On January 15, 2013, the European Court of Human Rights (ECHR) in Strasbourg released its ruling in the cases of four Christian employees who argued that they suffered from discrimination and that their employers encroached upon their right to religious freedom at work. All four applicants complained that domestic law had failed to adequately protect their right to manifest their religion. We provided a commentary on the case in a previous Slaw blog post here , so I will not go into details. Suffice it to say; only one of the four cases heard was successful in their claims reaffirming religious freedom is a right but not an absolute one.
The Court's judges ruled by five votes to two that British Airways violated Article 9 (freedom of religion) of the European Convention on Human Rights by making employee Nadia Eweida remove her crucifix at work. The Court concluded in the case of Mrs. Eweida that a fair balance had not been struck between the employee’s desire to manifest her religious belief and to be able to communicate that belief to others, and the employer’s wish to project a certain corporate image, no matter how legitimate that aim might be.
However, the judges were unanimous that there was no violation in the cases of: Nurse Shirley Chaplin, who was moved to a paperwork role after refusing to remove a crucifix, which it argued could cause injury when handling patients; Gary McFarlane, a marriage counsellor, who was sacked for refusing to give sex therapy to homosexuals; or Registrar Lillian Ladele, who was disciplined after she declined to conduct same-sex civil partnerships.
The principle stemming from this case is clearly laid out in the judgment; freedom of religion is:
“an essential part of the identity of believers and one of the foundations of pluralistic, democratic societies […] However, where an individual’s religious observance impinges on the rights of others, some restrictions can be made.”
The issue of religious freedom and how the right to religious expression interacts (and conflicts) with other rights is very complicated. Some people are quick to cry “discrimination” at the slightest sign of differential treatment; others are more willing to let things slide—to accept limits on their behaviour at work, for instance—in the name of tolerance and balance. Certainly there is room for more positive discussion and negotiation, but sensitivities often lead instead to antagonism and division.
Interestingly, of these four complaints, the one that succeeded—and seems to have garnered dissent—seems the most innocuous. The others—despite suffering unanimous defeats—must have been more difficult.
According to the media, the three who lost their appeals are believed to be considering a final appeal to the Grand Chamber of the European Court, where their cases could be heard before 17 judges.