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Monday, 14 January 2013

Eweida and Others v United Kingdom Part I: introduction

Jack runs a business he set up by himself, selling various luxury goods to the international jet set. He has a very demanding customer base and, because he is selling all over the world, his business has to operate 24/7 to have any chance of competing in what is a tough marketplace. He has a staff of ten who work in shifts around the clock. One Monday morning Jack is sitting at his desk staring at a plethora of staff requests which have arrived from eight of his ten employees.

Sarah has just converted to Islam. She announces that she no longer wishes to handle any alcoholic goods. She would also like a prayer room to be provided at the office, which she plans to use five times a day.

Mohammed, for his part, has recently been persuaded of the validity of Anglican holy orders. He no longer wants to work on Sundays.

Lucy is a committed environmentalist with a passionate belief in the danger of man-made global warming (AGW). She has a long list of transactions and business practices with which she disagrees because they involve unnecessary carbon emissions. She says that in all conscience she cannot support the business acting in this way. She demands that any such tasks should be assigned to someone else, to spare her conscience.

Ravi has just completed the long process of converting to Orthodox Judaism. He asks not to have to work on Saturdays. To make things trickier, one of Jack’s best customers requires a regular delivery on Saturdays and says he does not want to deal with anyone other than Ravi, who has been his regular contact for many years.

Bethan says that she wants to display a crucifix at work, contrary to the company’s dress code. Jack’s international customers include some people based in the Middle East, some in the Southern Bible belt of America, and some practising Hindus in India. He prefers no religious symbols whatever to be on display with customer-facing staff. He notes no symbols are visible in the personal photos on Bethan’s Facebook page.

Brian is a fanatical devotee of the British heavy metal band Judas Priest. He spends every spare minute outside work rehearsing or playing with his tribute band. He and his fiancé attend every performance the band gives in Britain and want to arrange their honeymoon to follow the next world tour.

Jennifer is a druid, and says she wants to have the solstice off every year, along with one or two other events Jack has not heard of before.

Fatima says that her unspecified religion disapproves of gay marriage, and she would prefer not to deal with a client whose conference-centre business specialises in hosting gay marriages in another country where it is already legal.

Meanwhile, Jack’s preferred candidate for a vacancy he has is Peter, a secular teetotaller who wrote a PhD on social problems caused by alcohol. Peter asks if he too can be exempted from handling alcohol as he does not want it on his conscience that he might have contributed to what he sincerely believes is a social ill.

The other two staff members have no issue other than wanting a new coffee machine to be installed in the kitchen. But they have made clear that they do not think it is reasonable for their leisure time to be compromised and their roles to be circumscribed by having to work shifts or undertake tasks which their workmates want to avoid on religious grounds.

Jack’s forwards all the emails to his solicitors, an expensive city firm who tend to instruct a barrister every time they have difficult employment questions, because it is not their area of expertise. He winces at the impending cost and asks them if they can give some straightforward advice so he can avoid these sorts of headaches in the future.

In the not so very distant past, the solicitors’ advice would have been simple: all of the employees would be told that they could either follow the letter of their employment contracts or lump it. To the extent that religion intruded on the equation at all, it would probably have only been in the general sense that Sunday trading was unheard of and so there would not be much call for Jack to open then. Ironically, in those days Britain was probably a more religious country than it is now, at least if attendance numbers at the established church are anything to go by.

In 21st century multicultural, multifaith (if increasingly secular) Britain, however, none of Jack’s headaches seem implausible and not many of them admit of easy answers. So it is with great anticipation that all employers and their legal advisers will have been waiting for the European Court of Human Rights (ECtHR) to give judgment in Eweida and Others v. the United Kingdom (nos. 48420/10, 59842/10, 51671/10 and 36516/10).

The applicants, Nadia Eweida, Shirley Chaplin, Lilian Ladele and Gary McFarlane, were all British nationals. All were practising Christians who complained that UK law did not sufficiently protect their rights to freedom of religion and freedom from discrimination at work.

In the first two cases, Ms Eweida, a British Airways employee, and Ms Chaplin, a geriatrics nurse, complained that their employers placed restrictions on their visibly wearing Christian crosses around their necks while at work.

In the second two cases, Ms Ladele, a Registrar of Births, Deaths and Marriages, and Mr McFarlane, a Relate counsellor, complained about their dismissal for refusing to carry out certain of their duties which they considered would condone homosexuality.

Thus the four cases fall into two categories, within the broad heading of religion and employment.

In the first category, the applicants wished to wear religious symbols whilst at work (the symbols cases). In the second category, the applicants did not wish to carry out duties which might have led to an inference that they condoned homosexuality (the refusal cases).

The two categories share common issues but are by no means identical. The next part of this article will discuss the symbols cases, while the third part will consider the refusal cases and then draw some overall conclusions. For the balance of this introductory part, I will say a few words about three prior questions which do not arise in the ECtHR cases but which will arise in others, including some of the hypothetical examples above concerning the beleaguered Jack.

The questions are: (i) what constitutes a religion; (ii) how to judge whether or not any employee is actually telling the truth about her or his beliefs; and (iii) whether and to what extent different rules apply when the employer is a religious institution.

No-one would argue that mainstream Christianity such as that practised by the four applicants before the ECtHR constitutes a religion. Nor would anyone argue about Islam or Hinduism. But we have seen previous disputes over whether or not Scientology or Druidry are religions.

Then there is the famous example of Jedi worship being considered a religion for the purposes of the census, since the only criterion in that case was the number of professed adherents.

Even if one finds a satisfactory definition of “religion”, one then has to consider secular or philosophical beliefs that might be equally deserving of respect and hence the law’s protection. The Employment Appeal Tribunal placed AGW into this category in the well-known case of Nicholson v Grainger plc [2009] All ER (D) 59 (Nov).

I do not think it is possible to formulate a satisfactory definition either of religion or of non-religious beliefs which deserve equal status at law. Accordingly, with respect to both the symbols cases and the refusal cases, it will be necessary to formulate an answer that takes account of that impossibility.

The second prior question is whether anyone is as devout as they would have anyone else believe. Employers, courts and tribunals are not equipped to judge anyone’s piety. Are they to follow someone around to see if they sneakily buy pork or alcohol or other taboo products? Are the employees to be required to call pastors as expert witnesses? Are employees to be given a test to see how knowledgeable they are about their professed religion’s tenets?

The third prior question is whether and if so to what extent anti-discrimination laws may be set aside for religious employers. If religious schools are allowed, should they also be allowed to discriminate in favour of teachers who share their religion? What of the caretaker, or the maths teacher, neither of whom will be engaged to pass on any religious doctrine to the children?

I imagine the ECtHR will be pleased it has been spared those three questions on this occasion. But we will need to revisit them when coming to the conclusion at the end of Part III of this article. In the meantime Jack’s accountant has advised that the probable cost of the legal advice will have important cashflow implications next month.