Eweida v United Kingdom.

• Author: Biddulph, Michelle
• Position: Freedom of religion - European Union

I Introduction

In January 2013, the European Court of Human Rights released its decision in Eweida v United Kingdom. (1) The Court decided on applications in four freedom of religion cases, thus juxtaposing questions of religious clothing and its accommodation with more complex rights conflicts between religious beliefs and provision of services contrary to those beliefs. The Court ended the notion that the 'freedom to resign' resolves the former kind of case, although arguably it may still resolve the latter. Understanding why this is so, the progressive steps the Court has taken, and the questions it has failed to answer, requires some analysis. We commence with the facts, turn to the religious clothing context, then reflect more broadly on conflicts between freedom of religion and other rights, particularly in the context of comparative jurisprudence that the Court failed to examine.

II The Four Applications and the Court's Decision

All four applications concerned the freedom of religion of employees in the workplace. The first applicant, Ms Eweida, was a British Airways employee and practising Coptic Christian. In 2006, Ms Eweida began to wear a cross around her neck at work, violating British Airways' uniform policy. Her employer disciplined her, eventually sending her home without pay until she chose to comply with the uniform policy. British Airways then offered her an administrative position where she would not be required to wear a uniform. She refused this position. British Airways eventually adopted a new policy in February 2007 that allowed employees to wear authorised religious symbols at work. (2) Ms Eweida returned to work and lodged a complaint with the United Kingdom Employment Tribunal, claiming a breach of reg 3 of the domestic Employment Equip/ Regulations 2003. (3) This claim was dismissed by the Employment Tribunal, (4) the Employment Appeal Tribunal, (5) and the Court of Appeal. (6)

The second applicant, Ms Chaplin, was a nurse and practising Christian. She also wore a cross around her neck while working. In 2007, the hospital where she was employed introduced new uniforms for nurses. As a result, Ms Chaplin's display of a cross around her neck became problematic. She was asked to remove it on health and safety grounds, and she refused. (7) Her employer suggested alternative ways in which she could display the cross at work, but these were rejected by Ms Chaplin. (8) She was ultimately moved to a non-nursing position in November of 2009, which ceased to exist in July of 2010. (9) She applied to the Employment Tribunal, alleging discrimination on religious grounds. This application was dismissed, and no application was made to the Employment Appeal Tribunal. (10)

The third applicant, Ms Ladele, was a practising Christian who was employed by the London Borough of Islington as a registrar of births, deaths, and marriages. She began her employment in 2002. In 2005, the Civil Partnership Act 2004 (UK) c 33 came into force. Islington then designated all of its registrars as civil partnership registrars, meaning that they would be required to conduct same sex partnership ceremonies. Ms Ladele refused to conduct these ceremonies based on her religious beliefs. (11) After complaints from other registrars in her office, a formal disciplinary complaint was brought against Ms Ladele on the basis that she failed to comply with Islington's Code of Conduct. (12) She made a complaint to the Employment Tribunal, which found that she had been discriminated against on the basis of her religion. (13) The Employment Appeal Tribunal reversed this decision. (14) The Employment Appeal Tribunal's decision was upheld by the Court of Appeal. (15)

The fourth applicant, Mr McFarlane, was a practising Christian and a relationship counsellor at a private organisation, Relate Avon Limited ('Relate'). This organisation had a policy requiring its counsellors to provide services to both same-sex and opposite-sex couples without discrimination. Mr McFarlane worked at Relate from May 2003 until March 2008, but began to demonstrate unwillingness to conduct this counselling based on his religious beliefs in late 2007. (16) His employer commenced an investigation, and Mr McFarlane ultimately confirmed that he would counsel same-sex couples if asked. (17) After further investigation, his employer concluded that Mr McFarlane would not, in practice, comply with the employer's policies regarding same-sex counselling. Mr McFarlane was dismissed from his position. (18) He applied to the Employment Tribunal, alleging wrongful dismissal. This claim was dismissed. (19)...