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

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The original publication date for this article was 21/09/2012.