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Wednesday, 16 January 2013

Eweida and others v United Kingdom Part III: some comments

Here is the final part of my article on Strasbourg's four cases this week. 

General observations

What does it mean to have a right to one’s religion? Generally speaking, two things. First, the state should not favour one religion over another. (We in Britain muddle along with an established church, it is true, which may be somewhat intellectually indefensible but falls into the category of Mostly Harmless, and I will leave it aside for now.) Otherwise everyone should be able to worship what they like and where they like within the law, and the law should treat all religions the same, meaning one group should not get state funding or otherwise preferential treatment over others.

Secondly, no-one should be discriminated against because of their religion. In the sphere of criminal law, the state should not impose harsher or lighter sentences because a convicted person happens to belong to a religion. In the employment context, no one should be sacked or disciplined in employment because they believe in X, Y, Z or nothing. It would be outrageous, say, for a bank to state that it will only hire Sikhs and not Hindus or anyone else, and quite properly the latter would have a legal remedy provided by the state via the courts.

We can all agree, I suspect, on that sort of direct discrimination as being plainly wrong. Beyond that agreement is a bit more tricky. My own general approach is set out in Chapter 27 of my book.  Let us now turn to the actual cases, which I have separated into two categories called the symbols cases and the refusal cases respectively.

The symbols cases

Normally it is up to the parties to an employment contract to agree on the terms and then either abide by them or end the contract and pay the other side compensation if the contract is not ended in accordance with its terms. The state’s interest is confined to ensuring that there is no direct discrimination of the sort mentioned above, so that the employer cannot refuse to hire a person because of their gender or race or religion or whatever – and equally so that the employee cannot say (for example) that she will not work in an office with people of a different ethnicity or refuse to serve certain customers for reasons that amount to unlawful discrimination. (The state might also be concerned with health and safety requirements, or a minimum wage, but again those need not concern us here.)

So far as uniform policies or dress codes are concerned, most employers will usually have a policy in place at the start. As long as the existence of the policy is made known to any employee before she signs her contract, and she has a chance to review the terms of the policy and negotiate any exception, it is difficult to see why she should subsequently demand the right to breach the uniform policy in order to display a symbol on religious or cultural or any other ground. The answer is for her to negotiate the agreement from the start. Obviously any sensible employer should not object to inoffensive or unobtrusive items like turbans or crosses, though of course that would not be guaranteed.

This is the approach which Strasbourg has now discarded, having stated (at para [83]):

“Given the importance in a democratic society of freedom of religion, the Court considers that, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate.”

The problem is that weighing an overall balance may be an interesting and challenging task for academic lawyers, but in many cases it will place a considerable burden on both employers and employees to determine whether any claimed interference with a right is proportionate. Sometimes the answer might be obvious, but there will no doubt be instances where well-meaning employers and employees will face uncertainty – as reflected in the differing outcomes in Eweida and Chaplin’s cases. It is not just employers who suffer when there is uncertainty in the law, but also employees, who would like to know where they stand. And if a dispute results in litigation then both will suffer the attendant cost and stress, whoever wins.

In Chaplin’s case the court decided, quite sensibly, that it could not second-guess the hospital authorities on what was safe and what was not. But what made the court think that it could second-guess BA’s corporate image? Something tells me the judges in Strasbourg have probably not spent very much time running a large multinational company or working in its PR department.

One of the reasons BA came unstuck in Eweida’s case was because it had permitted turbans and head scarfs, so there was a point of consistency between religions. But would it really have been better if it had said no turbans or headscarfs? The only difference with the cross was that it was disputed whether Christianity actually requires it. But neither employers nor courts are in any position to judge what a religion entails on the true construction of its scriptures. We might all agree that it would be reasonable for BA employees to be allowed to wear turbans if they wish, but that is an easy case, and as the old saying goes it is hard cases that make bad law (such as someone demanding to wear an offensive symbol or some bizarre non-religious one).

Maybe, therefore, it comes down to not much more than demanding a liberal dress code, or at the very least a consistent one in which either all symbols are banned or none.

Reverting back to classical contract law once again, it might also be said that Ms Eweida’s breach was so small and insignificant that it would not have caused BA any obvious loss (would a brace of passengers suddenly refused to fly because of the shock of seeing a cross?) and would not have justified terminating the contract. I would have thought it a de minimus breach. Even on a classical contract analysis, however, it would be necessary for the parties to judge what is and what is not a serious breach and that would not be so different from the test about whether a uniform policy complies with art 9.

So it seems there is no easy answer – one way or another we have to end up with someone picking and choosing what religious symbols are reasonable to allow and what are not. Given the inherent problems with such an exercise, there is all the more reason for the parties agreeing terms before one begins, and the courts requiring very good reasons indeed for either party wanting to change them afterwards. In other words, just as the Court allows or should allow a wide margin of appreciation for states, so the states in turn should allow citizens a wide margin of appreciation and presume as a starting point at least that parties should be bound by the terms of contracts they voluntarily conclude. This of course is not all one-sided: as well as protecting employers from employees suddenly making claims years after starting work, it also protects employees from having radical changes of policy foistered on them.

The refusal cases

The refusal cases can be answered more easily. In this context the clash has often been framed as between the right of a person to practice their beliefs, and the right of another person not to be discriminated against in the provision of public services.

It is no surprise that the UK courts and Strasbourg favoured the latter. Imagine for a moment that the employees had proclaimed that their religion prohibited them dealing with Jews or Muslims, or otherwise being seen as “condoning” them. Or imagine if a judge suddenly decided that his religion dictated that a woman’s evidence was of less importance than that of a man. They would have been given a short answer. So would a restaurant which said it was run by the former Dutch Reformed Church and wanted to exclude ethnic minorities as inferior people.

Moreover, the same answer would have been given if the employees had wanted to discriminate in the same way on non-religious grounds.

In Mrs Ladele’s case, there was an argument which appealed to the dissenting judges, namely that she had accepted her job before civil partnerships existed, so the employer should not have been entitled to rewrite her contract by forcing her to preside over them.

There is some cogency to this argument. Assume, however, that someone had been a registrar in the Southern States before the civil rights reforms, when mixed-race marriages were disallowed. Then assume they had run the same argument after the reforms. I doubt any sympathy would lie with someone who refused to perform mixed-race ceremonies due to ‘conscience’.


I have to plead that pressures of time and space preclude as full and thorough a consideration as I would have liked to have attempted. Some other interesting interpretations can be found here, here and here. As to be expected they do not all come to the same conclusions or use the same reasoning, showing how difficult this area of law has perhaps inevitably come. I also enjoy reading this column which regularly considers religion and the law issues, though I frequently disagree with the author’s conclusions.

Meanwhile, here are some thoughts on the hypothetical questions I set out on the first post in this series:

- Sarah the recent alcohol-averse convert should realistically have to end her contract and renegotiate a new one. But her employer Jack would be well advised to consider reassigning her to other duties, assuming that it is practical to do so and no other employees object. In other words he should consider the proportionality of Sarah’s request.

- Mohammed who does not want work on Sundays is out of luck if there is a business justification for it.

- Lucy the environmentalist will hang her case on Nicholson v Grainger, my thoughts on which can be found here.

- Ravi the convert will, like Sarah, have to get around the ruling in Mba.

- Bethan with the crucifix will have a strong case as her situation mirrors Eweida more closely than Chaplin.

- Brian the Judas Priest fan hasn’t got much of a case to say his musical tastes are equivalent to a religion. He snarls that “at least Judas Priest is real” and announces his resignation.

- Jennifer the druid has an interesting point in the light of this story.

- Fatima’s case for not serving homosexuals will certainly (and rightly) fail following on Ladele and McFarlane.

Meanwhile, Jack has given up hiring new staff and so gives Peter the bad news. This is the real point of my extended fable: discussions of rights tend to take place based on the assumption that the only consideration is striking the fair balance between competing human rights. In the real world, unless there are clear and workable rules about employment rights (whether the most fair imaginable or not), employers will not hire new staff, meaning fewer jobs will be created and existing workers will have to shoulder a greater workload each time the business wants to expand. We should not underestimate the importance of certainty in the labour market.

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