24 January 2013
Reflecting on Strasbourg
The European Court of Human Rights ruled on four religious freedom cases last week, finding in favour of one of the Christians but against the other three.
In, arguably, the most important test case, Lillian Ladele, a marriage registrar who worked for Islington Council, lost her claim for discrimination on the basis of conscientious objection and religious belief.
The court's rejected her claim – by a majority of five judges to two. Ladele had made Islington aware of the difficulty she would be caused if she was required to perform civil partnerships when they came into law. Nevertheless, she was designated a civil partnership registrar and then required to undertake civil partnerships by Islington Council in pursuance of their equal opportunities policy (even though accommodating her would not detrimentally impact its civil partnership service). The majority view of the European Court was that Islington Council and the UK courts acted within an allowed margin of appreciation when handling different convention rights, in this case the respect required by competing rights of sexual orientation and religious belief.
However, the court found in favour of Nadia Eweida, ruling that she had her religious freedom unlawfully restricted when she was stopped from wearing a cross at work.
Nurse Shirley Chaplin was also asked not to wear a cross on a necklace, but the court found that her employer was justified in making this request. They also found against Gary McFarlane, in a case against his employer, Relate.
Leading religious liberties lawyer Mark Hill QC has publicly criticised the decision against Ladele. Although five judges rejected her claim, in what Hill described as a "powerful" minority opinion the two dissenting judges asserted that she had in fact suffered discrimination in her treatment from "a combination of backstabbing by her colleagues and the blinkered political correctness of the borough of Islington".
Hill welcomed the judges' "clear steer" away from the UK Government's stance that Christians had the option either to behave in a manner contrary to their deepest held beliefs or find another job: "Employers will no longer be able to say: we are not stopping any employee practising their religion because he or she can simply resign and move to another job."
However, he insisted that whilst employers certainly now had no green light to bully workers who held conscientious beliefs, undoubtedly an effective hierarchy of rights in the UK had been established in which freedom of religion was right at the bottom.
Employment lawyer Mark Jones at Ormerods suggests that the main implications of the cases are:
a) Although three of the four cases did not succeed, the Court's reasoning lowers some of the high hurdles that prevented Christians being protected under the Convention. The Court also distanced themselves from previous 'harsh' decisions.
b) A person's Christian faith does not need to be manifested in a manner that is universal or doctrinally required in order to fall within the protection of the Convention. What is required is a close and direct nexus between their faith and their actions.
c) Having the freedom to resign does not mean that there is no breach of the Convention, although it may still be an important factor.
d) A person's ability to share their faith and/or act in accordance with their conscience in the workplace is more likely to be lawfully restrained where their actions may detrimentally impact others (as opposed to an employer just requiring obedience to a policy).
Mark does not expect the Government to make any changes to UK law following the decisions. All three unsuccessful applicants can seek a referral to the Grand Chamber of the European Court of Human Rights, which has the ability to reach a different decision.