Eweida and others v United Kingdom – Implications for employers and the Government's plans on same-sex marriage

Posted by Tim Forer on
The European Court of Human Rights (ECHR) has ruled that Ms Eweida, who was transferred to another role for wearing a visible cross against British Airways' uniform code, had had her right to freedom of religion violated under the European Convention of Human Rights.

In contrast, Ms Chaplin, a nurse who also sought to wear a cross necklace, had not had the same right violated. Although there had been an interference with Ms Chaplin's right to freedom of religion, the health and safety reasons for asking Ms Chaplin to remove her cross were of much greater importance.

The ECHR ruled that the interference had not been disproportionate, but had been necessary in the circumstances.

In the case of Ms Ladele, the registrar who refused to carry out civil partnership ceremonies, the ECHR voted five votes to two that Ms Ladele's rights under the European Convention on Human rights had not been violated. Her employers were pursuing a policy of non-discrimination against service users. The right not to be discriminated against on grounds of sexual orientation is also a Convention right and allowing any difference in treatment requires particularly serious justification.

The ECHR also rejected the case of Mr Macfarlane, who refused to carry out counselling for same-sex couples.

Comment

Tim Forer comments: "Although Ms Ladele and Mr Macfarlane lost their cases, the case confirms that the distinction that has sometimes been drawn between holding a belief and the 'manifestation' of that belief in the workplace is not the reason why the individuals lost their claim of discrimination.

The ECHR judgment reaffirms that individuals do have the right to manifest their religious belief, including in the workplace. However it also affirmed that the State does have a wide discretion to balance the rights of individuals with the rights of employers to limit that manifestation where it conflicts with equal opportunities policies and other protected Convention rights.

"In the case of Ms Eweida, the judgment also demonstrates that preventing an individual from manifesting their belief on the basis that the action (e.g. wearing a cross) is not a mandatory requirement of their belief – as has been one of the approaches in the UK courts – is the wrong approach. The action only needs to be 'intimately linked' to the religion. Nor is it an answer to say that an employee can simply leave their job. Employers must strike a careful balance between the rights of their employees and any policies that tend to conflict with them.

"These judgments come at an interesting time because they raise further questions about the Government's plans to legislate on same-sex marriage. There is a risk that, however Parliament seeks to protect the Church of England from having to perform same-sex marriages, it would be open to a successful challenge in the European Court of Human Rights. The position of other churches could be weaker still because they would not have the protection that Parliament intends to give to the Church of England."

About the Author

Tim is highly experienced in employment law and specialises in advocacy. He also provides practical, commercial advice to organisations.

Tim Forer
Email Tim
023 8085 7432

View Profile