Mark Shulman, Consultant Solicitor at Keystone Law

RELIGIOUS DISCRIMINATION
The right to manifest religious belief is to be found in Article 9 of the European Convention on Human Rights which provides that:

"1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

1. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."

Article 14 of the Convention provides:

"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

In [Eweida & Ors v The United Kingdom]() (Applications nos. 48420/10, 59842/10, 51671/10 and 36516/10), the European Court of Human Rights (ECHR) gave judgment in four conjoined claims. All of the applicants complained that UK domestic law had failed adequately to protect their right to manifest their religion or belief.

(1) The BA worker
Originally, BA's guidance on the wearing of uniforms stated that:

"Any accessory or clothing item that the employee is required to have for mandatory religious reasons should at all times be covered up by the uniform...".

When an employee reported for work wearing an item which did not comply with the uniform code, it was BA's practice to ask the employee to remove the item in question or, if necessary, to return home to change clothes. The time spent by the employee in putting right the uniform would be deducted from his or her wages.

From May 2006 the Applicant decided to start wearing the cross openly, as a sign of her commitment to her faith. When she arrived at work, her manager asked her to remove the cross and chain or conceal them under her cravat. The Applicant initially refused, but eventually agreed to comply with the instruction. After a further incident in August 2006 the Applicant was warned that if she refused she would be sent home unpaid. In September 2006 she refused to conceal or remove the cross and was sent home without pay until such time as she chose to comply with her contractual obligation to follow the uniform code. In October 2006 she was offered administrative work without customer contact, which would not have required her to wear a uniform, but she rejected this offer.

Subsequently, BA reviewed its uniform policy and from February 2007, the display of religious symbols was permitted where authorised. Certain symbols, such as the cross, were given immediate authorisation. The Applicant returned to work in February 2007 with permission to wear the cross in accordance with the new policy. However, British Airways refused to compensate her for the earnings lost during the period when she had chosen not to come to work.

The Applicant lodged a claim with the Employment Tribunal and her case proceeded with various appeals to the Court of Appeal.

(2) The nurse
A nurse on a geriatric ward was a practising Christian and had worn a cross visibly on a chain around her neck since her confirmation in 1971, as an expression of her belief.

The hospital's uniform policy provided that "No necklaces will be worn to reduce the risk of injury when handling patients".

In June 2007 new uniforms were introduced at the hospital which included a V-necked tunic for nurses. In June 2009 the nurse's manager requested her to remove her necklace. However, the nurse insisted that the cross was a religious symbol and sought approval to wear it. This was refused, on the ground that the chain and cross might cause injury if an elderly patient pulled on it.

She applied to the Employment Tribunal in November 2009, complaining of both direct and indirect discrimination on religious grounds.

(3) The Registrar
A registrar for births, deaths and marriages was employed by a local authority.  She was a Christian who held the view that marriage is the union of one man and one woman for life, and sincerely believed that same-sex civil partnerships are contrary to God's law.

Following enactment of the Civil Partnership Act 2004 (when it became legal to have registration of civil partnerships between two people of the same sex) the Registrar was initially permitted to make informal arrangements with colleagues to exchange work so that she did not have to conduct civil partnership ceremonies. However, two colleagues complained that her refusal to carry out such duties was discriminatory and the Registrar was informed that, in the view of the local authority, refusing to conduct civil partnerships could put her in breach of its Code of Conduct and the equality policy. She was requested to confirm in writing that she would henceforth officiate at civil partnership ceremonies. The Registrar refused to agree and requested that the local authority make arrangements to accommodate her beliefs.

A disciplinary hearing took place in August 2007 and the Registrar was asked to sign a new job description requiring her to carry out straightforward signings of the civil partnership register and administrative work in connection with civil partnerships, but with no requirement to conduct ceremonies.

The Registrar made an application to the Employment Tribunal, complaining of direct and indirect discrimination on grounds of religion or belief and harassment.

(4) The counsellor
A counsellor working for Relate (a private counselling service), complained specifically about sanctions taken against him by his employer as a result of concerns about performing services which he considered to condone homosexual union. The counsellor was a practising Christian who held a deep and genuine belief that the Bible states that homosexual activity is sinful and that he should do nothing which directly endorses such activity.

Relate expressed concern that it would not be possible to filter clients, to prevent the counsellor from having to provide psycho-sexual therapy to lesbian, gay or bisexual couples.

In March 2008 Relate dismissed the counsellor summarily for gross misconduct, having concluded that although the Applicant had said he would comply with Relate's policies and provide sexual counselling to same-sex couples, he had no intention of doing so. He could therefore not be trusted to perform his role in compliance with the Equal Opportunities Policies.

The counsellor lodged a claim with the Employment Tribunal, claiming direct and indirect discrimination, unfair dismissal and wrongful dismissal.

The Government's case
In respect of the complaints by the first, second and third Applicants in relation to Article 9, the Government argued that:

(1) behaviour which was motivated or inspired by religion or belief, but which was not an act of practice of a religion in a generally recognised form, fell outside the protection of Article 9. The wish by the first and second applicants to wear a cross was not a generally recognised form of practising the Christian faith. Similarly, the counsellor's objection to providing psycho-sexual therapy to same-sex couples could not be described as the practice of religion in a generally recognised form.

(2) alternatively, even if the visible wearing of the cross, or the refusal to offer specific services to homosexual couples, were a manifestation of belief, there had been no interference with this right. Accordingly, the BA worker and the nurse were permitted by their employers to wear a cross at work provided it was covered up when dealing with customers or patients. It was contended that the Registrar's case was indistinguishable from Pichon and Sajous v. France (dec.), no. 49853/99, ECHR 2001-X, where the Court had found that pharmacists who did not want to supply contraceptives suffered no interference with their Article 9 rights because they were able to manifest their religious beliefs in many ways outside work. Each of the present applicants had been free to seek employment elsewhere. Moreover, the BA worker and the nurse had been offered other posts by their current employers at the same rate of pay which involved no restriction on their freedom visibly to wear a cross.

(3) further, even if there had been interference with the Article 9 right, the measures taken by the employers had been proportionate to a legitimate aim in each case and so:

• BA was entitled to conclude that the wearing of a uniform played an important role in maintaining a professional image and strengthening recognition of the company brand;

• the purpose of the restriction on the nurse was to reduce the risk of injury when handling patients;

• with regard to the registrar and the counsellor, each of their employers was committed to providing their respective services on a non-discriminatory basis and this was plainly a legitimate aim to pursue.

**The Court's analysis
**Religious freedom is primarily a matter of individual thought and conscience. This aspect of the right in Article 9 is absolute and unqualified. However, as set out in Article 9.1, freedom of religion also encompasses the freedom to manifest one's belief, but since the manifestation by one person of their religious belief may have an impact on others, Article 9 of the Convention qualifies this aspect of freedom of religion.

What constitutes a "manifestation" of belief?
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. (Nevertheless, practitioners should note that a belief must be consistent with basic standards of human dignity or integrity (see R (Williamson and Others) v. Secretary of State for Education and Employment .

Interference with religious practices
According to its settled case-law, the States who are parties to the Convention are left a certain "margin of appreciation" in deciding whether and to what extent any interference is necessary. In the case of a challenge, the Court's task is to determine whether the measures taken at national level were justified in principle and proportionate.

Where, as for the BA worker and the counsellor, the acts complained of were carried out by private companies and were not therefore directly attributable to the respondent State, the Court had to consider the issues in terms of the positive obligation on the State authorities to secure their rights under Article 9. A fair balance had to be struck between the competing interests of the individual and of the community as a whole, subject to the margin of appreciation enjoyed by the State.

Article 14 of the Convention
The Court pointed out that Article 14 of the Convention had no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention.

However, case-law establishes that only differences in treatment based on an "identifiable characteristic", or "status", are capable of amounting to discrimination within the meaning of Article 14. "Religion" is specifically mentioned in the text of Article 14 as a prohibited ground of discrimination.

Generally, in order for an issue to arise under Article 14, there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. Such a difference of treatment (or a failure to treat differently persons in different situations), is discriminatory if it has no objective and reasonable justification. However, the contracting States enjoyed a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment.

**Application of the above principles to the facts of the present cases

*The BA worker – no justification
*The Court held that:

* it was not disputed that the BA worker's insistence on wearing a cross visibly at work was a manifestation of her religious belief and as such attracted the protection of Article 9; * the refusal by British Airways between September 2006 and February 2007 to allow the Applicant to remain in her post while visibly wearing a cross amounted to an interference with her right to manifest her religion; * the national judges at each level had agreed that the aim of the uniform code was legitimate, namely to communicate a certain image of the company and to promote recognition of its brand and staff; * the interference with the worker's Article 9 right was disproportionate. On one side of the scales was the worker'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 considered that the domestic courts had accorded too much weight to BA's aims. The worker's cross was discreet and cannot have detracted from her professional appearance. There was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on BA's brand or image. Moreover, the fact that the company amended the uniform code to allow for the visible wearing of religious jewellery demonstrates that the earlier prohibition was not of crucial importance.

*The nurse – health and safety
*As with the BA worker, the Court considered that the nurse's determination to wear the cross and chain at work was a manifestation of her religious belief and that the refusal by the health authority to allow her to remain in the nursing post while wearing the cross was an interference with her freedom to manifest her religion.

The Court had to determine whether the interference was necessary. In the nurse's case, there did not appear to be any dispute that the reason for the restriction on jewellery was to protect the health and safety of nurses and patients.

The Court considered that the reason for asking the nurse to remove the cross, namely the protection of health and safety on a hospital ward, was inherently of a greater magnitude than that which applied in respect of the BA worker. This was a field where the domestic authorities must be allowed a wide margin of appreciation. The hospital managers were better placed to make decisions about clinical safety than a court.

The Court was therefore unable to conclude that the measures of which the nurse complained were disproportionate. It followed that the interference with her freedom to manifest her religion was necessary and that there was no violation of Article 9.

The Registrar – no indirect discrimination
The Court decided that the relevant comparator in this case is a registrar with no religious objection to same-sex unions. It agreed with the Registrar's contention that the local authority's requirement that all registrars of births, marriages and deaths be designated also as civil partnership registrars had a particularly detrimental impact on her because of her religious beliefs. In order to determine whether the local authority's decision not to make an exception for the Applicant and others in her situation amounted to indirect discrimination in breach of Article 14, the Court had to consider whether the policy pursued a legitimate aim and was proportionate.

The Court of Appeal had held in this case that the aim pursued by the local authority was to provide a service which was not merely effective in terms of practicality and efficiency, but also one which complied with the overarching policy of being "an employer and a public authority wholly committed to the promotion of equal opportunities…". Against this background, the aim pursued by the local authority was legitimate.

Were the means used to pursue this legitimate aim proportionate? The Court took into account that the consequences for the Applicant were serious given the strength of her religious conviction and ultimately, she lost her job. On the other hand, the local authority's policy aimed to secure the rights of others which are also protected under the Convention.

The Court generally allowed the national authorities a wide margin of appreciation when it came to striking a balance between competing Convention rights. The Court decided that the local authority employer which brought the disciplinary proceedings had not exceeded the margin of appreciation available to it. Therefore, it could not be said that there had been a violation of Article 14 taken in conjunction with Article 9.

The counsellor – a fair balance
The Court accepted that the counsellor's refusal to undertake to counsel homosexual couples was a manifestation of his religion and belief.

Was a fair balance struck between the competing interests at stake? Yes, said the ECHR. On the one hand, the loss of his job was a severe sanction with grave consequences for the counsellor. On the other hand, the Applicant voluntarily enrolled on Relate's post-graduate training programme in psycho-sexual counselling, knowing that Relate operated an Equal Opportunities Policy and that filtering of clients on the ground of sexual orientation would not be possible.

The most important factor to be taken into account was that the employer's action was intended to secure the implementation of its policy of providing a service without discrimination. The State authorities therefore benefitted from a wide margin of appreciation in deciding where to strike the balance between the counsellor's right to manifest his religious belief and the employer's interest in securing the rights of others. The margin of appreciation had not been exceeded in the present case.

Comment
These cases show that whilst employees may be able to demonstrate a manifestation of their religion or belief with relative ease, provided that an employer can show a legitimate aim is being met in restricting the manifestation, and is doing so in a proportionate way, the status quo is likely to remain in favour of the employer on this issue. In the present cases, it was only health and safety issues that trumped the right to manifest religious belief.

In the light of the Court's rulings, how does the case affect domestic indirect discrimination cases? This remains to be seen and working out the precise inter-relationship between Article 14 and the Equality Act 2010 might be difficult. But given what the Court has said about Article 14 (and the fact that religion or belief are protected characteristics under the Equality Act 2010), a Convention right is engaged and so the scope of Article 14 will in future have to be taken into account.

Mark Shulman is a Consultant Solicitor with Keystone Law and an accredited workplace and employment mediator.