Religious Symbolism and Conscientious Objection in the Workplace: An Evaluation of Strasbourg's Judgment in Eweida and others v United Kingdom
Published online by Cambridge University Press: 10 April 2013
The judgment of the European Court of Human Rights in Eweida and others v United Kingdom1 related to two pairs of cases.2 The first pair concerned a British Airways check-in clerk and a nurse, each of whom complained that dress codes at their respective places of work prevented them from openly wearing a small cross on a chain around their neck. In the second pair, a registrar of marriages and a relationship counsellor refused to offer their respective services to same-sex couples on the basis that homosexual acts were incompatible with their religious beliefs. Having failed to obtain relief in the domestic courts, all four applicants took their claims to Strasbourg, which heard oral argument last September. Judgment was pronounced on 15 January 2013. This Comment considers the broad thrust of the judgment, particularly the threefold manner by which the Court has clarified and embedded the right to freedom of religion, the practical outcome in the individual cases, and the likely effect of the judgment upon future litigation in the domestic courts of the United Kingdom.
- Copyright © Ecclesiastical Law Society 2013
1 Eweida and others v United Kingdom App Nos 48420/10, 59842/10, 51671/10 and 36516/10 (ECtHR, 15 January 2013, Fourth Section).
2 The author acted for the Bishop of Chester, the (then) Bishop of Blackburn and the Premier Christian Media Trust, who were among those granted permission to intervene in the proceedings. This Comment is based upon a paper delivered as part of Francis Taylor Building's Breakfast Briefing series on 16 January 2013 and is an expanded version of Hill, M, ‘Religion at work’ (2013) 163 New Law Journal 89–90Google Scholar, available at <http://www.newlawjournal.co.uk/nlj/content/religion-work>, accessed 8 February 2013. I am grateful to the participants at the Briefing, particularly Mark Jones of Ormerods Solicitors, and to Dr Russell Sandberg and Charles George QC, each of whom generously commented upon an early draft.
3 Convention for the Protection of Human Rights and Fundamental Freedoms, Council of Europe, 4 November 1950.
4 Bratza, N, ‘The “precious asset”: freedom of religion under the European Convention on Human Rights’, in Hill, M (ed), Religious Discrimination in the European Union (Trier, 2012), pp 9–26Google Scholar, reproduced in (2012) 14 Ecc LJ 256–271. Judge Bratza's title borrows from the Court's own jurisprudence. His concluding words were indeed prophetic: ‘What I am sure of is that, whatever the result [in Eweida and others v UK], the Court's decisions will provide ample material for another article in the future.’
5 See Kokkinakis v Greece, App no 14307/88 (ECtHR, 25 May 1993).
6 See Kokkinakis, para 31; also Leyla Şahin v Turkey App no 41774/98 (ECtHR, 10 November 2003) (Grand Chamber).
7 Significantly, this is the first adverse determination for the United Kingdom on Article 9 since it became a signatory to the Convention. It also runs counter to the trend identified by Professor Silvio Ferrari in his systematic analysis of Strasbourg judgments on pan-European violations of religious freedom: Ferrari, S, ‘Law and religion in a secular world: a European perspective’, (2012) 14 Ecc LJ 363 ffGoogle Scholar. For an authoritative analysis of the history of the Court's treatment of Article 9 applications, see Martínez-Torrón, J, ‘Religious liberty in European jurisprudence’, in Hill, M (ed), Religious Liberty and Human Rights (Cardiff, 2002) pp 99–127Google Scholar.
8 As understood and interpreted by certain domestic courts, as to which see the more detailed discussion below.
9 Eweida and others v UK, at para 81.
10 App no 7552/09, communicated to the Government on 26 April 2011. The challenged decision of the Judicial Committee of the House of Lords can be found at Gallagher (Valuation Officer) v Church of Jesus Christ of Latter-day Saints  UKHL 56.
11 R v Secretary of State for Education and Employment and others ex parte Williamson and others  UKHL 15, at para 22.
13 Khaira v Shergill  EWCA Civ 983. Note that permission to appeal was granted by the Supreme Court on 4 February 2013.
14 In this regard, the decision of Michael Supperstone QC sitting as a Deputy Judge of the High Court in R (On the application of Playfoot (A Child)) v Millais School Governing Body  EWHC Admin 1698 no longer represents the law. The judge's test on manifestation was founded on a requirement of ‘perceived obligation’ (in this instance, concerning a ‘purity’ ring), which was itself derived from a misreading of Lord Nicholls’ speech in Williamson (above). Note also the distinction drawn by Cranston J between Hindu and Sikh cremation rituals in a detailed judgment in Ghai v Newcastle City Council  EWHC 978 (Admin) at paras 99–102, where open air funeral pyres were found to be doctrinally mandated under Hindu teaching but not Sikh. This lengthy and erudite analysis was rendered entirely nugatory by the Court of Appeal's disposal of the matter on an entirely different basis:  EWCA Civ 59.
15 R (Watkins-Singh) v Aberdare Girls High School  EWHC 1865.
16 Statutory defence to criminal charge of possession of a bladed article under section 139 of the Criminal Justice Act 1988.
17 Noah v Desrosiers  UKET 2201867/07, 29 May 2008.
18 Eweida and others v UK, at para 82.
19 Ibid, citing Skugar and others v Russia App no 41615/98 (ECtHR, 18 January 2001); Arrowsmith v The United Kingdom, Commission's report of 12 October 1978, Decisions and Reports 19, p 5; C v The United Kingdom, Commission decision of 15 December 1983, DR 37, p 142; Zaoui v Switzerland App no 40010/04 (ECtHR, 3 December 2009).
20 Eweida and others v UK, at para 82.
22 Judges Bratza and David Thór Björgvinsson, dissenting on the disposal of the Eweida application (which they would have dismissed) but otherwise concurring in the result. The UK government, both in its written submissions and in oral argument before the Court, had strenuously argued that the desire of Ms Eweida and Ms Chaplin to wear a visible cross, ‘while it may have been inspired or motivated by a sincere religious commitment, was not a recognised religious practice or requirement of Christianity, and did not therefore fall within the scope of Article 9’: see the summary of the parties’ arguments at para 58 of the judgment.
23 Eweida and others v UK, dissenting opinion, para 2(a). In addition to the written submissions on behalf of the Bishops of Chester and Blackburn and Premier Christian Radio, there was an intervention by Bishop Michael Nazir-Ali setting out the history of the cross as a Christian symbol.
24 For an incisive critique of the Court of Appeal judgment in Eweida, see N Hatzis, ‘Personal religious beliefs in the workplace: how not to define indirect discrimination’, (2011) 74 MLR 287–305.
25  EWHC 1452 (Admin) at para 37.
26  EWHC 1108 (Admin).
28 This has conventionally been styled the ‘specific situation’ rule: its flawed logic and questionable outworking has been subject to sustained academic criticism, not least for the unevenness of its application in the domestic courts. See, by way of example, Hill, M and Sandberg, R, ‘Is nothing sacred? Clashing symbols in a secular world’, (2007) Public Law 488–506Google Scholar; Hill, M, Sandberg, R and Doe, N, Religion and Law in the United Kingdom (Alphen aan den Rijn, 2011), paras 77–82Google Scholar; Sandberg, R, Law and Religion (Cambridge, 2010)Google Scholar, pp 84 ff.
29 This argument had also been robustly advanced by the UK government: see Eweida and others v UK, at para 59, where its submissions are summarized as follows: ‘The fact that these applicants were free to resign and seek employment elsewhere, or to practice [sic] their religion outside their work, was sufficient to guarantee their Article 9 rights under domestic law’.
30 Eweida and others v UK, at para 83.
31 See n 22 above.
32 Eweida and others v UK, dissenting opinion, at para 2(b) (emphasis added).
33 See, for example, Hill, M, ‘A new dawn for freedom of religion’, in Hill, M (ed), Religious Liberty and Human Rights (Cardiff, 2002), pp 1–13Google Scholar.
34 Although this is not mentioned in either the majority or minority opinion.
35 In Jewish Liturgical Association Cha'are Shalom Ve Tsedek v France (2000) 9 BHRC 27, it was held that the French prohibition on ritual slaughter did not amount to an interference with the manifestation of Jewish religious beliefs, because supplies of meat, appropriately slaughtered, could be sourced from Belgium. The majority sought to justify this ostensibly harsh decision by distinguishing between mere consumption in relation to which there was no interference, and slaughter per se: para 83. It has never been considered a wholly satisfactory decision and the better view would be that it should no longer be followed, even on this limited fact-specific basis.
36 Eweida and others v UK, dissenting opinion, at para 2(b). This could be seen as tacit acknowledgment that a hierarchy of rights had been developing in Strasbourg with freedom of religion becoming of lesser importance. To the extent that this may have been the case, its express disavowal is to be welcomed.
37 R (Begum) v Headteacher and Governors of Denbigh High School  UKHL 15. See also R (On the application of X) v Y School  EWHC (Admin) 298, Silber J.
38 See Copsey v WBB Devon Clays Limited  EWCA Civ 932, particularly Mummery LJ at para 3 and Neuberger LJ at para 91.
39 Eweida and others v UK, at para 109.
40 The analytical approach for the future will be that of Lord Nicholls and Baroness Hale in Begum (see above), as opposed to that of Lord Bingham of Cornhill, Lord Hoffmann and Lord Scott of Foscote. In the cases such as Begum where certain judges rejected claims under one or more of the gateway filters under Article 9(1), they nevertheless went on to consider how they would have disposed of the cases under Article 9(2), which discussion (through strictly obiter) will nonetheless inform future determinations.
41 Since many domestic judgments despite rejecting the claim as not engaging Article 9(1) went on to consider the 9(2) factors on an obiter basis in any event, there is still a rich vein of judicial comment profitably to be mined.
42 This evolution was correctly predicted in D Whistler and D Hill, Religious Discrimination and Symbolism: a philosophical perspective (Liverpool, 2012) being the final report of the scoping study Philosophy of Religion and Religious Communities: defining beliefs and symbols, although the expression ‘practical turn’ coined by the authors for this refocusing of judicial approach has yet to gain traction. The report is available at <http://pcwww.liv.ac.uk/~worc2329/rdreportfinal.pdf>, accessed 21 January 2013.
43 Eweida and others v UK, at paras 47–49.
44 See section 6 of the Civil Union Act 2006 (South Africa).
45 See Eweida and others v UK, at para 106 (Ladele) and para 109 (McFarlane).
47 In essence, the majority considered that insufficient weight was given to one factor in the balancing exercise. It is unlikely that a domestic appellate court would overturn a first instance decision on so slender a ground. See generally part 52 of the Civil Procedure Rules 1998 (as amended), particularly para 52.11.4 of the White Book: authorities such as Tanfern Limited v Cameron MacDonald  1 WLR 311 indicate that an appellate court may only substitute its own exercise of discretion if the first instance court ‘has exceeded the generous ambit within which a reasonable disagreement is possible’. The facts of Eweida permit of a number of interpretations but it would be difficult to categorise the domestic courts’ decision as ‘plainly wrong’ or ‘an error of principle’, which are alternative formulations of this test.
48 The judgment recites at para 98 that: ‘The evidence before the Employment Tribunal was that the applicant's managers considered there was a risk that a disturbed patient might seize and pull the chain, thereby injuring herself or the applicant, or that the cross might swing forward and could, for example, come into contact with an open wound.’
49 The quotation is lifted from ibid, at para 99, while the reference to projection of a corporate image is at para 94.
51 In fairness, the hospital trust in Chaplin offered an alternative post and ways of displaying Christian symbolism other than a cross on a necklace.
52 See M Hill, ‘Strasbourg marks a sea-change in tolerance’, Church Times, 25 January 2013.
53 The Employment Tribunal at para 87 of Eweida and others v UK noted ‘We heard evidence that there was no diminution in the service offered by reason of Ms Ladele not undertaking civil partnership duties. [Islington's witnesses] confirmed in their evidence that they could provide the first class service without Ms Ladele undertaking civil partnership duties.’
54 Judges Vučinič and Gaetano clumsily referred at para 5 to the ‘backstabbing of [Ms Ladele's] colleagues and the blinkered political correctness of the Borough of Islington (which clearly favoured “gay rights” over fundamental human rights)’, giving the impression (not least from the use of inverted commas) of trivializing the issue of equal treatment and sexual orientation.
55 Barely seventeen lines in para 106 of the majority opinion.
56 See generally, M Rynkowski, ‘The background to the European Union Directive 2000/78/EC’, in Hill, Religion and Discrimination Law, pp 395–408. For some hints on collaborative practice as between the Strasbourg and Luxembourg courts, see the views expressed by a former President of the European Court of Human Rights when delivering the 2013 Sir David Williams Lecture: J-P Costa, ‘The relationship between the European Court of Human Rights and national constitutional courts’, University of Cambridge, 15 February 2013.