Four Christians Arguing for Their Right to Religious Freedom at Work Before the European Court of Human Rights

On Wednesday September 5, 2012, the European Court of Human Rights (ECHR) in Strasbourg heard arguments from four workers challenging British judgments over the expressions of their religious faith in the workplace. Two are arguing for the right to wear a cross at work, while the others object to dealing with same sex couples.

In a previous Slaw post, we examined one of the cases; the case of Nadia Eweida, a former British Airways (BA) worker, who challenged her employer through the British courts after facing a disciplinary action of unpaid suspension from work in 2006 for refusing to take off her cross necklace. The employer claimed wearing the cross breached BA’s uniform code.

The other three cases heard by the ECHR involve,

  • Nurse Shirley Chaplin, 56, who was moved to a paperwork role by the Royal Devon and Exeter NHS Trust in Devon after refusing to remove a crucifix, which it argued could cause injury when handling patients
  • Gary McFarlane, 50, a marriage counsellor, who was sacked for refusing to give sex therapy to homosexuals
  • Registrar Lillian Ladele, 51, who was disciplined after she declined to conduct same-sex civil partnerships

The cases argue that employers are contravening articles nine and 14 of the European Convention on Human Rights, which prohibit religious discrimination and allow “freedom of thought, conscience and religion”, contending that the actions of their employers amounted to religious discrimination.

Written in several British media outlets including the Daily Mail, the Telegraph and the Independent,

James Eadie QC, representing the British Government, said the linked cases raised questions about employees’ rights to force their employers to alter workplace conditions.

“Individuals should be free to manifest their religion or belief unless a restriction can be justified. That does not mean, however, that states should require employers to recognise an enforceable right of employees to practice their religion or beliefs at work,” he said.

He continued: “All the applicants were able to manifest their religious belief in many ways outside the professional sphere. The court’s jurisprudence is clear that employees are free to resign if they consider that the requirements of their employment are incompatible with their religious beliefs.

The convention protects individuals’ rights to manifest their religion outside their professional sphere. However, that does not mean that in the context of his or her employment an individual can insist on being able to manifest their beliefs in any way they choose.”

He added: “There is no basis for interfering with that conclusion.”

This means that these workers with strong religious beliefs are free to express their faith privately but cannot insist their employer accommodate them at the workplace.

Further statements on the hearing published in the media,

Dinah Rose QC, representing Lillian Ladele, argued that “the logical implication of the government’s assertion is the rather startling one that a state employer could have a policy of refusing to employ practising Jews and say that was not a violation if other employers were prepared to employ them.”

James Dingemans QC, representing Nadia Eweida, told the court that that British Airways’ policy at the time was that religious items could be worn only if they were a “mandatory scriptural requirement”, which included hijabs or turbans but not crosses.

Ms Eweida “found the requirement to conceal (the cross), sat next to colleagues allowed to wear other religious symbols, an insult to her Christianity and to her”.

The Christian Legal Centre, which is supporting Mr McFarlane and Ms Chaplin, accused David Cameron of “hypocrisy”, quoting him as saying that the wearing religious symbols at work was “a vital religious freedom”.

But Keith Porteous Wood, of the National Secular Society (NSS) warned that a victory for the four would be “bad news” for employers and gay people, adding: “Any further accommodation of religious conscience in UK equality law would create a damaging hierarchy of rights, with religion trumping all.”

He said. “This is likely to be a landmark case determining the future direction of equality law in the UK, and potentially also in Europe.”

The hearing was adjourned and the decision from the court has been reserved, and could take several months before it is released. The cases provide a test for the European court, which has in the past allowed member states considerable leeway concerning workplace tolerance of religious beliefs and symbols.

While freedom of religious expression and faith practices are widely accepted and protected, here we see several examples where individuals’ beliefs come into conflict with workplace mandates, and also with basic human rights. Which should come first, a right or a freedom? By definition, a human right is paramount over freedoms. However, deciding rulings based on the nuances of these cases could potentially set precedences for cases in the future that may complicate the prioritization of rights over freedoms. We’ll stay tuned for the human rights court’s rulings.

Comments

  1. I find it difficult to reconcile the statement, “Individuals should be free to manifest their religion or belief unless a restriction can be justified.” with the British Airways policy as stated here.

  2. Is there a meaningful distinction between a ‘right’ and a ‘freedom’? Are they not just different ways of phrasing the same idea? Do I not have a right to do that which I am free to do? I would hesitate to build much of a legal structure on the distinction.

    Is there room in at least some of these cases for the good old ‘bona fide occupational qualification’ that may justify the restriction? The cases become quite different with that kind of analysis.

    i) display of religious symbol: I find it hard to justify a ban on a display that does not interfere with the ability to perform the work. The fact that I may have to deal with an employee of a retailer or service provider or public body who has different religious beliefs than mine is just life in the modern and diverse community, and I had better get used to it. I might be prepared to entertain the kind of distinction that François Legault was talking about lately, where people in enforcement or adjudicative positions may not broadcast their religion where there may be fears of discrimination (though maybe it’s better that those beliefs are public, to give warning!).

    In some cases it may matter just how strong the religious injunction is to wear something – so a Sikh can wear a knife to school (subject to proper concealment and security) but I can’t. But we should rely on that as little as possible, since (a) it’s sometimes hard to tell – some say wearing a hijab is a religious obligation, some say it is simply a cultural preference (and should human rights law defend cultural preferences? why not?), and (b) the right to display one’s belief is part of the right to believe and should not be restricted just because one is not obliged to display it.

    If the religious symbol does interfere with the work, like something on a chain when one is operating machinery, then a minimal restriction is OK. Likewise hard hats for Sikhs in construction but not regular hats in police work.

    ii) refusal to do the job: I think it is entirely justified to find that doing the job set out in one’s job description is a BFOQ, and one should not be able to refuse to do it on the grounds that doing it with respect to people who have a right to have it done would offend one’s religious beliefs. The right to the service prevails easily over the right to believe at their expense.

    So in my view the two opposed to doing their job for same-sex couples lose; the woman who wants to display her crucifix working for the airline wins; the woman handling patients has to have a reasonable-sized crucifix, and even there, it depends: is she handling people who may get violent and grab anything loose? That’s to be determined on a bona fide basis.

    I recognize that there may be ways in some circumstances to accommodate the anti-homosexual folks, by having someone else step into their positions for the particular clients. In my personal view, that’s going too far. Some kinds of religious expression do not deserve public protection, and that’s one of them. They can believe what they want, they can preach what they want off the job, but they can’t refuse to do their job.

    And who gets to decide which religious beliefs justify refusing to do what jobs? Can a marriage commissioner or registrar refuse to perform or recognize a marriage between a member of his or her religion and someone not of that belief, though the church would refuse to perform it? a marriage between a member of his or her religion and someone who has been divorced, though the church would refuse to perform it? There are lots of religious grounds on which to be uncomfortable with a marriage. Why should any of them be permitted to bar someone from a public service to which the law says they are entitled? Why is being anti-homosexual a stronger ground to permit refusal to do one’s job than being anti-divorce?

    It will be interesting to see what the ECHR makes of it all.