Eweida And Others v The United Kingdom: ECHR 15 Jan 2013

Eweida_ukECHR2013

The named claimant had been employed by British Airways. She was a committed Christian and wished to wear a small crucifix on a chain around her neck. This breached the then dress code and she was dismissed. Her appeals had failed. Other claimants had variously relied upon their Christian faith to justify refusal to counsel gay couples, to conduct civil partnership ceremonies, and, again, to wear a crucifix.
Held: The appeal of the named claimant succeeded, but the others each failed. Whilst the right to freedom of belief is absolute, the freedom to manifest that belief is qualified. However: ‘any limitation placed on a person’s freedom to manifest religion or belief must be prescribed by law and necessary in a democratic society in pursuit of one or more of the legitimate aims set out therein.’
As to Eweida: ‘where there is no evidence of any real encroachment on the interests of others, the domestic authorities failed sufficiently to protect the first applicant’s right to manifest her religion, in breach of the positive obligation under Article 9.’and ‘Even where the belief in question attains the required level of cogency and importance, it cannot be said that every act which is in some way inspired, motivated or influenced by it constitutes a ‘manifestation’ of the belief. Thus, for example, acts or omissions which do not directly express the belief concerned or which are only remotely connected to a precept of faith fall outside the protection of Article 9 paragraph 1 (see Skugar and Others v. Russia (dec.), no. 40010/04, 3 December 2009 and, for example, 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 (dec.), no. 41615/98, 18 January 2001). In order to count as a ‘manifestation’ within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of worship or devotion which forms part of the practice of a religion or belief in a generally recognised form. However, the manifestation of religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. In particular, there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question (see Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, paragraphs 73-74, ECHR 2000-VII; Leyla Sahin, cited above, paragraphs 78 and 105; Bayatyan, cited above, paragraph 111; Skugar, cited above; Pichon and Sajous v. France (dec.), no. 49853/99, Reports of Judgments and Decisions 2001-X). (Emphasis added).’
As to Ms Chaplin, ‘the second applicant’s determination to wear the cross and chain at work was a manifestation of her religious belief and that the refusal by the health authority to allow her to remain in the nursing post while wearing the cross was an interference with her freedom to manifest her religion . . 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. There was also evidence that another Christian nurse had been requested to remove a cross and chain; two Sikh nurses had been told they could not wear a bangle or kirpan; and that flowing hijabs were prohibited. The applicant was offered the possibility of wearing a cross in the form of a brooch attached to her uniform, or tucked under a high-necked top worn under her tunic, but she did not consider that this would be sufficient to comply with her religious conviction . . the Court is unable to conclude that the measures of which Ms Chaplin complains were disproportionate.’
The third applicant was a Christian, holding the orthodox Christian view that marriage is the union of one man and one woman for life. She believed that same-sex unions are contrary to God’s will and that it would be wrong for her to participate in the creation of an institution equivalent to marriage between a same-sex couple.
Held: The Court did not consider that the national authorities, that is the local authority employer which brought the disciplinary proceedings and also the domestic courts which rejected the applicant’s discrimination claim, exceeded the margin of appreciation available to them.
Mr McFarlane, employed by a private company with a policy of requiring employees to provide services equally to heterosexual and homosexual couples, he had refused to commit himself to providing psycho-sexual counselling to same-sex couples, which resulted in disciplinary proceedings being brought against him.
Held: ‘for the Court the most important factor to be taken into account is that the employer’s action was intended to secure the implementation of its policy of providing a service without discrimination. The State authorities therefore benefitted from a wide margin of appreciation in deciding where to strike the balance between Mr McFarlane’s right to manifest his religious belief and the employer’s interest in securing the rights of others. In all the circumstances, the Court does not consider that this margin of appreciation was exceeded in the present case.’

David Thor Bjorgvinsson, P
59842/10 – HEJUD, [2013] ECHR 37, 48420/10, 36516/10, 51671/10, [2013] IRLR 231, (2013) 57 EHRR 8, 34 BHRC 519, [2013] Eq LR 264
Bailii
European Convention on Human Rights, The Equality Act (Sexual Orientation) Regulations 2007, The Employment Equality (Religion or Belief) Regulations 2003
Citing:
At EATEweida v British Airways Plc EAT 20-Nov-2008
EAT RELIGION OR BELIEF DISCRIMINATION
The claimant was a Christian who objected to BA’s policy of requiring jewellery to be worn concealed by the uniform. There were exceptions for those whose religions . .
At CA (Costs)Eweida v British Airways plc CA 16-Oct-2009
Appeal against refusal of protective costs order. The claimant said that she had been discriminated against when she was refused permission to wear her christian cross with her uniform. . .
At CAEweida v British Airways Plc CA 12-Feb-2010
The court was asked whether, by adopting a staff dress code which forbade the wearing of visible neck adornment and so prevented the appellant, a Christian, from wearing with her uniform a small, visible cross, British Airways (BA) indirectly . .
Statement of FactsEweida And Chaplin v The United Kingdom ECHR 12-Apr-2011
Statement of Facts and questions to the parties . .
At EATLondon Borough of Islington v Ladele EAT 19-Dec-2008
EAT RELIGION OR BELIEF DISCRIMINATION
The claimant was a Registrar who, amongst other things, registered marriages. When the Civil Partnerships Act came into force, she refused to participate in registering . .
At EATMcFarlane v Relate Avon Ltd EAT 30-Nov-2009
EAT RELIGION OR BELIEF DISCRIMINATION
UNFAIR DISMISSAL – Reason for dismissal
Christian counsellor dismissed by Relate for failing to give an unequivocal commitment to counsel same-sex couples.
At CALadele v London Borough of Islington CA 15-Dec-2009
The appellant was employed as a registrar. She refused to preside at same sex partnership ceremonies, saying that they conflicted with her Christian beliefs.
Held: The council’s decision had clearly disadvantaged the claimant, and the question . .
At CAMcFarlane v Relate Avon Ltd CA 29-Apr-2010
The employee renewed his application for leave to appeal against refusal of his discrimination claim on the grounds of religious belief. He worked as a relationship sex therapist, and had signed up to the employer’s equal opportunities policy, but . .
Statement of Facts and QuestionLadele and McFarlane v The United Kingdom ECHR 12-Apr-2011
Statement of Facts and Questions to parties . .
CitedRegina v Secretary of State for Education and Employment and others ex parte Williamson and others HL 24-Feb-2005
The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner. . .
CitedSelmouni v France ECHR 28-Jul-1999
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Violation of Art. 3; Violation of Art. 6-1; Non-pecuniary damage – financial award; Costs and expenses award – . .
CitedKokkinakis v Greece ECHR 25-May-1993
The defendant was convicted for proselytism contrary to Greek law. He claimed a breach of Article 9.
Held: To say that Jehovah’s Witness were proselytising criminally was excessive. Punishment for proselytising was unlawful in the . .
CitedLeyla Sahin v Turkey ECHR 10-Nov-2005
(Grand Chamber) The claimant, a muslim woman complained that she had not been allowed to attend lectures wearing a headscarf.
Held: Any limitations on the right to an education must not curtail it ‘to such an extent as to impair its very . .
CitedBegum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
CitedThe Moscow Branch of The Salvation Army v Russia ECHR 5-Oct-2006
The Salvation Army complained that the respondent had refused to allow its registration as a religious association, thus denying its members the right to practice their religion.
Held: The court stressed both the importance of the rights . .
CitedGldani Congregation of Jehovah’s Witnesses Others v Georgia ECHR 3-May-2007
The applicant claimed that the police had known in advance of an attack upon the applicants by religious opponents, which he said would constitute inhuman or degrading treatment, but that they had failed to take any preventive action.
Held: . .
CitedKevin Fox v United Kingdom ECHR 20-Mar-2012
The claimant said that he had been severely assaulted by police officers when being arrested. He had been ‘tasered’ four times at least. The taser had been applied directly to the skin, rater than from a distance, and psychiatrist compared it to . .
CitedBayatyan v Armenia ECHR 7-Jul-2011
(Grand Chamber) The applicant was a practising Jehovah’s Witness and a conscientious objector. He said that his conviction for refusing to serve in the army had violated his right to freedom of thought, conscience and religion. That complaint had . .
CitedTyrer v The United Kingdom ECHR 25-Apr-1978
Three strokes with a birch constituted degrading punishment for a 15-year-old boy, which violated article 3 having regard to the particular circumstances in which it was administered.
Preliminary objection rejected (disappearance of object of . .
CitedDahlab v Switzerland ECHR 15-Feb-2001
(Commission) A primary school teacher had been prohibited from wearing an Islamic headscarf at her school.
Held: The complaint was inadmissible. The court acknowledged the margin of appreciation afforded to the national authorities when . .
CitedCyprus v Turkey ECHR 10-May-2001
Hudoc (Grand Chamber) Missing persons: No violation of Art. 2, Art. 4; Violation of Arts. 2 and 5 with regard to lack of effective investigation; No violation of Art. 5 with regard to alleged detention; Not . .
CitedLautsi v Italy ECHR 18-Mar-2011
(Grand Chamber) The applicants complained that the presence in all state schoolrooms of a crucifix on the wall infringed the principle of secularism. The routine presence in state school classrooms of a crucifix, which was not used for worship, . .
CitedLeela Forderkreis EV And Others v Germany ECHR 6-Nov-2008
. .
CitedSejdic And Finci v Bosnia And Herzegovina ECHR 22-Dec-2009
. .
CitedDogru v France ECHR 4-Dec-2008
The applicant alleged a violation of her right to religious freedom and her right to education guaranteed by Article 9 of the Convention and Article 2 of Protocol No. 1 respectively. As a muslim, she had wanted to wear a headscarf when attending . .
CitedOtto-Preminger-Institut v Austria ECHR 20-Sep-1994
Balance of Religious Tolerance and Freedom
The Institut operated a cinema. It announced a showing of a film ‘Das Liebenconzil’. Proceedings were brought against it, on complaint by the Roman Catholic Church, in which it was accused of ‘disparaging religious doctrine’. The film was seized . .
CitedPalomo Sanchez And Others v Spain ECHR 12-Sep-2011
. .
CitedThlimmenos v Greece ECHR 6-Apr-2000
(Grand Chamber) The application of a rule that a felon could not become a chartered accountant infringed the rights under article 14, taken in conjunction with article 9, of a pacifist convicted of the felony of refusing to perform military service. . .
CitedDH v Czech Repiublic ECHR 7-Feb-2006
The claimants, 18 Roma children complained, saying that they had automatically been placed in schools for children with special needs by virtue of their racial origin. . .
CitedBurden and Burden v The United Kingdom ECHR 12-Dec-2006
Sisters,Together always not Discriminated Against
(Grand Chamber) The claimants were sisters who had lived together all their lives and owned property jointly. They complained that the Inheritance Tax regime treated them worse than it would a married couple, and was discriminatory.
Held: . .
CitedRunkee And White v The United Kingdom ECHR 10-May-2007
The claimant said that the rules which denied him a widow’s pension were sex discrimination.
Held: The normally strict test for justification of sex discrimination in the enjoyment of the Convention rights gives way to the ‘manifestly without . .
CitedCarson and Others v The United Kingdom ECHR 4-Nov-2008
(Grand Chamber) Pensioners who had moved abroad complained that they had been excluded from the index-linked uprating of pensions given to pensioners living in England.
Held: This was not an infringement of their human rights. Differences in . .
CitedKarner v Austria ECHR 24-Jul-2003
A surviving same-sex partner sought a right of succession to a tenancy (of their previously shared flat). Interveners ‘pointed out that a growing number of national courts in European and other democratic societies require equal treatment of . .
CitedEvans v United Kingdom ECHR 7-Mar-2006
The claimant had entered into fertilisation treatment with her boyfriend. They both signed an agreement under which the fertilised sperm were only later to be implanted with the agreement of both. The couple separated, and the potential father . .
CitedSchalk and Kopf v Austria ECHR 22-Nov-2010
The applicants, a same sex couple sought the right to marry.
Held: The application failed. Same-sex couples are in a relevantly similar situation to different-sex couples as regards their need for legal recognition and protection of their . .
Legal SummaryEweida And Others v The United Kingdom ECHR 15-Jan-2013
ECHR Article 9-1
Manifest religion or belief
Disciplinary measures against employees for wearing religious symbols (cross) at work or refusing to perform duties they considered incompatible with their . .

Cited by:
CitedThe Church of Jesus Christ of Latter-Day Saints v United Kingdom ECHR 4-Mar-2014
latterdayECHR0314
The claimant said that it had been wrongfully deprived of relief from business rates for its two temples. It asserted that it was a religion, and that the treatment was discriminatory. The government said that the refusal was on the basis alone that . .
CitedCore Issues Trust v Transport for London Admn 22-Mar-2013
The claimant sought judicial review of the decision made by TfL not to allow an advertisement on behalf of the Trust to appear on the outside of its buses. It was to read: ‘NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!’. The decision was said to . .
CitedBull and Another v Hall and Another SC 27-Nov-2013
The court was asked ‘Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same sex couple?’ The defendants (Mr and Mrs Bull) appealed against a . .
CitedGreater Glasgow Health Board v Doogan and Another SC 17-Dec-2014
Roman Catholic Midwives, working as Labour Ward Co-ordinators had objected to being involved in an administrative capacity in abortions being conducted by the appellants. The Outer House had said they were not entitled to opt out, but the Inner . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Employment, Discrimination

Leading Case

Updated: 02 November 2021; Ref: scu.469784