On January 15, 2013, the Strasbourg Court issued its decision in the case of Eweida and Others v. The United Kingdom. Four applications alleging a breach of the right to freedom of thought, conscience and religion (Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("Convention")) and the right to enjoy such freedoms without discrimination (Article 14 of the Convention) were heard before seven judges.
The first claimant was British Airways ("BA") check-in employee Nadia Eweida. She refused to remove the visible crucifix she wore on a necklace which breached BA's uniform policy in force at the time. Nurse Shirley Chaplin, the second claimant, refused to take off her visible crucifix when her employer, The Royal Devon and Exeter NHS Foundation Trust, requested that she do so because of concerns that a patient might pull on her necklace, or it could come into contact with an open wound.
Lillian Ladele (the third claimant) and Gary McFarlane (the fourth claimant), both Christians, refused to perform aspects of their job for homosexual couples and were disciplined. Ladele refused to carry out civil partnerships, and McFarlane refused to provide psycho-sexual therapy for homosexual couples.
The European Court of Human Rights ("ECHR") held that in Eweida's case, there had been a violation of Article 9 of the Convention but no such violation in respect of Chaplin, Ladele and McFarlane. Why the distinction?
In Eweida's case, whilst the aim of projecting a certain corporate image was legitimate, the courts had applied too much weight to that aim and found that it was not proportionate to justify interfering with Eweida's right to freedom of thought, conscience and religion (particularly as her crucifix was discreet and could not, in the ECHR's view, have detracted from her professional appearance).
In the other cases, the ECHR recognised that a "wide margin of appreciation" must be given to allow decision-makers to weigh up the reasons for interfering with a right to manifest religious beliefs and consider if that reason ousts Article 9. NHS Trust managers were best placed to make decisions on clinical safety, and therefore Chaplin failed to show that the NHS Trust managers had acted disproportionately in requiring her to remove her crucifix necklace. Similarly, Ladele was employed by a local authority which was wholly committed to promoting equal opportunities and required its employees to assist by acting in a manner consistent with this. Disciplinary action fell within a margin of appreciation open to the local authority when she refused to comply with its policy aims.
Despite the fact that McFarlane was employed within the private sector, the result was the same as Ladele. His employer, Relate Avon Ltd. ("Relate"), had to ensure its employees provided a service without discrimination. Relate acted within the margin of appreciation in dismissing him for failing to comply with this requirement.
This ECHR decision provides employers with some guidance in understanding what action may fall within the margin of appreciation and which may justify interfering with an individual's right to freedom of thought, conscience and religion.
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