Eweida: what it all means

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.

Advertisements

About Mrs Markleham

Employment lawyer, discrimination lawyer, mildly peevish old woman.
This entry was posted in Discrimination, Human Rights, Religion and tagged . Bookmark the permalink.

7 Responses to Eweida: what it all means

  1. Pingback: European Court of Human Rights (ECHR): Eweida, Chaplin, Ladele, McFarlane – Judgement Published | eChurch Blog

  2. Stephen says:

    As a non-lawyer, I am pleased to hear that the ECtHR is likely to change the way the UK courts should approach such cases. In my view, Eweida’s case was always clear, there being no legitimate reason to bar her cross wearing. The UK courts, bless ’em, could not see it and the degree of consensus among the legal and HR commentariat that Eweida would lose in Strasbourg was remarkable, although I suspect some of this consensus was wishful thinking

    I suggest the UK courts too easily produce (morally) incorrect decisions because they hold process and precedent to be more important than outcome. From time to time, the UK courts need the external shock provided by Strasbourg to jolt them out of their lazy, complacent dogmatism.

    Gaskin v UK 1989 is another ECtHR judgement that overturned the lazy complacent thinking of establishment judges (Lord Denning, no less). That case too has changed the way UK courts approach related cases. And society is healthier for it.

    Perhaps I speak from extreme ignorance, but I venture to suggest that UK courts should favour justice and fairness,in cases where these two qualities conflict with precedents and procedures .If Strasbourg can, then why can’t our own courts?

  3. Pingback: Eweida victory is a significant extension of religious rights | Flip Chart Fairy Tales

  4. Rick says:

    Does ‘manifesting a religion’ stop at religious symbols and clothing? Might it include other things like time off for prayer breaks? If manifesting my religion is whatever I say it is and employers have to justify why they won’t let me do it, if I were a troublemaker, that would give me huge scope for making all sorts of claims.

    • Manifesting would certainly include time of for prayers and anything else that has a sufficiently strong “nexus” with a religious belief (and provided the belief itself passes the previously set-down tests as to being cogent and worthy of respect in a democratic society etc).

      Of course the business case in relation to disallowing (or at any rate placing reasonable limitations on) prayer breaks is in many cases rather stronger than the “corporate image” arguments that the court found so unpersuasive in Eweida. For example, see Cherfi v G4S an indirect religious discrimination case involving a Muslim security guard asking to be able to leave the site to go to Mosque.

  5. Stephen says:

    @Rick

    I believe the upshot of the Eweida case is that employers must make “reasonable accommodation”, and that is all.

    You will no doubt be relieved that unreasonable demands by troublesome employees are unlikely to be successful in the courts. If there is a business case for not allowing “manifesting a religion” then neither Strasbourg nor the UK courts will find an employer in breach. Is that not what the other three cases, which were lost by the applicants, affirms?

    Eweida stands out, at least the way I see it, because it was an example of an exercise of arbitrary power by an over bearing employer seeking to suppress diversity and personal expression. Employers behaving in these ways is becoming increasingly common as jobs become scarcer and power increasingly shifts to employers.

    Eweida’s desire to manifest produced no discernible or material detriment to her employer. The business case for suppressing Eweida was just about non-existent. In these circumstances, Eweida’s (qualified) right to manifest must trump BA’s ability to exercise arbitrary power. And so I am very glad that Strasbourg thought the same

  6. Pingback: UK Blawg Roundup #13 « Work/Life/Law Work/Life/Law

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s