In Eweida and ors v UK the European Court of Human Rights (“EctHR”) has held, by five votes to two, that the United Kingdom failed to ensure Ms Eweida’s rights under Article 9 (freedom of religion) of the European Convention on Human Rights (ECHR) were protected. It held that the Court of Appeal, in rejecting E’s claim of indirect discrimination against British Airways based on its refusal to allow her to wear a visible cross at work, had given too much weight to BA’s uniform policy. However, in the course of its judgement the ECtHR revisited case law suggesting that restrictions on an employee’s manifestation of religious belief at work will not constitute a breach of Article 9 where the employee is free to resign and work elsewhere.
Kate Fretten, Employment Partner, says "The ECtHR noted that the Article 9 protection of freedom of religion encompasses the freedom to manifest religious belief, but an act must be intimately linked to the religion or belief as determined on the facts of each case to count as ‘manifestation’." However, an applicant does not need to establish that an act is a requirement of their particular religion. While cases involving restrictions on employees’ ability to observe religious practices at work have held that the possibility of resigning and changing employment meant that there was no interference with religious freedom, the Court has not applied a similar approach where an employee has experienced sanctions as a result of exercising other ECHR rights. Given the importance of freedom of religion in a democratic society, the ECtHR held that complaints about restrictions on manifesting religious belief in the workplace should be approached not by holding that the possibility of changing job would negate any interference with the right, but by weighing that possibility in the overall balance when considering whether or not the restriction was proportionate.
The dissenting view of the ECtHR president, David Thor Bjorgvinson, and former president, Nicolas Bratza, was that it was not possible to say that the Court of Appeal failed to carry out a fair balance of competing interests, or that their review of the factual circumstances of the case failed to adequately secure Ms Eweida’s Article 9 rights. In their view, the fact that BA subsequently amended the uniform code to allow visible religious symbols to be worn did not begin to demonstrate that it was not of sufficient importance to maintain until the issue was thoroughly examined.
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