‘Group disadvantage' after Eweida
Douglas Leach, Guildhall Chambers
The European Court of Human Rights' (ECtHR's) judgment in Eweida and Others v the United Kingdom  ECHR 37 was last week's big legal news, even making the mainstream national and international news headlines. The practical outcomes in the four joined cases (the other three applicants being Ms Chaplin, Ms Ladele and Mr. McFarlane) have not generally been regarded as particularly surprising, and seem to have chimed with the general public as representing ‘common sense'. However, in legal circles it is the effect of the judgment on a particular aspect of domestic indirect discrimination law that ought to be of most interest.
In Ms Eweida's case, the last substantive domestic judgment was that of the Court of Appeal (Eweida v British Airways Plc  IRLR 322). The Supreme Court refused permission to appeal against that decision, leading to Ms Eweida's application to the ECtHR. An employment tribunal had rejected her claim of indirect discrimination under the Employment Equality (Religion) Regulations 2003, which were the applicable domestic provisions at the time (the Equality Act 2010 of course having come into force subsequently). BA was concerned to uphold its corporate image, and the provision, criterion or practice (PCP) at the relevant time was part of BA's uniform policy which prohibited the wearing of any visible item of jewellery around the neck. This was said by Ms Eweida to discriminate indirectly against Christians who wish to wear a visible cross.
The EAT dismissed Ms Eweida's appeal, as did the Court of Appeal. The ratio of the Court of Appeal's judgment was that Regulation 3(1)(b) required Ms Eweida to show that an identifiable group was disadvantaged by the PCP operated by BA. The claim had to fail, because Ms Eweida had not established that anyone other than herself had been affected by the PCP. Therefore, there was no indirect discrimination requiring justification and anything said by the Court of Appeal in relation to proportionality (for the purposes of the objective justification defence) was strictly obiter.
In Ms Chaplin's case (Chaplin v Royal Devon and Exeter NHS Foundation Trust  EqLR 548), the facts were very similar except that she worked as a nurse for an NHS Trust, which had quite different reasons for wishing to regulate its employees' attire (health, safety and hygiene). Her case was heard by Exeter employment tribunal, which similarly dismissed the claim on the basis of an absence of ‘group disadvantage'. She had identified one other person affected by the relevant PCP in the same way as herself, but that was not considered sufficient. In light of the higher level decisions in Eweida, the view was taken that domestic appeals would be fruitless and Ms Chaplin proceeded directly to her application to the ECtHR.
As regards Ms Ladele's case, she was a Registrar of births, marriages and deaths at the London Borough of Islington. She refused to conduct civil partnership ceremonies for gay couples on grounds of her Christian beliefs and was ultimately disciplined. She brought various claims in an employment tribunal, which upheld her indirect discrimination claim on the grounds that although the council's policy that it wished to provide its services on a non-discriminatory basis was clearly a legitimate aim, applying that policy strictly in respect of Ms Ladele was not proportionate because there were steps that could be taken to organise her work so that she would not have to conduct same-sex ceremonies. The EAT overturned that conclusion, finding that the council's action was proportionate, and the Court of Appeal upheld the EAT's decision (Ladele v London Borough of Islington  IRLR 211).
Mr. McFarlane's case was very similar to Ms Ladele's, except that he worked for a private organisation and declined to perform his relationship counselling duties for gay couples. He was eventually disciplined and dismissed, and brought various claims in the employment tribunal, which were dismissed. His indirect discrimination claim was dismissed on essentially the same basis as Ms Ladele's: while there was indirect discrimination, this was objectively justified as being a proportionate means of achieving a legitimate aim. The EAT upheld that decision, as did the Court of Appeal (McFarlane v Relate Avon Ltd  IRLR 872), which considered itself bound by the earlier decision in Ladele.
Ms Ladele and Mr. McFarlane also made applications to the European Court of Human Rights, and all four cases were joined together.
The ECtHR judgment
The ECtHR concluded that Ms Eweida's Art 9 right to manifest her religion had not been adequately protected by UK law. The right had been engaged (as it had been in all four cases), and the ECtHR rejected the notion that an applicant is required to establish that he or she acted in fulfilment of a duty mandated by the religion in question. Thus, the fact that wearing a cross is not required by Christianity is irrelevant, so long as there is a sufficiently close and direct nexus between the act of worship or devotion and the underlying belief.
However Art 9 is not an absolute right: Art 9(2) provides for the right to be subject to limitations that 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 protections of the rights and freedoms of others'. It is well established in Convention law that whether a prescribed legal limitation is permissible is to be assessed by the application of the concept of proportionality. A derogation that is prescribed by law and necessary in a democratic society must be in pursuit of a legitimate aim, and a proportionate means of achieving it, which requires ‘regard to 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' (para 84 of the ECtHR's judgment). While perhaps not absolutely identical tests, the approach to proportionality under the Convention will be instantly recognisable to domestic discrimination lawyers as being very similar to the objective justification defence applicable in cases of indirect discrimination.
The ECtHR concluded that it was disproportionate for Ms Eweida to be prevented from wearing a cross at work by a strict application of BA's uniform policy, and that in dismissing her tribunal claim domestic law failed to protect her from that infringement of her Art 9 right. In other words, domestic law should have operated in such a way that her employment tribunal claim succeeded. It was not an adequate answer to contend that she could simply have obtained work elsewhere without the same uniform policy, which was merely a factor to be weighed in the balance when considering the issue of proportionality. Since her application under Art 9 was upheld, the ECtHR did not consider it necessary to go on to consider her secondary application under Art 14 (prohibition of discrimination).
However, the ECtHR considered it was not disproportionate for fellow applicant Ms Chaplin to be prohibited from wearing the same kind of item in her work as a nurse (on health, safety and hygiene grounds). Neither was it disproportionate for Ms Ladele and Mr McFarlane to have been subject to disciplinary action for refusing to perform aspects of their duties (conducting civil partnership ceremonies for gay couples and providing relationship counselling for gay couples respectively) where such refusals amounted to infringements of the Convention rights of others under Art 14 (ie the right of homosexual people not to be discriminated against).
Thus, of the four applications it was only Ms Eweida's that succeeded.
Domestic consequences for indirect discrimination law
In Ms Eweida's case, what the Chamber of the European Court of Human Rights decided (it is worth remembering that for 3 months following the judgment being handed down, any party can attempt to refer the case to the Grand Chamber for reconsideration), was that United Kingdom law did not provide sufficient protection of her Art 9 right to manifest her religion.
The basis for that conclusion was that, while the BA policy of wishing to protect its corporate image by controlling what its employees wear at work (ie not permitting visible neck jewellery) was accepted as representing a legitimate aim, the effect of that policy on Ms Eweida was disproportionate in the Convention law sense and the interference with her Art 9 right not justified. Therefore the domestic law should have operated in such a way as to make the tribunal claim successful, seemingly via a finding that while the PCP operated by BA was in pursuit of a legitimate aim, its effect on Ms Eweida was disproportionate. The ECtHR appears simply to find that the Court of Appeal had reached the wrong conclusion on the question of proportionality, on the facts of the case. It says at para 93 that:
‘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...'
But at para 94:
‘The Court considers that, while this aim was undoubtedly legitimate, the domestic courts accorded it too much weight'.
And at para 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...'
This approach would not be problematic If the basis of the Court of Appeal's decision domestically had actually been that BA's refusal to allow Ms Eweida to wear her cross was a proportionate means of achieving a legitimate aim (such that any indirect discrimination was objectively justified): the net effect of the ECtHR's decision would be no more than that the Court of Appeal's conclusion on the issue of proportionality (common to both domestic and Convention law) was wrong on the facts. The operation of the domestic law would have remained intact.
But that was not the primary basis of the Court of Appeal's decision: strictly the question of objective justification under domestic discrimination law (and thus the proportionality question that it shares with the Convention law), did not arise, because the conclusion was that no indirect discrimination existed in the first place requiring justification. The clear reason for this was that there was found to be no ‘group disadvantage'.
In another analogous religion/belief discrimination case under domestic law, for a tribunal even to get to the point of determining the proportionality question correctly bearing in mind the views of the ECtHR in the context of the parallel Convention law assessment, it would need to have concluded already that there was ‘group disadvantage' and indirect discrimination requiring justification.
So, even in a case where the tribunal might now reach the correct conclusion on the facts on the issue of proportionality in light of the ECtHR's judgment, the claimant would still lose in the absence of group disadvantage, and the law would still fail to provide adequate protection of Art 9 rights. To avoid this position, arguably the tribunal would be obliged to interpret the domestic law in a manner consistent with the ECtHR's judgment and essentially thereby to disregard the question of group disadvantage: it would have to be content as to the presence of indirect discrimination in respect of the individual concerned (and hypothetically in respect of others), and such indirect discrimination would not be objectively justified, having regard to the question of proportionality.
Indeed, this aspect of the Court of Appeal's decision in Eweida was always controversial in light of the statutory language. What is now s 19 of the Equality Act 2010 provides that there will be indirect discrimination requiring objective justification where the employer ‘applies, or would apply' the PCP to everyone; that the PCP ‘puts, or would put' persons with whom the employee shares the relevant protected characteristic at a particular disadvantage; and that the PCP ‘puts, or would put' the claimant at that disadvantage.
Standing back, it is difficult to see how the use of the word ‘would', could have been intended to give rise to anything other than a requirement that others sharing the claimant's protected characteristic would hypothetically suffer the same disadvantage as the claimant.
While the Court of Appeal declined to give a definitive view about what exactly ‘would' means in this context, it did posit a spectrum of possible approaches. The ‘narrowest view' offered would certainly not be compatible with the ECtHR's judgment: it is very difficult to understand why a claimant should ever have been potentially required to prove that some of his or her colleagues might have had cases too, in order to be able to bring his or her own.
At the other end, on the ‘widest view', evidence would be needed to show that there are in society others who share the material religion or belief and would suffer the same disadvantage if they were to become BA employees. Adopting that approach in future cases might be a means of operating the domestic law of indirect discrimination in a manner consistent with the ECtHR's judgment.
But the Court of Appeal was very clear that even applying this approach, where the claimant is on the evidence the only person actually to have suffered the disadvantage in question at the particular workplace operating the PCP under scrutiny, that will not be enough. It seems likely that that position will have to change: it would be an unsatisfactory state of affairs if public sector employees should find themselves in a better position than their private sector colleagues by virtue of being able to enforce their Art 9 rights directly without recourse to indirect discrimination law. Further, it would arguably be equally unsatisfactory if the law were to produce different results for different employers applying the same indirectly discriminatory PCP, depending on whether the employer in question happens to have more than one employee that is affected.
The answer may well be to adopt the Court of Appeal's ‘widest view' as to the determination of indirect discrimination, coupled with a recognition that a single employee in the work force who is affected by an indirectly discriminatory PCP operated by the employer can have a claim. Even the Court of Appeal acknowledged that all three of its proposed approaches on their own presented difficulties.
Essentially, at least in religion or belief indirect discrimination cases, the pre-requisite concept of ‘group disadvantage' (meaning a requirement for more than one person in the work force to be affected) as espoused by the Court of Appeal has probably been rendered unlawful. The question then arises as to whether the same will apply in respect of other protected characteristics. It is true that the ECtHR declined to go on to consider Ms Eweida's case under Art 14, so the requirements of the ECtHR's judgment might be said to stretch no further than the religion or belief field. However, given that the additional hurdle of ‘group disadvantage' only arose for the first time in the Eweida case itself, if it does indeed fall away in the very context where it sprang up, the courts may well wonder whether there is any good reason for it to survive in any other.
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