Wear What You Like

Following today’s European Court of Human Rights judgment in Eweida and Others v the United Kingdom, David Renton analyses the how the fine balance between religious freedom and avoiding discrimination can be struck.

Employment law is often enough in the news; but it remains unusual to see government ministers side unambiguously with an appellant to the European Court of Human Rights, as David Cameron did, in the build up to today’s decision concerning Nadaia Eweida and three other Christians (Lilian Ladele, Shirley Chaplin, and Gary McFarlane) promising that if Nadaia Eweid and Shirley Chaplin lost he would change UK law to protect them.

There were two kinds of case before the Court. Ms Ladele and Mr McFarlane were employees of a local council and a charity, both providing services connected to relationships (Ladele registered marriages and civil partnership and McFarlane gave relationship counselling). Neither was willing to do anything which they said would be tantamount to condoning homosexual sex, which they believed was sinful. In practice, they sought personal opt-outs from their employer’s non-discrimination policies and were ultimately dismissed. The employers’ actions, the Court held, were in defence of equality and were lawful.

These were good decisions consistent with UK law and best understood as a rejection of the “discriminator’s defence” (i.e. if I actually treat people unequally, because of my beliefs, I should not be punished because my belief is a protected characteristic).

In 2003, when equality law in Britain was introduced, many people questioned whether it was possible to protect the rights of both LGBT and religious people. I was then working as an equality official of a union; many of its LGBT activists were worried that religious people would use the protection against discrimination on grounds of belief as a “shield” to hide discriminatory acts of their own. The decision of the Court shows that these concerns were unfounded.

In the vast majority of cases, the discrimination faced at work by LGBT people has nothing to do with the religion of the discriminator (and the same is true vice versa: far more religion or belief complaints are brought by Muslims or Sikhs than are by Christians).

Even in situations where there is a genuine conflict, a perfectly workable compromise can usually be reached by saying that each group’s rights are protected (as indeed are everyone else’s) so long as neither acts in a discriminatory way towards the other. Religion does not trump LGBT rights, nor vice versa: the only trump card is equality. Where a person is unwilling to put aside their own prejudice, as a pure matter of good sense, they lose their protection. In both these cases, the difficulty was caused an employee who was not willing to uphold equality principles, and they could hardly be surprised if they were the ones to suffer a sanction.

Eweida and Chaplin’s cases raised different issues. In both cases they were about wearing religious items at work: on an airline and in a hospital. In both cases, the employer said that it needed to protect its corporate image. The hospital had the additional concern that it could not guarantee that a cross might not get in the way during operations. Various compromises were discussed which Ms Chaplin was unwilling to accept.

The Court analysed this as a proportionality exercise. On the one hand, the right to wear religious symbols is a fundamental right: “because a healthy democratic society needs to tolerate and sustain pluralism and diversity; but also because of the value to an individual who has made religion a central tenet of his or her life.” On the other side was the employer’s ability to control its own dress code, to which the Court gave real weight.

Eweida’s employer since has changed its dress code to allow the wearing of crosses. It followed that the justification for its old dress code was weak. In Chaplin’s case the reason for asking her to remove the cross, i.e. the protection of health and safety on a hospital ward, was inherently of a greater magnitude. Accordingly, the ECHR decided the Eweida case in favour of the employee (awarding only modest damages) and Chaplin in favour of the employer.

Again, it is easy to see why the Court determined these cases in the way that it did. Chaplin in particular seems to have been unwilling to make modest compromises, eg wearing her cross with her identity badge, which she refused, as it might come off.

On the issue of principle, my own view is that the employer’s desire to protect a corporate image should rarely be a decisive factor. There are so many aspects of how all of us dress that are integral to our personalities: whether that is a trade unionist wearing a union pin, an LGBT person wearing the rainbow flag, a Muslim woman wearing a hijab, or a Christian a cross. This is one place, surely, where the employee’s choice should be prioritised.

This article first appeared on David Renton’s Struck Out blog.

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One Response to Wear What You Like

  1. Pingback: Wear What You Like – Garden Court Chambers Blog | Current Awareness

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