We’ve been waiting years to get to this point and finally the ruling is almost upon us.
Yesterday the European Court of Human Rights (ECHR) announced that it will be giving its ruling on the four freedom of religion cases involving British Christians on Tues (15th January). All of them have previously lost cases in the British courts and are appealing to the ECHR seeking to have their judgements overturned. It’s taken over four years to get to this point and the rulings could have a major impact on religious freedoms in the UK depending on the outcome. This ruling is set to become an unprecedented event in the historical relationship between religious freedom and the legal system.
All four cases have hit the headlines over the last few years, but in case your memory is a bit rusty, here is a summary of each case taken from the ECHR’s own press release:
The applicants, Nadia Eweida, Shirley Chaplin, Lilian Ladele and Gary McFarlane, are British nationals who were born respectively in 1951, 1955, 1960 and 1961. They live in Twickenham, Exeter, London and Bristol, respectively.
All four applicants are practising Christians who complain that UK law did not sufficiently protect their rights to freedom of religion and freedom from discrimination at work. Ms Eweida, a British Airways employee, and Ms Chaplin, a geriatrics nurse, complain that their employers placed restrictions on their visibly wearing Christian crosses around their necks while at work. Ms Ladele, a Registrar of Births, Deaths and Marriages, and Mr McFarlane, a Relate counsellor, complain about their dismissal for refusing to carry out certain of their duties which they considered would condone homosexuality.
Chaplin and Eweida
Both applicants believe that the visible wearing of a cross is an important part of the manifestation of their faith.
From 1999 Ms Eweida worked part-time as a member of check-in staff for British Airways and was required to wear a uniform. British Airways’ uniform code required women to wear a high necked shirt and a cravat, with no visible jewellery. Any item which a staff member had to wear for religious reasons was to be covered by the uniform or, if this was not possible, approval had to be sought from local management. Until May 2006, Ms Eweida wore a small silver cross on a chain around her neck concealed under her uniform. As a sign of her commitment to her faith, she then decided to wear the cross openly. In September 2006, she was sent home without pay until she decided to comply with the uniform code. In October 2006 she was offered administrative work without the obligation to wear a uniform or have contact with customers, which she refused. She finally returned to work in February 2007 when the company’s policy was changed to permit the display of religious and charity symbols, with the cross and the star of David being given immediate authorisation.
Ms Chaplin worked as a qualified nurse employed by the Royal Devon and Exeter NHS Foundation Trust from April 1989 to July 2010. At the time of the events in question she worked on a geriatrics ward. The hospital had a uniform policy stating that any jewellery worn had to be discreet and banning necklaces in order to reduce risk of injury when handling patients. In June 2007, when new uniforms with V-necks were introduced in the hospital, Ms Chaplin’s manager asked her to remove the crucifix on the chain around her neck. Ms Chaplin sought approval to continue wearing her crucifix which was refused on the ground that it could cause injury if a patient pulled on it. In November 2009 she was moved to a non-nursing temporary position which ceased to exist in July 2010.
Both applicants lodged claims with the Employment Tribunal complaining in particular of discrimination on religious grounds. The Tribunal rejected Ms Eweida’s claim, finding that the visible wearing of a cross was not a requirement of the Christian faith but the applicant’s personal choice and that she had failed to establish that British Airways’ uniform policy had put Christians in general at a disadvantage. Her appeal to the Court of Appeal was also subsequently rejected and the Supreme Court refused her leave to appeal in May 2010. Ms Chaplin’s claim was also rejected in May 2010, the Tribunal holding that the hospital’s position had been based on health and safety rather than religious grounds and that there was no evidence that anyone other than the applicant had been put at particular disadvantage. Given the Court of Appeal’s decision in Ms Eweida’s case, Ms Chaplin was advised that an appeal on points of law had no prospect of success.
Ladele and McFarlane
Both Ms Ladele and Mr McFarlane are Christians, who believe that homosexual relationships are contrary to God’s law and that it is incompatible with their beliefs to do anything to condone homosexuality.
Ms Ladele was employed as a Registrar by the London Borough of Islington from 1992 to 2009. When the Civil Partnership Act came into force in the United Kingdom in December 2005, she was informed by her employer that she would henceforth be required to officiate at civil partnership ceremonies between homosexual couples. When Ms Ladele refused to sign an amended contract, disciplinary proceedings were brought against her in May 2007 which concluded that, if she failed to include civil partnership ceremonies as part of her duties, she would be in breach of Islington Council’s equality and diversity policy and her contract could be terminated.
Mr McFarlane worked for Relate as a Counsellor from May 2003 to March 2008. In 2007 he started a post graduate diploma in psycho sexual therapy which deals in particular with sexual dysfunction and aims to improve a couple’s sexual activity by improving the relationship overall. By the end of 2007 Mr McFarlane’s superiors as well as other therapists had expressed concern that there was conflict between his religious beliefs and his work with same-sex couples. In January 2008 a disciplinary investigation was opened. In March 2008 Mr McFarlane was dismissed summarily for gross misconduct on the ground that he had stated that he would comply with Relate’s Equal Opportunities Policies and provide counselling to same-sex couples without any intention of doing so. A subsequent appeal was rejected.
Both applicants brought proceedings before the Employment Tribunal on grounds of religious discrimination; Mr McFarlane also claimed that he had been unfairly and wrongfully dismissed. Both claims were rejected on appeal on the basis that their employers were not only entitled to require them to carry out their duties but also to refuse to accommodate views which contradicted their fundamental declared principles – and, all the more so, where these principles were required by law, notably under the Equality Act (Sexual Orientation) Regulations 2007. Ultimately, in March 2010 Ms Ladele was refused leave to appeal to the Supreme Court and, in April 2010, Mr McFarlane was refused permission to appeal again to the Employment Appeal Tribunal as there was no realistic prospect of it succeeding, given that Mr McFarlane’s case could not sensibly be distinguished from Ms Ladele’s.
Relying in particular on Articles 9 (freedom of religion) and 14 (prohibition of discrimination), all four applicants complain that domestic law failed to adequately protect their right to manifest their religion.
The outcome is a tough one to call. I’m not too hopeful that any of them will win given their past lack of success, but there are some commentators who are more familiar with the legal system who think one or more might have a chance. Joshua Rozenberg who describes himself as “Britain’s best-known commentator on the law” and was previously the BBC’s legal correspondent wrote an article for the Law Society Gazette addressing the four cases and came out strongly in support of Lillian Ladele’s case. Whatever the outcome, it will be interesting to see how the Government reacts. On one hand David Cameron has pledged to make sure that he will change the law if necessary to ensure religious expression at work is protected. However on the other, government lawyers have been arguing against these appeals at the ECHR in Strasbourg . This confusion can’t continue indefinitely and just maybe things will become a little clearer next week. One thing we can guarantee though is that the press is going to have a field day. Stay tuned.