I’ve been trying to work out what the ECtHR’s judgment in Eweida and others v United Kingdom means for UK discrimination law. I won’t spend time dissecting the judgment itself or the facts that have led up to it. This has been done by some very erudite and learned writers elsewhere, including Darren Newman (A Range of Reasonable Responses), Rosalind English (UK Human Rights Blog), and Carl Gardner (Head of Legal), all of which should be required reading. However, here are some of my thoughts on what the decision means for the future of workplace religious rights in the UK.
This is a momentous decision in my view. It will lead to human rights arguments taking a much more prominent role in employment cases on religious freedom. Human rights arguments in this field have hitherto failed because the prevailing orthodoxy at Strasbourg was that, if your employer won’t let you manifest your faith at work you are free to go and manifest it elsewhere, even to the extent of getting another job with a more accommodating employer. As such, arguments based on article 9 of the ECHR have always taken a back seat to the far more useful law of indirect discrimination which is now set out in the Equality Act 2010. Indirect discrimination law says that if your employer’s practices put you and other people of your belief at a disadvantage, the employer must change its ways unless it can justify the practice in question by showing it is a proportionate means of achieving a legitimate aim.
This decision turns the tables, and makes human rights law stronger than indirect discrimination law (as currently interpreted by the courts). Under the Eweida ruling, if an employer prevents an employee manifesting their religious belief, the employer must justify it. You are “manifesting” your belief if there is “a sufficiently close and direct nexus between the act and the underlying belief”. Your actions do not have to be required or mandated by the religion in question. By way of contrast, in indirect discrimination cases the focus is not on the individual so much as the group. The law requires you to show a group disadvantage, In other words, that people sharing your belief are put at a particular disadvantage by the employer’s practices. Ms Eweida fell foul of this requirement in her case against BA. She was unable to show that any other Christians at BA felt disadvantaged by the dress code, and the Court commented that since Christians were not required to wear a cross (even though many of them do) there was no disadvantage on them as a group.
I have previously argued that the way the Court of Appeal assessed group disadvantage in Eweida was wrong. However, the ECtHR’s decision now calls into question the whole concept of group disadvantage as a gateway to the law’s protection. Now, arguably any interference with the way you manifest your own personal beliefs, regardless of whether anyone else feels the same way, triggers article 9 and the employer should be required to show justification.
I think we will have to wait and see what impact this has on UK law. There are really two alternatives. The first is that the government chooses to legislate to change the law and implement the ECtHR’s ruling. I have been wrong in my predictions before, but I’m going to risk it again and say that they won’t (despite the Prime Minister having suggested last summer that he would). Largely because it would go contrary to their current war on “red tape” but also because I think they would prefer to see what the courts do, and then blame the judges if it all goes wrong.
The second alternative is that judges will now attempt to interpret indirect discrimination law in a manner which is compatible with the ECHR’s ruling. As a public authority, courts and tribunals have a duty to do this under section 3 of the Human Rights Act 1998. Case law from the House of Lords gives judges the power to read extra wording into statutes if that is necessary in order to give effect to our international obligations under the ECHR as well as EU law, even if that changes the meaning of the UK statute ( Ghaidan v Godin-Mendoza). Arguably this is what they must now do in respect of the Equality Act. Quite how they will do it is another matter, but I am sure we can expect some creative arguments from counsel in an appropriate case some time soon.
Of course, if your employer is a public authority, they are themselves bound by the Human Rights Act, and you can sue them in the civil courts (but not the employment tribunals) for breach of your article 9 rights without even mentioning indirect discrimination. You couldn’t have done this before Eweida. (Or rather, you could, but you would have lost.)
Another interesting point about Eweida is that the ECHR has given the UK courts a rather heavy-handed steer as to how they ought to be looking at objective justification arguments in relation to dress codes. The Court of Appeal had, they said, put far too much emphasis on BA’s desire to project a corporate image, and far too little weight on the fact that BA allowed Muslims and Sikhs a certain amount of latitude over their dress. Although it was legitimate to want a corporate uniform, the court felt that the stipulation in relation to jewellery was hardly of “crucial importance”. In future, courts and tribunals will find themselves presented with arguments that where a disputed item of clothing or jewellery has religious significance, a ban on grounds of “corporate image” will not be justified if the item is discreet and could not detract from professional appearance or harm the brand (see Eweida, paragraph 94).
If anyone has any other thoughts I’d love to hear them.