CEDH · CASELAW;CLIN;ENG — 15 janvier 2013

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Judgment 15.1.2013 [Section IV] Article 9 Article 9-1 Manifest religion or belief Disciplinary measures against employees for wearing religious symbols (cross) at work or refusing to perform duties they considered incompatible with their religious beliefs: violation; no violations   Article 14 Discrimination Disciplinary measures against employees for wearing religious symbols (cross) at work or refusing to perform duties they considered incompatible with their religious beliefs: violation; no violations   Facts – All four applicants were practising Christians who complained that domestic law had failed adequately to protect their right to manifest their religious beliefs. The first applicant, Ms   Eweida, a British Airways employee, and the second applicant, Ms   Chaplin, a geriatrics nurse, complained that their employers had placed restrictions on their visibly wearing Christian crosses around their necks while at work. The third applicant, Ms   Ladele, a Registrar of Births, Deaths and Marriages; and the fourth applicant, Mr   McFarlane, a counsellor with a confidential sex therapy and relationship counselling service, complained that they had been dismissed for refusing to carry out certain of their duties which they considered would condone homosexuality, a practice they felt was incompatible with their religious beliefs. Law – Article 9 alone and/or in conjunction with Article   14: There is case-law of the Court and Commission which indicates that, if a person is able to take steps to circumvent a limitation placed on his or her freedom to manifest religion or belief, there is no interference with the right under Article 9 §   1 and the limitation does not therefore require to be justified under Article 9 §   2. However, given the importance in a democratic society of freedom of religion, the Court considered that where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate. Where, as in the case of the first and fourth applicants, the acts complained of were carried out by private companies and were not therefore directly attributable to the respondent State, the Court must consider the issues in terms of the positive obligation on the State authorities to secure the rights under Article   9 to those within their jurisdiction. As regards the applicable principles under Article   14 of the Convention, while generally for an issue to arise there must be a difference in the treatment of persons in analogous, or relevantly similar, situations, the right not to be discriminated against is also violated when States, without objective and reasonable justification, fail to treat differently persons whose situations are significantly different. Such actions are discriminatory if they have no objective and reasonable justification; in other words, if they do not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. (a)     The first applicant – The Court was satisfied that the first applicant’s insistence on wearing a cross visible at work was a manifestation of her religious belief, and that the refusal by British Airways between September 2006 and February 2007 to allow her to remain in her post while visibly wearing a cross amounted to interference with her right to manifest her religion. Since the interference was not directly attributable to the State, the Court examined whether the State had complied with the positive obligation under Article   9. The Court did not consider that the lack of explicit protection in UK law to regulate the wearing of religious clothing and symbols in the workplace in itself meant that the right to manifest religion was breached, since the issues could be and were considered by the domestic courts in the context of discrimination claims brought by the applicants. The aim of the British Airways uniform code, namely to communicate a certain image of the company and to promote recognition of its brand and staff, was legitimate. However, the domestic courts had accorded this aim too much weight. The first applicant’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 British Airways’ brand or image. Moreover, the fact that the company was later able to amend the uniform code to allow for the visible wearing of religious symbolic jewellery demonstrated that the earlier prohibition had not been of crucial importance. Therefore, as there was no evidence of any real encroachment on the interests of others, the domestic authorities had failed sufficiently to protect the first applicant’s right to manifest her religion, in breach of the positive obligation under Article   9. No separate examination of her complaint under Article   14 in conjunction with Article   9 was necessary. Conclusion : violation in respect of the first applicant (five votes to two). (b)     The second applicant – The Court was satisfied that the second applicant’s determination to wear a cross 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 restriction in question had a legitimate aim, which was to protect the health and safety of nurses and patients. The evidence was that the second applicant’s managers considered there was a risk that a disturbed patient might seize and pull the chain with the risk of injury, or that the cross might swing forward, and could, for example, come into contact with an open wound. The reason for the restriction in this situation was therefore inherently of greater magnitude than in the case of the first applicant. There was also evidence that another Christian nurse had been requested to remove a cross and chain; two Sikh nurses had been told they could not wear a bangle or kirpan; and that flowing hijabs were prohibited. The second applicant had been offered the possibility of wearing a cross in the form of a brooch attached to her uniform, or tucked under a high-necked top worn under her tunic, but she had not considered this would be sufficient to comply with her religious convictions. This was an area where the domestic authorities had to be allowed a wide margin of appreciation. The hospital managers were better placed to make decisions about clinical safety than a court, particularly an international court which had heard no direct evidence. It followed that the Court was unable to conclude that the measures in question were disproportionate, and that the interference with the second applicant’s freedom to manifest her religion had been necessary in a democratic society. There had therefore been no violation of Article   9 alone or in conjunction with Article   14. Conclusion : no violation in respect of the second applicant (unanimously). (c)     The third applicant – It was clear that the third applicant’s objection to participating in the creation of same-sex civil partnerships was directly motivated by her religious beliefs. The events in question therefore fell within the ambit of Article   9 and Article   14 was applicable. The relevant comparator in this case was a registrar with no religious objection to same-sex unions. The Court accepted that the local authority’s requirement that all registrars of births, marriages and deaths be designated also as civil-partnership registrars had had a particularly detrimental impact on her because of her religious beliefs. The requirement pursued the legitimate aim of protecting equal opportunities for those of different sexual orientation. In considering the proportionality of the measures, it was notable that the consequences for the third applicant were serious: she considered that she had no choice but to face disciplinary action rather than be designated a civil-partnership registrar and, ultimately, she lost her job. Furthermore, it could not be said that when she entered into her contract of employment she had specifically waived her right to manifest her religious belief by objecting to participating in the creation of civil partnerships, since this requirement had been introduced by her employer at a later date. On the other hand, however, the local authority’s policy aimed to secure the rights of others which were also protected under the Convention and the Court generally allowed the national authorities a wide margin of appreciation when it came to striking a balance between competing Convention rights. In all the circumstances, the Court did not consider that either the local-authority employer which had brought the disciplinary proceedings or the domestic courts which had rejected the third applicant’s discrimination claim, had exceeded the margin of appreciation available to them. There had therefore been no violation of Article   14 in conjunction with Article   9. Conclusion : no violation in respect of the third applicant (five votes to two). (d)     The fourth applicant – While employed by a private company with a policy of requiring employees to provide services equally to heterosexual and homosexual couples, the fourth applicant had refused to commit himself to providing psycho-sexual counselling to same-sex couples. As a result, disciplinary proceedings had been brought against him. The Court accepted that the fourth applicant’s objection was directly motivated by his orthodox Christian beliefs about marriage and sexual relationships, and held that his refusal to undertake to counsel homosexual couples constituted a manifestation of his religion and belief. The State therefore had a positive obligation under Article   9 to secure his rights. In deciding whether the positive obligation was met by achieving an appropriate balance between the competing interests, the Court took into account that the loss of his job was a severe sanction with grave consequences for the fourth applicant. On the other hand, he had voluntarily enrolled on his employer’s post-graduate training programme in psycho-sexual counselling, knowing that his employer operated an equal opportunities policy and that filtering of clients on the ground of sexual orientation would not be possible. While an individual’s decision to enter into a contract of employment and to undertake responsibilities which he knew would have an impact on his freedom to manifest his religious belief was not determinative of the question whether or not there has been an interference with Article   9 rights, this was a matter to be weighed in the balance when assessing whether a fair balance was struck. However, 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 had therefore benefited from a wide margin of appreciation in deciding where to strike the balance between the fourth applicant’s right to manifest his religious belief and the employer’s interest in securing the rights of others. In all the circumstances, the Court did not consider that that margin had been exceeded. There had therefore been no violation of Article   9 alone or in conjunction with Article   14. Conclusion : no violation in respect of the fourth applicant (unanimously). Article 41: EUR 2,000 to the first applicant in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes