Who decides what a valid religious practice is, and is it really better to be unemployed if an employer changes an employee’s terms and conditions?
For the past few years, four cases have been winding their ways through the judicial system in Britain, and this month they ended up in the European Court of Human Rights.
The common thread in the conjoined appeals is that each of the appellants claims that their religious freedom under Article 9 of the European Convention on Human Rights (ECHR) has been breached by the actions of their employers, either in forbidding them from a positive action (Eweida and Chaplin wearing crosses) or by preventing them from omitting actions in the course of their employment (McFarlane and Ladele refusing to provide services to same-sex couples). The first pair of cases – Eweida and Chaplin – are the subject of this article; the second pair will be considered in a forthcoming post.
Nadia Eweida is a Coptic Christian and an airline employee who took to wearing a small, smart crucifix outside her issued uniform. The airline, British Airways, prohibited the visible wearing of items (it could be worn under the uniform) unless such an item was mandated by a religion. Approved items included the hijab, turban and skull cap or kippa. Eweida was suspended from her job for several months until BA changed its policy. Today she is claiming unpaid wages from her time suspended, on the grounds she was indirectly discriminated against because of her religion.
Shirley Chaplin is nurse working in the NHS. Throughout, she was more trenchant in linking her practice of wearing a cross with the very content of her Christianity, as a subtle mode of evangelisation and to keep her personal standards in check with Christian teaching. The NHS banned necklaces of all types on the grounds that nursing staff could be injured if confused patients pulled at them, a problem exacerbated by the geriatric patients Chaplin was working with. NHS managers suggested she cover the cross with a turtle neck jumper – which Chaplain refused – after the health authority introduced a new uniform (with a V neck design).
The British courts dealt with the cases in slightly different ways. In Eweida’s case, the Court of Appeal upheld an earlier decision that found her religious practice to be a characteristic not protected in law, because wearing across is a feature of only a few Christians. Banning presentation of the cross when wearing a uniform indirectly discriminated against Eweida, and not against any particular religious group. If, however, such a ban did constitute indirect discrimination, then it was likely to be a disproportionate means of achieving a legitimate aim, viz. giving BA a consistent, professional and reassuring image world wide. Specifically in relation to Article 9, the Court viewed its protections as not extending to every act motivated or inspired by a religion or belief, with Lord Justice Sedley (when giving the only judgment of the Court) noting that “in exercising his freedom to manifest his religion, an individual may need to take his specific situation into account” .
Sedley LJ further noted that the ECtHR was reluctant “to find an interference with the right to manifest religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to practise or observe his or her religion without undue hardship”. In other words, if it’s not compulsory employment like national service, an employee who considers their rights have been infringed is free to quit the job and look for another – even if the terms and conditions of that job were unilaterally changed after the employee started working.
Chaplin’s case was rejected by the first instance employment tribunal because the prohibition on necklaces applied across all faiths and none, and was based on health and safety needs rather than aesthetics or economics. Chaplin pointed out that the same health authority had given permission for two doctors to wear close-fitting hijab headscarfs.
So what does the European Court now have to decide? There are three questions. First, were the restrictions in either case an interference with the right to manifest religion or belief, as protected by Article 9 of the ECHR? Second, if the were such interferences, can they be justified? In Eweida’s case, the Court must consider whether the UK’s positive obligation to protect her Article 9 rights was breached – that is, her cross-wearing was an accepted manifestation of Christianity that BA should be forced to accept by the UK government. In Chaplin’s case, because the NHS is a branch of the UK government, the dispute is whether the ban – on the grounds of health and safety – was “necessary in a democratic society”. Finally, did if Article 9 breaches were found in both cases, did they constitute breaches of Article 14 of the Convention, which prohibits discrimination in general and specifically mentions religious discrimination?
Aside from the questions of proportionality and balance between, for instance, the NHS’ duty to safeguard its employees from harm and the freedom of those employees to wear religious jewellery, there is an interesting question relating to the linkage between cross-wearing and religiosity. Why should it matter that no Christian denomination prescribes cross-wearing as a mandatory religious observance? Effectively what the Courts have done, is decide what a legitimate religious practice is, and what is not. They did this without hearing ‘expert’ evidence except at the first instance tribunals, and even then that evidence was predominantly anecdotal.
It is to be hoped that the European Court – whose jurisdiction spans almost the continent of Europe, and encompasses religious practices from Orthodox Russian and Greeks to Muslim Uighar émigrés and established Catholic churches – will endeavour to draw the boundary of legitimate religious expression as widely as possible. In fact, following the broad lines taken by the US Supreme Court in First Amendment cases of this kind, the European Court should consider allowing anything to be deemed religious, and thus capable of protection, unless it is genuinely offensive to public morals. Given that in fact religious practices do not evolve at anything other than a glacial pace, the likelihood of an ambush on employers by religious employees with far-fetched manifestations of their faith is very unlikely.
It is also to be hoped that the idea that a religious employee, who does not like their adjusted terms and conditions of service, should resign from that position and seek another, is squashed flat. Both Eweida and Chaplin were very good at their jobs, firmly embedded in their positions and with solid careers in their professions both behind and in front of them. To suggest that they should throw away their work histories – particularly at a time of deep economic recession, when unemployment is high and job vacancies low – and seek out new employment in the hope that their future employers are more sympathetic, is ludicrous.
Widen the scope of protected religious manifestations and debunk the ‘better off unemployed’ myth peddled by Sedley LJ: protect the idiosyncracies of faith and individual religious practice as far as possible, so that the little observances and quirks which give flavour and colour to life can flourish, and not be rubbed out in the name of sterile uniformity.