European Court of Human Rights Rules on Religious Freedom Cases

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.

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Comments

  1. I don’t find the losers’ cases ‘difficult’ at all. The ECHR decided basically in the way I had suggested it would in a comment to your earlier blog post, and I’m no expert. Two of the losers simply refused to do their jobs. The other created a situation of physical risk to her and to her colleagues who might have to assist her. That sounds as if not expressing religion on the job was a bona fide occupational requirement.

    The woman who won was facing opposition to her crucifix based only on the desire to maintain a certain corporate image. It’s not very suprising that religious expression won over corporate image – on these facts, anyway.

    I would not bet much on a successful further appeal.

  2. I would be very interested in learning what remedy , if any, has been suggested or implemented for the other two complainants; the marriage counsellor and the Registrar.

  3. Here is an interesting similar case from the Minnesota court of appeals. Muslim taxi drivers in Minneapolis (a ‘large share’ of the total number of cabbies) wanted to refuse to drive passengers who were carrying alcohol, on the ground that their religion was opposed to the consumption of alcohol. The licensing commission threatened sanctions for such refusals, and the courts upheld the sanctions.

    So there too, if one has a licence from a public authority to provide a service to the public, then one must not let one’s religious beliefs interfere with providing it.

  4. Diane, since the judges were unanimous that there was no violation in the cases of the marriage counsellor and the Registrar, there was no remedy or suggested remedy.

  5. Yosie, I apologize for omitting the insertion of “workplace” in front of remedy. The court’s determination has no remedy, since no violation had occurred, but I would hope that the employer would take into consideration that the strong religious beliefs of the complainants might adversely impact on the clients that they are dealing with. The nurse was given a paperwork role rather than compromise the safety of the patients. In my view, the well-being of the client takes precedent and therefore, I hope sensitivity on both sides will bring into focus and balance what is in the best interests of the clients. Ultimately, the court can not teach tolerance it can only make a legal determination of it according to the law.