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15 January 2013
European Court of Human Rights
Article 9 of the European Convention on Human Rights provides the right to freedom of thought, conscience and religion. The Article protects acts which manifest a particular religion so long as there is a sufficiently close and direct connection between the act and the religion. The act does not have to be required by that religion.
So an employer's right to impose rules on their employees could be restricted to the extent that any rule might infringe article 9. But a rule will not breach article 9 if there is an easy way for employees to circumvent it. Some decisions of the ECJ have suggested that employees can always circumvent an employer's rule that might infringe their Article 9 rights by resigning (see eg Stedman v United Kingdom). But the Court in this case holds that the option of resigning is something to be taken into account in deciding whether the requirement is proportionate and is not in itself decisive. A balance has to be struck between the interests of the individual and the interests of the community as a whole.
Applying these principles to the four complaints in this case:
Eweida: BA's uniform policy prohibited customer-facing staff from wearing any visible item of adornment unless it was a mandatory religious requirement. E, a Christian, visibly wore a cross. She was sent home without pay but was offered a non-customer-facing role which she declined. BA later changed their policy to allow visible signs of faith. The Court held that the requirement not to visibly wear the cross was an interference with E's right to manifest her religion and a fair balance had not been struck. Although the aim of projecting a particular corporate image was legitimate, the cross was discreet and would not have detracted from her professional appearance any more than other mandatory religious clothing which BA's policy had to permit. That fact was demonstrated by BA's subsequent change in policy.
Chaplin: C, a nurse, was not allowed to wear a necklace because of the risk of injury when handling patients. That meant she could not wear her cross. This too was an interference with her right to manifest her religion but here, the requirement was proportionate and fell within the discretion that states are allowed, since hospital managers are better placed to make decisions about safety than a court. C's complaint therefore failed.
Ladele: L was a Christian Registrar of births, deaths and marriages. A new requirement was introduced that she should take part in same-sex civil partnership services. She refused. Ultimately, she lost her job as a result. The Court held that the council's aim, to provide services to users in a non-discriminatory way, was legitimate and outweighed any interference with L's religious beliefs.
McFarlane: M, a Christian, worked as a counselor for RA Limited, which provided a confidential sex therapy and relationship counseling service. He was dismissed because he refused to give concrete assurances to his employer that he would counsel homosexual couples about sex. The Court accepted that his refusal to counsel homosexual couples was a manifestation of his religion and belief. But a fair balance had been struck because M had voluntarily enrolled on the training programme in psycho-sexual counseling knowing that the company operated an equal opportunities policy which would require him to counsel clients irrespective of their sexual orientation. The employer's aim of providing its services without discrimination outweighed any interference with M's right to manifest his religion and belief.
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