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It was reported in the media yesterday that a British Airways employee won a landmark discrimination case against the airline in relation to the wearing of a cross at work. A copy of the European Court of Human Right’s Chamber’s press release concerning the judgement (which is not final) in the case of Eweida and Others v. the United Kingdom (application nos. 48420/10, 59842/10, 51671/10 and 36516/10), is available at this link.

The European Court of Human Rights (“ECHR”) held that the United Kingdom was to pay Ms Eweida €2,000 euro in respect of non-pecuniary damage and €30,000 for costs and expenses.

In this case the ECHR emphasised the importance of freedom of religion, as an essential part of the identity of believers and one of the foundations of pluralistic, democratic societies. Freedom of religion under Article 9 of the Convention included freedom to manifest one’s religious belief, including in the workplace. However, the ECHR noted where an individual’s religious observance impinges on the rights of others, some restrictions can be made and it is up to the authorities of the Contracting States, in the first place, to decide what is necessary.

The Court ruled by five votes to two, that there had been a violation of Article 9 (freedom of religion) in the case of Ms Eweida however voted unanimously that there had been no violation of Article 9 taken alone or in conjunction with Article 14 (prohibition of discrimination), as concerned Ms Chaplin and Mr McFarlane; and by five votes to two, that there had been no violation of Article 14 taken in conjunction with Article 9 as concerned Ms Ladele.

All four applicants were practising Christians. Ms Eweida, a British Airways employee, and Ms Chaplin, a geriatric nurse, complained that their employers placed restrictions on their visibly wearing Christian crosses around their necks while at work. Ms Ladele, a Registrar of Births, Deaths and Marriages, and Mr McFarlane, a Relate counsellor complained about their dismissal for refusing to carry out certain of their duties which they considered would condone homosexuality.

The Court considered whether the right to manifest religion was breached but concluded that it did not consider that the lack of explicit protection in UK law to regulate the wearing of religious clothing and symbols in the workplace as the issues could be and were considered by the domestic courts in the context of discrimination claims brought by the applicants.

In Ms Eweida’s case, the Court held that on one side of the scales was Ms Eweida’s desire to manifest her religious belief. On the other side of the scales was the employer’s wish to project a certain corporate image. The court noted that while the aim was undoubtedly legitimate, the domestic courts accorded it too much weight.

The press release noted that from 1999 Ms Eweida worked part-time as a member of check-in staff for British Airways and was required to wear a uniform. British Airways’ uniform code required women to wear a high-necked shirt and a cravat, with no visible jewellery. Any item which a staff member had to wear for religious reasons was to be covered by the uniform or, if this was not possible, approval had to be sought. Until May 2006, Ms Eweida wore a small silver cross on a chain around her neck concealed under her uniform. As a sign of her commitment to her faith, she then decided to wear the cross openly. In September 2006, she was sent home without pay until she agreed to comply with the uniform code. In October 2006 she was offered administrative work without the obligation to wear a uniform or have contact with customers, which she refused. She finally returned to work in February 2007 when the company’s policy was changed to permit the display of religious and charity symbols, with the cross and the star of David being given immediate authorisation.

The applicant lodged a claim with the Employment Tribunal complaining in particular of discrimination on religious grounds. The Tribunal rejected Ms Eweida’s claim, finding that the visible wearing of a cross was not a requirement of the Christian faith but the applicant’s personal choice and that she had failed to establish that British Airways’ uniform policy had put Christians in general at a disadvantage. Her appeal to the Court of Appeal was also subsequently rejected and the Supreme Court refused her leave to appeal in May 2010. Ms Chaplin’s claim was also rejected in May 2010, the Tribunal holding that the hospital’s position had been based on health and safety grounds and that there was no evidence that anyone other than the applicant had been put at particular disadvantage.

Ms Eweida and the other applicants complained that domestic law had failed to protect their right to manifest their religion.

The Court considered 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. The court noted that Ms Eweida, who worked for a private company could not attribute that interference directly to the State and the Court had to examine whether her right freely to manifest her religion had been sufficiently protected within the domestic legal order. The court noted that although the UK did not have legal provisions specifically regulating the wearing of religious clothing and symbols in the workplace, 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.

Nonetheless as outlined above, the Court concluded in her case that a fair balance had not been struck between, on the one side of the scales, her desire to manifest her religious belief and to be able to communicate that belief to others, and on the other side of the scales, her employer’s wish to project a certain corporate image (no matter how legitimate that aim might be). The court noted other BA employees had previously been authorised to wear items of religious clothing such as turbans and hijabs without any negative impact on BA’s brand or image. Moreover, the fact that the company had amended the uniform code to allow for visible wearing of religious symbolic jewellery 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.

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