BA employee banned from wearing crucifix wins case in ECtHR
The European Court of Human Rights (ECtHR) has ruled that British Airways (BA) employee and practising Coptic Christian Nadia Eweida’s Art 9 rights were breached when she was dismissed for refusing to take off her cross—but three other Christians lost their appeals.
In a landmark decision on religious discrimination, the ECtHR held by a 5-2 majority that the UK courts did not strike a fair balance between Eweida’s “desire to manifest her religious belief” and BA’s “wish to project a certain corporate image”, in Eweida & Ors v UK [2013] ECHR 37.
However, the ECtHR unanimously rejected the cases of Shirley Chaplin, a nurse who refused to remove her crucifix when the hospital authorities warned it was a health and safety risk and offered to let her wear it as a brooch instead, and Gary McFarlane, a psycho-sexual counsellor for Relate who refused to commit himself to working with same-sex couples as he felt this contradicted his religious beliefs. It also rejected by a 5-2 majority the appeal of Lillian Ladele, a registrar who was disciplined for refusing to conduct civil partnership ceremonies.
Rachel Dineley, employment partner at DAC Beachcroft, says: “In addressing difficult and sensitive issues of this kind, employers need to ensure that their response is proportionate, based on compelling considerations (for example, health and safety) and not excessive to resolving the problem in question.”
Makbool Javaid, head of employment law at Simons Muirhead & Burton, says: “Overall, the court has essentially upheld the approach to the way anti-religious discrimination law is applied in the UK courts in the way that it impacts on Convention rights.
“Part of the proportionality requirement is to ensure that the benefits to the business of pursuing a legitimate aim outweigh any discriminatory effect on the individual—the balancing test. In the circumstances of the Eweida and Chaplin cases, the court emphasised that, when protecting Convention rights, a fair balance has to be struck between protecting the individual’s rights and the employer’s aims, which had been achieved in Chaplin’s case, but not in Eweida’s. The Ladele and McFarlane cases confirm that, in striking a balance between rights, you cannot exercise a right in a way which has a negative impact on the rights of others.”
