Actually, Eweida has a point but she’ll still lose today

Nadia Eweida has a point.

I’m not saying I agree with the way she has handled all this, nor with the “persecution of Christians” narrative with which she (and the religious groups that have funded her case) is now associated. But the EAT and the Court of Appeal made a hash job of deciding her case, and here’s why.

I have explained why in detail in my post, Making sense of the EHRC’s stance on religion. But essentially, rather than looking at whether the requirement not to wear visible jewellery had an impact on people sharing Ms Eweida’s belief, the court looked at the impact on Christians as a whole – most of whom, it appeared from the evidence, would not have minded BA’s dress code at all. The further problem was that Eweida’s legal team had failed to come up with any evidence of Christians at BA objecting to it at all. My point is that it is up to the claimant to define what her belief is. In her case it was a belief that she should wear a cross visibly as a message to other people. Was that belief “religious”? Certainly. Would people sharing that belief find themselves disadvantaged by BA’s policy? Definitely. The question would then have turned to justification – i.e. was BA’s dress code proportionate?

It may be that the legal team got so caught up in the persecution of Christians narrative that they failed to realise that they should have been focusing less on Christianity as a whole (which encompasses a whole range of different and often differing beliefs) and more on the specific belief that Ms Eweida herself was trying to manifest.

Be that as it may the Court of Appeal’s decision created bad law. The more so as it was followed in the Chaplin decision (which also features before the EHRC today). Today’s judgment, when it comes out, may prompt a re-examining of the case law. What I think it should not do, is result in a need to re-legislate.

Why not?

I think she’ll lose. That’s my prediction, for several reasons.

First, she has to get past the existing Strasbourg case law. In particular,  Stedman v United Kingdom [1997] 23 EHRR CD 168, in which the applicant had been dismissed for refusing to work on Sundays, that day being a day of rest under her religion. The European Commission on Human Rights decided that Article 9 was not engaged. It observed that, if an employee finds that their work conflicts with their religious beliefs, they are free to hand in their notice.

Stedman was followed in numerous cases in the ECtHR and in our domestic courts. The court may well re-examine it and decide it does not adequately protect religious freedom at all.  This would be a major departure from existing Human Rights thinking. This would be the sort of thing that one might genuinely use the word “landmark” to describe, without fear of hyperbole.

But would that make a difference to the existing case?

Assuming Ms Eweida manages to persuade the court her Article 9 rights have been interfered with, the UK government would have to show that the interference met the proportionality test. Not entirely coincidentally, our indirect discrimination law (which is based on the EU Equal Treatment Framework Directive) contains a proportionality test. Prima facie indirect discrimination is unlawful unless it is justified as being a proportionate means of achieving a legitimate aim. No one has yet, to my knowledge, managed to argue successfully that the way the EU/UK proportionality test works is out of step with the Convention. To my mind they are virtually the same for the most part.

In any case, I don’t believe the ECtHR’s role is to decide whether the dress code in this case was  proportionate, in the same way that a UK tribunal would do. The Convention allows states a “margin of appreciation” in implementing Convention rights. In other words, a certain latitude. To my mind, the proportionality test in our Equality Act 2010 (and the Religion and Belief Regulations that preceded it) are for the most part well within the margin of appreciation.  To say otherwise would be to call into question the EU Equal Treatment Directive as well. Provided the legal test is adequate, domestic courts and tribunals should be trusted to apply that test on the facts before them, without interference from the ECtHR (which does not decide questions of fact or even hear any evidence).

What is really up for grabs here is whether the initial hurdle is too high – in other words whether it is ok for our law to require claimants to show that they form part of a disadvantaged group (whether in the sense I have advocated, or the much harder test the Court of Appeal has set) or whether they ought to be able to jump straight to the proportionality part of the argument if they can show that they themselves have suffered a disadvantage based on their own personal belief. This is one of the things the EHRC has explored in their submissions.

Watch this space.


About Mrs Markleham

Employment lawyer, discrimination lawyer, mildly peevish old woman.
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8 Responses to Actually, Eweida has a point but she’ll still lose today

  1. Stephen says:

    Suppose an employer laid down a dress code that required all employees to display a cross. If an employee objected and was dismissed as a consequence would they have suffered discrimination?

    • Difficult to answer such a general question in this forum. Essentially, it would depend on why the employer had laid down the requirement, whether the requirement could reasonably be said to put the employee to any disadvantage, and why the employee was objecting to it (specifically whether their objection was related to a religious or philosophical belief).

  2. Blimey, she won. Suppose I better shut up now and read the judgment.

  3. No employer in their right mind would ask a Jewish man to remove his kippah or a Muslim woman to remove her veil. Why therefore should a Christian not be permitted to wear a crucifix? I haven’t read the judgment yet to understand the reasoning for the decision but I concur with it entirely.

    • There may be good reasons for many of those things. In Chaplin v Royal Devon and Exeter NHS Trust, a Christian nurse was asked to remove her necklace (which had a crucifix on it) as necklaces presented a safety risk when working with disturbed patients. She was offered a compromise such as wearing a crucifix on her badge, but would not accept this. In Azmi v Kirklees Borough Council, a school asked a Muslim teaching assistant to remove her veil when teaching children as it made communication easier. In Dhinsa v Serco a Sikh prison officer was forbidden from wearing a kirpan under his clothes as it created a security risk. In all these cases the tribunals found the employer’s actions to be justified. Cases must be assessed on their facts, and a blanket rule that employees must always be permitted to wear whatever articles of faith they choose is simply not workable.

  4. Stephen says:

    Yeah, well clearly in the Eweida case there was no reason to ban her other than illiberal prejudice.

    • I don’t think BA were prejudiced against her. They just took the view – wrongly it now appears – that their desire to maintain a uniform “corporate image” for several thousand employees was more important than one employee’s personal decision to wear a faith symbol. Lessons appear to have been learned in the process.

  5. Pingback: Eweida: what it all means | Mrs Markleham

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