OMG - long march to freedom

On Tuesday (15 January) judgment will be handed down by the European Court of Human Rights (ECHR) in the four landmark UK religious liberty cases of Eweida, Ladele, McFarlane and Chaplin.

These are important cases that challenge the lack of protection afforded by the domestic courts to employees asked to act against their conscience. The disturbing position of the Government, articulated before the ECHR, is that where an employee is placed in a difficult position by an employer, that employee’s freedom of religion is protected because they are free to resign and move to a different job.

For many, this is an unsophisticated solution to the need to respect differing religions, beliefs and viewpoints in the workplace. The judgment being handed down by the ECHR is an exciting opportunity to take a new direction. It gives the chance for a more mature approach - an approach in keeping with the observation of Justice Sachs in the Constitutional Court of South Africa that “the state should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law”.

While the subtleties of the facts and legal arguments in the four cases have not always found their way into the headlines, it remains an area of law where non-lawyers have an intuitive sense of justice. Perhaps the most obvious question in each of the four cases is - was it really necessary to treat the employees in the way they were treated?

The diminutive Nadia Eweida was suspended without pay by British Airways because she wanted to wear a cross the size of a 5p piece. The airline permitted Sikh female staff members to wear kara bracelets. The softly-spoken Gary McFarlane was recognised as a good counsellor who had helped restore many relationships. He was dismissed for gross misconduct by Relate when he suggested his Christian beliefs made him unsuitable to provide sex therapy to a gay couple. Lilian Ladele was a Christian marriage registrar in Islington. Although there were enough other registrars to conduct civil partnerships, she was threatened with dismissal when she refused to undertake them (her treatment by the employer was described as improper, extraordinary and unreasonable by the Court of Appeal (CoA)). And Shirley Chaplin was a nurse who had worn her confirmation cross on a small chain around her neck for 30 years at work before being told to remove it.

All four were informed by the UK courts that they had no protection under discrimination law - although on the face of it they had suffered indirect discrimination, the employers’ actions were considered to be justified. The view expressed by both the CoA and the Employment Appeal Tribunal was that even if the individuals were not free to manifest their religious beliefs in the workplace, no one was stopping them from holding those beliefs. If the ECHR wishes to restore value to the right of freedom of belief in the workplace, that approach must be rethought.