January 17, 2013
Eweida and Others v. the United Kingdom is probably one of the most awaited freedom of religion judgments of recent times. Twelve third parties intervened in the case. The judgment in fact covers four big cases brought by Christian applicants, complaining that they had suffered religious discrimination at work. This week and next week, the Strasbourg Observers will give the judgment the attention it deserves. In this post, I will stick to the general Article 9 principles of the judgment and to their application to the cases of Ms. Eweida and Ms. Chaplin. Next week, we will focus on McFarlane and Ladele.
The Court’s Article 9 reasoning is praiseworthy for several reasons. First, the Court offers a clear analysis of what counts as “manifestation of religion or belief.” Then, the Court refuses to quickly dismiss the freedom of religion complaints at the interference stage, leaving behind the freedom to resign doctrine. Moreover, in Eweida and Chaplin, the Court shows a strong concern for what is at stake for applicants manifesting their religion at work in the balancing stage. In essence, all this shows that the Court takes freedom of religion more seriously.
Facts and Outcome
Eweida and Chaplin concern restrictions on the wearing of religious symbols at work. Relying on Articles 9 and 14, Nadia Eweida (a practicing Coptic Christian employed at British Airways) and Shirley Chaplin (a practicing Christian working as a geriatrics nurse at a State hospital) complained that their employers prohibited them from visibly wearing Christian crosses around their necks at work.
By five votes to two, the Court found a violation of Article 9 in Eweida. It concluded that the domestic authorities failed to sufficiently protect the applicant’s right to manifest her religion, in breach of the positive obligations under Article 9. In Chaplin, on the other hand, the Court held unanimously that there has been no violation of Article 9.
“Manifestation” of Religious Belief: No Need to Establish a Duty Mandated by a Religion
In setting out the general Article 9 principles, the Court does a great job in unpacking what counts as “manifestation” of religious belief. This issue was far from minor, considering that one of the government’s arguments was: “The first and second applicants’ desire to wear a visible cross, while it may have been inspired or motivated by a sincere religious commitment, was not a recognised religious practice or requirement of Christianity, and did not therefore fall within the scope of Article 9.”
The Court rejects this argument:
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 (paragraph 82).
Though the Court had already applied a similar approach in the past (see e.g., Jakόbski), it now reaffirms the rationale more clearly and explicitly. One advantage of this approach is that it leaves more room for recognizing minorities within religions, whose practices might not be generally recognized or considered as required by the religion in question.
Interference: No Freedom to Resign!
The government’s next (alternative) argument was that, even if the visible wearing of the cross were a manifestation of belief, there was no interference, as the applicants were “free to seek employment elsewhere.” This argument echoes the freedom to resign doctrine developed by the Commission (see e.g., Konttinen v. Finland and Stedman v. the United Kingdom). This doctrine basically meant that, if an individual could escape the restriction – by e.g., resigning from her job and finding another one – there would be no interference with her freedom of religion (for an excellent critique of this doctrine, see Saila’s work here. See also Saila’s post on the issue here). In Konttinen, for example, the Commission regarded the applicant’s freedom to resign as “the ultimate guarantee” of freedom of religion.
In Eweida, the Court departs from this line of reasoning and moves the question where it should have always belonged: the proportionality:
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 (paragraph 83).
So, as judges Bratza and Thór Björgvinsson put it, a restriction on the manifestation of a religion or belief in the workplace “requires to be justified even in a case where the employee voluntarily accepts an employment or role which does not accommodate the practice in question or where there are other means open to the individual to practise or observe his or her religion as, for instance, by resigning from the employment or taking a new position” (paragraph 2(b)).
This approach can only be applauded: it recognizes the importance of religious beliefs and refuses to treat Article 9 rights differently from – and less importantly than – Articles 8, 10 or 11 rights.
Proportionality: Strong Weight to What Is at Stake for the Applicants
In Eweida, the Court ruled that the domestic courts failed to balance the competing interests fairly: on one side of the scales was the applicant’s desire to manifest her religious belief and to be able to communicate that belief to others; on the other side of the balance, was her employer’s wish to project a certain corporate image. For the Court, the company’s wish, while certainly legitimate, was just given too much weight. Several factors led the Court to this conclusion: the cross was “discreet” and could not have detracted from Ms. Eweida’s professional appearance; and employees were allowed to wear other religious symbols (e.g., turbans and hijabs) without evidence of any negative impact of the wearing of such symbols on the employer’s brand or image. The conclusion was therefore that the balance should have tipped in favor of the applicant.
In Chaplin, on the other hand, the Court thought that the reason for asking the applicant to remove her cross, namely the protection of health and safety on a hospital ward, was inherently of much greater importance (the hospital alleged injury and infection risks if patients pulled the necklace or if the cross came into contact with an open wound). The wide margin of appreciation granted in the field also played a role: “hospital managers were better placed to make decisions about clinical safety than a court, particularly an international court which has heard no direct evidence.” The restriction on Ms. Chaplin’s right was therefore proportionate.
An aspect I find remarkable in this part of the reasoning is that the Court acknowledges what is truly at stake for the applicants and weighs that heavily in the balance. The Court says for example in Eweida:
On one side of the scales was Ms Eweida’s desire to manifest her religious belief. As previously noted, this is a fundamental right: because a healthy democratic society needs to tolerate and sustain pluralism and diversity; but also because of the value to an individual who has made religion a central tenet of his or her life to be able to communicate that belief to others (paragraph 94).
The Court thus puts on one side of the balance both the societal and individual value of freedom of religion. The foundational role of freedom of religion in pluralistic and democratic societies has often been embraced in the Court’s case law since Kokkinakis, most notably in cases concerning the collective dimension of freedom of religion. The other aspect – its central role in believers’ identity – has not always been effectively recognized. Eweida and Chaplin are therefore remarkable in this respect: the Court gives the applicants’ interests the importance they deserve in the proportionality. Of course, there might always be strong countervailing interests, as Chaplin shows. But what matters is that the weight of what is stake for applicants is not ignored or trivialized.
The Eweida and Chaplin parts of the judgment do not avoid some of the trickiest issues raised in the cases but openly confront them, all the way up to the last stage of the analysis. Moreover, the interests of both applicants are acknowledged and weighed in the balance. The fact that the applicants are “there” is of great importance, in view of the existing Strasbourg case law concerning the manifestation of religion through religious symbols in state schools and through other forms in the workplace. It has not always been easy for these applicants to make it all the way to the proportionality. The Court itself admits in Eweida that it has not applied a similar restrictive approach at the interference stage “in respect of employment sanctions imposed on individuals as a result of the exercise by them of other rights protected by the Convention.” All in all, therefore, and regardless of the outcome of all the cases decided in the judgment (three out of the four applicants lost the case), the reasoning in Eweida and Chaplin takes the freedom of religion case law to another level.
 The dissenting judges endorse this general principle and attach particular importance to it.
 For a different reading of the balancing conducted by domestic courts, see the dissenting opinion of judges Bratza and Thór Björgvinsson.
 See e.g., Martinez Torron “The (Un)Protection of Individual Religious Identity in the Strasbourg Case Law,” Oxford Journal of Law and Religion (2012), pp. 1-25.