Chaplin, Eweida, Ladele and McFarlane: the judgment – Frank Cranmer, Honorary Research Fellow

On 15 January the European Court of Human Rights handed down its judgment in what began as four cases involving four separate claimants who argued, as committed Christians, that the actions of their employers had violated their rights to manifest their religion under the terms of the European Convention of Human Rights: Shirley Chaplin, Nadia Eweida, Lillian Ladele and Gary McFarlane. Nadia Eweida won, the others lost – in short: Lions 3, Christians 1.

A brief history

• In Eweida v British Airways plc [2010] EWCA Civ 80 (12 February 2010), in May 2006 Ms Eweida, a devout Christian employed as a check-in clerk, had decided as a sign of her commitment to her faith to start wearing a visible cross on a chain in contravention of British Airways’ uniform policy – and had been suspended from work. With effect from 1 February 2007, however, BA had changed its policy to allow the display of authorised religious and charity symbols; and certain of them, such as the cross and the Star of David, were given immediate authorisation. Ms Eweida had returned to work in February 2007 with permission to wear the cross in accordance with the new policy; but BA had refused to compensate her for lost earnings during the period of her suspension. The Court of Appeal had held that BA’s refusal to allow her to wear a visible cross with her uniform was not indirect discrimination contrary to the Employment Equality (Religion or Belief) Regulations 2003 (“the 2003 Regulations”) on the grounds that inconvenience to a single individual did not constitute a disadvantage that “puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons” for the purposes of the Regulations.

• In Chaplin v Royal Devon & Exeter Hospital NHS Foundation Trust [2010] ET 1702886/2009 (21 April 2010) Ms Chaplin, a nursing sister and a member of the Free Church of England, had refused on religious grounds to stop wearing a crucifix necklace with her uniform contrary to the Trust’s health and safety policy (based on Department of Health guidance) that “No necklaces will be worn to reduce the risk of injury when handling patients”. As a consequence she was redeployed as an Admissions and Discharge Coordinator, in which post she was not subject to the same restrictions. An Employment Tribunal had held that she had not been subjected to direct or indirect discrimination contrary to the provisions of the 2003 Regulations.

• In London Borough of Islington v Ladele [2009] EWCA Civ 1357 (15 December 2009) the Court of Appeal had decided that the 2003 Regulations did not give Ms Ladele, a registrar, the right on religious grounds to refuse to have civil partnership duties assigned to her. The Court agreed with the Employment Appeal Tribunal that Ms Ladele had neither been directly nor indirectly discriminated against nor harassed, contrary to the 2003 Regulations, by being designated a civil partnership registrar, by being required to officiate at civil partnerships or by any other aspect of her treatment by Islington LBC. The Court had concluded that, except in the limited circumstances provided for in Regulation 14, the prohibition of discrimination in the Equality Act (Sexual Orientation) Regulations 2007 took precedence over any right which a person might otherwise have by virtue of his or her religious belief to practise discrimination on the ground of sexual orientation.

• In McFarlane v Relate Avon Ltd [2009] UKEAT 0106 09 3011 (30 November 2009) the Employment Appeal Tribunal had upheld the decision of an Employment Tribunal that Mr McFarlane, an avowedly-Christian counsellor who regarded homosexual activity as morally wrong and who had been dismissed by Relate for failing to give an unequivocal commitment that he was prepared to give psycho-sexual therapeutic counselling to same-sex couples, had not suffered direct or indirect discrimination under the 2003 Regulations nor been unfairly dismissed.

For further background detail there is a very helpful post by Julie Maher on the Oxford Human Rights Hub blog.

McFarlane, Archbishop Carey and Laws LJ

In the case of Gary McFarlane, his petition for leave to take the matter to the Court of Appeal had been refused by Laws LJ, sitting alone. In McFarlane v Relate Avon Ltd [2010] EWCA Civ B1 (29 April 2010), as well as refusing the petition for leave to appeal, his Lordship addressed in more general terms a witness statement submitted by a former Archbishop of Canterbury, Lord Carey of Clifton, that was extremely critical of the conclusions in Ladele and Eweida. Archbishop Carey contended that the reasoning in those cases was

“… dangerous to the social order and represents clear animus to Christian beliefs. The fact that senior clerics of the Church of England and other faiths feel compelled to intervene directly in judicial decisions and cases is illuminative of a future civil unrest” (para 17).

He was

“… concerned that judges are unaware of these basic issues on the Christian faith; further, it is difficult to see how it is appropriate for other religions to be considered by the judiciary where the practices are further removed from our traditions…” (para 18)

and concluded by calling on the Lord Chief Justice to establish a specialist panel of judges with “a proven sensitivity and understanding of religious issues” designated to hear cases engaging religious rights: a sort of “Religious Division of the High Court”.

Laws LJ rejected the petition on the simple grounds that the facts in McFarlane could not sensibly be distinguished from those on which the Court of Appeal had ruled in Ladele. However, the result of Archbishop Carey’s intervention was that Laws LJ also addressed the general issue of the extent to which religious views should be accommodated or privileged – which, one suspects, he might not otherwise have done. In a ringing rejection of Archbishop Carey’s propositions he declared (at para 23) that to give legal protection or preference to a particular moral position because it was faith-based would be “deeply unprincipled” and concluded:

“The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified. It is irrational, as preferring the subjective over the objective. But it is also divisive, capricious and arbitrary. We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion – any belief system – cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other. If they did, those out in the cold would be less than citizens; and our constitution would be on the way to a theocracy, which is of necessity autocratic. The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law; but the State, if its people are to be free, has the burdensome duty of thinking for itself” (para 24).

Archbishop Carey subsequently intervened in the appeal to the ECtHR.

The complaint

Before the Fourth Section, all four applicants complained that domestic law had failed adequately to protect their right to manifest their religion. Ms Eweida, Ms Chaplin and Mr McFarlane relied on Article 9 (thought, conscience and religion), taken alone and in conjunction with Article 14 (prohibition of discrimination), while Ms Ladele complained only under Article 14 taken in conjunction with Article 9.

The Government’s arguments

The Government:

• relied on existing Strasbourg case-law to the effect that Article 9 does not protect each and every act or form of behaviour motivated or inspired by religion or belief;
• argued that behaviour motivated or inspired by religion or belief but which was not an act of the practice of a religion in a generally recognised form fell outside the protection of Article 9;
• argued that the visible wearing of a cross was not a generally-recognised form of practising the Christian faith – still less a mandatory one – and did not therefore fall within the scope of Article 9; and, similarly,
• contended that Mr McFarlane’s objection to providing psycho-sexual therapy to same-sex couples could not be described as the practice of religion in a generally recognised form (para 58).

In the alternative, the Government argued that even if the visible wearing of the cross or refusing to offer specific services to homosexual couples were manifestations of belief protected by Article 9, there had been no interference with that right in respect of any of the applicants, praying in aid Lord Bingham’s dictum in R (Begum) v Governors of Denbigh High School that, where individuals voluntarily accepted employment that did not accommodate religious practice but where other means were open to them to practise their religion without undue hardship or inconvenience the Strasbourg case-law formed a “coherent and remarkably consistent body of authority” which made clear that in such circumstances there would be no interference with Article 9 (para 59).

As to Ms Ladele, her case was indistinguishable from Pichon and Sajous v France (dec) [2001] ECHR No. 49853/99, in which the Court had held that pharmacists who did not want to supply contraceptives had suffered no interference with their Article 9 rights because they were able to manifest their religious beliefs in many ways outside work (para 59).

In addition, Ms Eweida and Mr McFarlane were employed by private companies and their complaints did not involve any allegation of direct interference by the state. Instead, they claimed that the state had not done all that was required of it under Article 9 to ensure that their private employers permitted them to manifest their religious beliefs at work. The Government contested that assertion: the fact that the applicants were free to resign and seek employment elsewhere or to practise their religion outside work was sufficient to guarantee their Article 9 rights under domestic law. Moreover, any obligation to that effect had been fulfilled during the relevant period by the Employment Equality (Religion or Belief) Regulations 2003 (para 60).

Finally, the measures taken by the employers had been proportionate responses to a legitimate aim in each case:

• British Airways was entitled to have a uniform policy for its staff;
• Devon & Exeter Hospital Trust had imposed its restriction on health and safety grounds in order to reduce the risk of injury when handling patients and it applied equally to non-Christians; and
• though Ms Ladele and Mr McFarlane wished to do nothing directly to endorse same-sex relationships, whether through registering civil partnerships or providing psycho-sexual counselling, the London Borough of Islington and Relate were committed to the provision of services on a non-discriminatory basis and that was a legitimate aim for a local authority or a relationship counselling service to pursue (paras 61–62).

The judgment of the ECtHR

The Court began from the propositions that:

• as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention (para 79);
• religious freedom is primarily a matter of individual thought and conscience but, as further set out in Article 9 § 1, also encompasses the freedom to manifest one’s belief both alone and in private but also to practise in community with others and in public (para 80); and
• the right to freedom of thought, conscience and religion protects views that attain a certain level of cogency, seriousness, cohesion and importance (para 81); but
• every act which is in some way inspired, motivated or influenced by a belief does not necessarily constitute a “manifestation” of that belief (para 82); however
• 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 (para 82).

Applying these principles:

• In the case of Ms Eweida, the refusal by BA between September 2006 and February 2007 to allow her to remain in her post while visibly wearing a cross amounted to an interference with her right to manifest. BA’s actions had been disproportionate and the Court of Appeal had not struck the correct balance in its ruling (paras 91–93).

“while [BA’s] aim was undoubtedly legitimate, the domestic courts accorded it too much weight. Ms Eweida’s cross was discreet and cannot have detracted from her professional appearance. There was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image. Moreover, the fact that the company was able to amend the uniform code to allow for the visible wearing of religious symbolic jewellery demonstrates that the earlier prohibition was not of crucial importance” (para 94).

By a majority of five votes to two (Bratza and David Thór Björgvinsson JJ dissenting) the Court upheld Ms Eweida’s claim.

• In the case of Ms Chaplin, the grounds for the ban were health and safety. Her managers considered there was a risk that a disturbed patient might seize and pull the chain, thereby injuring the patient or Ms Chaplin, or that a swinging cross on a chain might come into contact with an open wound. Moreover, another Christian nurse had been requested to remove a cross and chain; two Sikh nurses had been told they could not wear a kara bangle or kirpan and flowing hijabs were prohibited. Furthermore, Ms Chaplin had been offered the alternative of wearing a cross as a brooch or under a high-necked top under her tunic but she did not consider that this would be sufficient to comply with her religious convictions (para 98). Health and safety on a hospital ward was inherently of a greater magnitude than the uniform policy applied in respect of Ms Eweida (para 99). Ms Chaplin’s claim was therefore dismissed.

• In the case of Ms Ladele, the relevant comparator was a registrar with no religious objection to same-sex unions. The Court agreed with her contention that the local authority’s requirement that all registrars be designated as civil partnership registrars had had a particularly detrimental impact on her because of her religious beliefs (para 104). The consequences of refusal had been serious for Ms Ladele: given the strength of her religious convictions she had considered that she had no choice but to face disciplinary action rather than be designated a civil partnership registrar and, ultimately, she lost her job as a result. Nor when she entered into her contract of employment had she specifically waived her right to manifest her religious belief by objecting to participating in the creation of civil partnerships, since that requirement had been introduced by her employer at a later date. On the other hand, however, the local authority’s policy aimed to secure the rights of others which are also protected under the Convention; and the national authorities – the local authority employer and the domestic courts – had not exceeded the margin of appreciation available to them. By a majority of five to two (De Gaetano and Vučinić JJ dissenting) Ms Ladele’s claim was dismissed.

• In the case of Mr McFarlane, though the loss of his job was a severe sanction with grave consequences, he had voluntarily enrolled on Relate’s postgraduate training programme in psycho-sexual counselling knowing that Relate operated an Equal Opportunities Policy and that filtering of clients on the ground of sexual orientation would not be possible. Relate’s action was intended to secure the implementation of its policy of providing a service without discrimination. The state authorities therefore benefited from a wide margin of appreciation in deciding where to strike the balance between Mr McFarlane’s right to manifest his religious belief and Relate’s interest in securing the rights of others – and, in all the circumstances that margin of appreciation had not been exceeded (para 109). His claim was dismissed unanimously.

Ms Ladele and Mr McFarlane

The Court considered that the most important factor to be taken into account in these two cases was that the policies of the applicants’ employers – to promote equal opportunities and to require employees to act in a way that did not discriminate against others – had the legitimate aim of securing the rights of others, such as same-sex couples, which were also protected under the Convention. In particular, in previous cases the Court had held that differences in treatment based on sexual orientation required particularly serious justification and that same-sex couples were in a relevantly similar situation to opposite-sex couples as regards their need for legal recognition and protection of their relationships.

The Court therefore took the view that the domestic authorities had wide discretion when it came to striking a balance between an employer’s right to secure the rights of others and an applicant’s right to manifest his or her religion and that, in the cases of Ms Ladele and Mr McFarlane the proper balance had been struck.

Ms Eweida and Ms Chaplin: the difference in treatment

The Court accepted that there had been an interference with both women’s right to manifest their religion in that they had been unable to wear their crosses visibly at work.

Ms Eweida worked for a private company – British Airways plc – so she could not attribute the interference with her right to manifest directly to the state. The Court, therefore, had to examine whether or not her right freely to manifest her religion had been sufficiently protected within the domestic legal order. In common with many states party to the ECHR, the UK does not have legal provisions specifically regulating the wearing of religious clothing and symbols in the workplace (para 47). It was clear that the legitimacy of BA’s uniform code and the proportionality of the measures that it had taken had been examined in detail by the domestic courts; and the lack of explicit protection in the UK law in this area did not, in itself, mean that Ms Eweida’s right to manifest her religion had been breached.

In addition, BA had previously given permission for male Sikh employees to wear a dark blue or white turban and to display thekara bangle in summer if wearing a short-sleeved shirt and for female Muslim ground staff to wear the hijab in BA-approved colours – without any apparent negative impact on BA’s brand or image. Moreover, the fact that BA had subsequently amended its uniform code to allow religious symbolic jewellery to be worn visibly showed that the earlier prohibition had not been of crucial importance. The domestic authorities had therefore failed sufficiently to protect Ms Eweida’s right to manifest her religion, in breach of Article 9. The Court did not consider it necessary separately to examine her complaint under Article 14 taken in conjunction with Article 9.

In the case of Ms Chaplin, however, the NHS Trust had asked Ms Chaplin to remove her cross on grounds of health and safety in a hospital ward. That was inherently of much greater importance than the reasons adduced by BA in the case of Ms Eweida. Moreover, hospital managers were better placed than a court to make decisions about clinical safety, particularly an international court which had heard no direct evidence on the matter. The Court therefore concluded unanimously that requiring Ms Chaplin to remove her cross had not been disproportionate and that the interference with her freedom to manifest her religion had been “necessary in a democratic society”. Accordingly, in her case there had been no violation either of Article 9 or of Article 14.

In addition, it should also be noted that though the Court agreed that in Ms Chaplin’s case she had as a matter of fact failed to exhaust domestic remedies, it also took the view that she had not had an effective domestic remedy open to her, given that the Court of Appeal had already decided in Eweida that Article 9 was inapplicable because the restriction on wearing a cross visibly at work did not constitute an interference with the manifestation of religious belief. There was therefore no reason to believe that, had Ms Chaplin sought to appeal further, her case would have been decided any differently fromEweida (paras 54 & 55).

Comment

On Ms Ladele and Mr McFarlane there is little further to be said – though it cannot have helped Mr McFarlane’s case that he had signed up voluntarily for Relate’s postgraduate psycho-sexual counselling course knowing full well that under Relate’s Equal Opportunities Policy he would not be able to refuse clients on the ground of their sexual orientation. Ms Ladele was rather more unlucky: as the Court pointed out, she had been appointed as a registrar in 1992, long before the Civil Partnership Act 2004 was enacted – so from her point of view, her job changed radically in a direction that she could not reasonably have foreseen.

As to Ms Eweida and Ms Chaplin, however, the major distinction was their employer’s grounds for the uniform policy. In BA’s case it was about corporate image – and BA shot through its own goal when it subsequently decided to change its policy to allow employees to wear approved religious symbols – including crosses. The NHS Trust, on the other hand, had founded its policy on principles of health and safety and had followed the Department of Health guidelines on appropriate dress for clinical staff. Quite apart from the possibility of a necklace-wearer being accidentally throttled by a disturbed patient, though it was not mentioned explicitly in the judgment there was the broader issue of infection control and the desire to minimise the risk of MRSA – which is why the Trust had introduced the V-neck uniform top that made Ms Chaplin’s crucifix visible in the first place.

Neil Addison blogged that the dissenting judgement in the case of Ms Ladele raised “… a real issue of principle which [the] dissenting judgement has highlighted and which deserves to be examined again” while the decisions in the cases of Ms Chaplin and Mr McFarlane did not. Moreover,

“[w]ith the case of Chaplin in particular any appeal raises the danger of the appeal decision reversing or undermining the advantages for Christians obtained through the Eweida decision”.

Rosalind English at UKHRB pointed out that De Gaetano and Vučinic JJ took an interesting and challenging position on Ms Ladele’s case: that, on the facts, it

“… was not so much one of freedom of religious belief as one of freedom of conscience – that is, that no-one should be forced to act against one’s conscience or be penalised for refusing to act against one’s conscience”.

There is merit in both these views. But what the judgment in the four conjoined cases is not about, in my view, is some kind of generalised attack on “Christian believers”; nor is it about any kind of supposed “hierarchy of rights” with Article 9 at the bottom. Rather, the majority judgment treats the four applications as individually fact-sensitive.

Finally, on the morning of the judgment the Daily Mail reported that Eric Pickles, Secretary of State for Communities and Local Government, was going to avow in a speech to a couple of London think-tanks, British Future and Policy Exchange, that he would change UK law to support the right of people discreetly to display religious symbols in the workplace:

“We’re committed to the right of Christians and people of all beliefs to follow their faith openly, wear religious symbols and pray in public”.

So, given that the cases of Ms Eweida and Ms Chaplin were decided differently on the facts, precisely which bit of UK employment law does Mr Secretary Pickles now propose to change?

Frank Cranmer

This note was compiled with the help of my co-blogger David Pocklington and appears on the Law and Religion UK blog.