Victory for Dingemans and Aughton Ainsworth in ECHR religion case
15 January 2013 | By Joanne Harris
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The European Court of Human Rights (ECHR) has delivered a mixed verdict in four landmark religious liberty cases this morning, finding that British Airways (BA) discriminated against a cross-wearing employee but dismissing the other three appeals.
3 Hare Court’s James Dingemans QC was instructed by Tom Ellis of Manchester firm Aughton Ainsworth for BA check-in worker Nadia Eweida, who took her case to the ECHR after the Employment Tribunal and Court of Appeal (22 February 2010) rejected her claim of discrimination by BA. Eweida claimed that the airline had discriminated against her because it said she could not wear a cross as part of her uniform.
The ECHR heard that Eweida fell into a dispute with BA when she began wearing a cross openly in 2006, and spent six months at home without pay until BA changed its policy to allow the display of religious and charity symbols, including the cross and the star of David.
Eweida’s case was conjoined with that of three other claimants. Shirley Chaplin, a geriatric nurse, was also banned from wearing a cross with her employer, the Royal Devon and Exeter NHS Foundation Trust, saying it breached health and safety. Fellow Christians Lilian Ladele and Gary McFarlane were both dismissed from their jobs at Islington Council and charity Relate after they expressed reluctance to work with same-sex couples.
Ladele said she would not officiate at civil partnership ceremonies, while McFarlane declined to confirm that he would provide counselling to same-sex couples.
All three lost their religious discrimination claims in the Employment Tribunal.
The four claimants said that domestic law had failed adequately to protect their right to manifest their religion. Eweida, Chaplin and McFarlane relied both on Article 9 of the European Convention of Human Rights, on freedom of religion as well as Article 14, which prohibits discrimination, while Ladele relied only on Article 14.
In Eweida’s case the ECHR found “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”.
The court found domestic authorities in the UK had failed to protect Eweida’s right to manifest her religion, in contravention of Article 9. It awarded her €2,000 (£1,661) in damages and also ordered the UK Government to pay costs of €30,000.
Ellis said: “Miss Eweida is very happy with the European court’s ruling. It has taken over six years to finally hear the news that BA had discriminated against her and the UK authorities had failed sufficiently to protect her right to manifest her religion by wearing a small cross visibly at work.”
However the ECHR dismissed the other three claims. In Chaplin’s case it said the hospital’s request for her to remove her cross was not disproportionate and that hospital managers were better placed to make clinical safety decisions than a court.
In Ladele and McFarlane’s cases, the court said their employers had a legitimate right to secure the rights of others, such as same-sex couples, which were also protected under the human rights convention, and that the Employment Tribunal had struck the right balance in making its decisions on their claims.
The decisions were not unanimous. Judges Nicolas Bratza and ECHR president David Thór Björgvinsson said they would not have upheld Eweida’s claims, while Nebojša Vučinić and Vincent de Gaetano said they thought there had been a violation of the human rights convention in Ladele’s case due to the “cogency, seriousness, cohesion and importance of her conscientious objection” to performing a civil partnership for a same-sex couple.
The full legal line-up:
For the UK Government - Blackstone Chambers’ James Eadie QC and Matrix Chambers’ Dan Squires, instructed by Ahila Sornarajah
For Eweida - 3 Hare Court’s James Dingemans QC and 11 KBW’s Sarah Moore, instructed by Aughton Ainsworth partner Tom Ellis
For Ladele - Blackstone Chambers’ Dinah Rose QC, Ben Jaffey and Chris McCrudden, instructed by Ormerods partner Mark Jones
For Chaplin and McFarlane - Paul Diamond (sole practising barrister), instructed by the Christian Legal Centre
For intervenors the National Secular Society - Blackstone Chambers’ Lord Lester QC of Herne Hill, University College London lecturer Ronan McCrea and Brick Court Chambers’ Max Schaefer, instructed by DAC Beachcroft partner Stephen Hocking
Reaction from the legal profession:
Rachel Dineley, head of the employment and pension group’s equality and discrimination unit at DAC Beachcroft:
“The outcome of these cases will be welcomed by employers. The court has emphasised that our national tribunals and courts have broad discretion in ensuring that a fair balance is struck between the rights of individuals on the one hand and the obligations of employers on the other, who, both as employers and as providers of goods, facilities and services, must not discriminate against individuals or groups identified by reference to any protected characteristic. In addressing difficult and sensitive issues of this kind, employers need to ensure that their response is proportionate, based on compelling considerations (for example, health and safety) and not excessive to resolving the problem in question.”
Yvonne Gallagher, head of employment, Lawrence Graham:
“This decision now makes it clear that no part of equality rights provisions can trump the others. This should be regarded generally as a hands off approach by the ECHR. The ECHR can perhaps be seen to have taken on board recent criticism from the UK and others that it was exceeding its remit and interfering in matters which were properly the preserve of the individual signatory states.
“Ultimately this remains a balancing exercise and it is clear that no one part of the equality rights provisions can trump the others. The decision provides little in the way of certainty, but provided an employer can demonstrate a genuine attempt to balance conflicting interests fairly in the pursuit of equality in service provision, it will be difficult for employees to succeed in any claim.”
Justin Govier, head of employment, IBB Solicitors:
“It is clear that the European Court considers that our own courts have been too restricted in their views as to the manner in which an individual is entitled to express their religious beliefs. However, the individual’s right is not absolute and an employer is able to justify restrictions on this right. Justification will require a careful balancing act between the individual’s right and other wider considerations.”
Howard Lewis-Nunn, partner, Ashfords:
“While the decision in Ms Eweida’s case is grabbing the headlines, the decisions on the other cases are of far greater significance. This decision recognised that Christians have the right to be treated equally in the expression of their faith, but others have the right to equal treatment when they are accessing services. The ECHR has upheld the principle of equality of treatment over religious beliefs. To do otherwise would open the door to any number of ‘conscience’ challenges to the principle of equality.”