide the counselling to homosexual couples was directly motivated by his orthodox Christian beliefs and was a “manifestation” of his beliefs, meaning the state’s positive obligation to protect his Article 9 right applied. The Court went on to analyse whether a correct balance had been struck between the various interests at stake in this scenario. It noted that the loss of his job was a severe sanction with grave consequences for Mr MacFarlane. However, the Court also noted that he had voluntarily signed up to the employer’s counselling programme “knowing that [the employer] operated an Equal Opportunities Policy and that filtering of clients on the ground of sexual orientation would not be possible.” Although this choice was not determinative, it was a factor to be considered. However, the Court held that “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 had not exceeded its wide margin of appreciation in approaching this case and there was no violation of Article 9 or of Article 14 taken with Article 9.