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On 4 September 2012 the landmark test cases of Eweida and
Chaplin v the United Kingdom and Ladele and McFarlane v the United
Kingdom went before the European Court of Human Rights
("ECtHR"). The applicants each allege that there has been
a violation of Articles 9 and 14 of the European Convention of
Human Rights, which prohibit religious discrimination and protect
the right to manifest one's religious beliefs.
All four applicants are practising Christians, who were either
dismissed or disciplined for refusing to comply with their
employers' instructions on the basis that those instructions
conflicted with their religious beliefs. Nadia Eweida and Shirley
Chaplin were restricted from visibly wearing a cross at work. Gary
McFarlane was dismissed from his job as Relate counsellor for
refusing to provide psycho-sexual counselling to same-sex couples.
Lilian Ladele was disciplined for refusing to conduct same-sex
civil partnership ceremonies.
The applicants appealed to the ECtHR after their claims were
dismissed by the tribunals and courts in England & Wales. The
ECtHR has now heard the arguments from both sides but it will be
several weeks before the judgment is issued.
James Eadie QC, who is representing the government, commented that
"the court's jurisprudence is clear and consistent, it is
to this effect 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. Other rights...are
to be respected."
The ECtHR has previously held that a manifestation of a belief is
only protected if it can be shown to be an essential requirement of
that belief rather than behaviour which is merely prompted by it.
However, the Equality and Human Rights Commission has warned that
more recent case law suggests that the ECtHR has adopted a wider
approach, protecting a manifestation "if it is motivated or
inspired by a genuinely held belief that attains a certain level of
seriousness and cogency and it is not unreasonable."
A decision in favour of the applicants will impact way in which
the UK courts interpret the law in future. In considering whether
discrimination has occurred, the courts and tribunals may need to
focus on whether an employer could have done more to accommodate an
employee's religious beliefs. However, employers will still be
able to justify their actions on the basis that they were a
proportionate means of achieving a legitimate aim.
The cases touch on a complex and sensitive issue: how to balance
the right to manifest religion with the rights of others. Whatever
the ECtHR decides, both individuals and employers will welcome a
clarification of the law in this area.
This article was written for Law-Now, CMS Cameron
McKenna's free online information service. To register for
Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance
only. The information and opinions expressed in all Law-Now
articles are not necessarily comprehensive and do not purport to
give professional or legal advice. All Law-Now information relates
to circumstances prevailing at the date of its original publication
and may not have been updated to reflect subsequent
developments.
The original publication date for this article was
21/09/2012.
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