In reviewing consolidated cases and applying balancing tests, European Court of Human Rights finds in one case that the United Kingdom failed to adequately protect the complainant’s right to manifest her religion at the workplace; the Court finds no violation of the European Convention on Human Rights in the other consolidated cases

In the following judgment, the European Court of Human Rights partly sided with complainants who
sought to express their religious beliefs at the workplace. Article 9 of the European Convention on
Human Rights 1950 includes the freedom to manifest one’s religious beliefs in the workplace. However, where a person’s religious observance adversely affects the rights of others, the contracting states can impose restrictions.

The complainants E, C, L and M had expressed their religious beliefs in various forms at the workplace and suffered adverse action. E worked for British Airways and was not allowed to wear a visible Christian cross at the workplace. The company policy required religious items to be covered by the uniform while at work. C was a nurse who was not allowed to wear a necklace with a Christian cross while handling patients. The hospital policy generally prohibited the use of necklaces to reduce the risk of injury while handling patients. L was a registrar at a local civil registry who refused to be the registrar for civil partnerships. The Borough that employed her had a “Dignity for All” equality and diversity policy which prohibited any kind of discrimination. M was a counselor who refused to work with samesex couples. His employer’s Code of Practice and Principles of Good Practice to ensure that no person receives less favorable treatment. The Court consolidated the four cases.

The Court first reviews applicable United Kingdom law, as well as law in the Council of Europe Member States, as well as in the United States and Canada.

“[Council of Europe Member States] 47.An analysis of the law and practice relating to the wearing of religious symbols at work across twentysix Council of Europe Contracting States demonstrates that in the majority of States the wearing of religious clothing and/or religious symbols in the workplace is unregulated. In three States, namely Ukraine, Turkey and some cantons of Switzerland, the wearing of religious clothing and/or religious symbols for civil servants and other public sector employees is prohibited, but in principle it is allowed to employees of private companies. In five States—Belgium, Denmark, France, Germany and the Netherlands—the domestic courts have expressly admitted, at least in principle, an employer’s right to impose certain limitations upon the wearing of religious symbols by employees; however, there are neither laws nor regulations in any of these countries expressly allowing an employer to do so. In France and Germany, there is a strict ban on the wearing of religious symbols by civil servants and State employees, while in the three other countries the attitude is more flexible. A blanket ban on wearing religious clothing and/or symbols at work by private employees is not allowed anywhere. On the contrary, in France it is expressly prohibited by law. Under French legislation, in order to be declared lawful any such restriction must pursue a legitimate aim, relating to sanitary norms, the protection of health and morals, the credibility of the company’s image in the eyes of the customer, as well as pass a proportionality test.” [...]

“[United States of America] 48. For civil servants and Government employees, the wearing of religious symbols is protected under both the United States Constitution (the Establishment Clause and the Free Exercise Clause) and the Civil Rights Act 1964. When a constitutional claim is made by a public employee, the courts apply the standard of intermediate scrutiny, under which the Government can impose restrictions on the wearing of religious symbols if the action is “substantially related” to promoting an “important” Government interest (see Tenafly Eruv Association v. Borough of Tenafly, 309 F.3d 144, 157 (3rd Cir. 2002)). When a statutory claim is made, the employer must have either offered “reasonable accommodation” for the religious practice or prove that allowing those religious practices would have imposed “undue hardship” on the employer (see Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986); United States v. Board of Education for School District of Philadelphia, 911 F.2d 882, 886 (3rd Cir. 1990); Webb v. City of Philadelphia, 562 F.3d 256 (3rd Cir. 2009)). For private employees there are no constitutional limitations on the ability of employers to restrict the wearing of religious clothing and/or symbols. However, the restrictions from Title VII of the Civil Rights Act continue to apply so long as the employer has over 15 employees.” [Page 1718]

The Court then cites the relevant language of the Convention:

“51.The first, second and fourth applicants complained that the sanctions they suffered at work
breached their rights under Article 9 of the Convention, taken alone or in conjunction with Article 14.
The third applicant complained of a breach of Articles 14 and 9 taken together.”

“Article 9 provides:”

“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to
change his religion or belief and freedom, either alone or in community with others and in public or
private, to manifest his religion or belief, in worship, teaching, practice and observance.”

“2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are
prescribed by law and are necessary in a democratic society in the interests of public safety, for the
protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

“Article 14 provides:”

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property, birth or other status.” [Page 19]

The Court then contemplates how these Articles apply to the cases presented by E, C, L and M.

“1. General principles under Article 9 of the Convention”

“79.The Court recalls that, as enshrined in Article 9, freedom of thought, conscience and religion is one
of the foundations of a ‘democratic society’ within the meaning of the Convention. In its religious
dimension it is one of the most vital elements that go to make up the identity of believers and their
conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned.
The pluralism indissociable from a democratic society, which has been dearly won over the centuries,
depends on it (see Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260A).”

“80.Religious freedom is primarily a matter of individual thought and conscience. This aspect of the
right set out in the first paragraph of Article9, to hold any religious belief and to change religion or
belief, is absolute and unqualified. However, as further set out in Article 9 § 1, freedom of religion also
encompasses the freedom to manifest one’s belief, alone and in private but also to practice in
community with others and in public. The manifestation of religious belief may take the form of
worship, teaching, practice and observance. Bearing witness in words and deeds is bound up with the
existence of religious convictions (see Kokkinakis, cited above, § 31 and also Leyla ahin v. Turkey [GC],
no. 44774/98, § 105, ECHR 2005XI). Since the manifestation by one person of his or her religious belief
may have an impact on others, the drafters of the Convention qualified this aspect of freedom of

religion in the manner set out in Article 9 § 2. This second paragraph provides that any limitation placed
on a person’s freedom to manifest religion or belief must be prescribed by law and necessary in a
democratic society in pursuit of one or more of the legitimate aims set out therein.”

“81. The right to freedom of thought, conscience and religion denotes views that attain a certain level of
cogency, seriousness, cohesion and importance (see Bayatyan v. Armenia [GC], no. 23459/03, § 110,
ECHR 2011; Leela Förderkreis e.V. and Others v. Germany, no. 58911/00, § 80, 6November 2008;
Jakóbski v. Poland, no. 18429/06, § 44, 7 December 2010). Provided this is satisfied, the State’s duty of
neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of
religious beliefs or the ways in which those beliefs are expressed (see Manoussakis and Others v.
Greece, judgment of 26September 1996, Reports 1996IV, p. 1365, § 47; Hasan and Chaush v.Bulgaria
[GC], no. 30985/96, § 78, ECHR 2000XI; Refah Partisi (theWelfare Party) and Others v. Turkey [GC], nos.
41340/98, 41342/98, 41343/98 and 41344/98, § 1, ECHR 2003II).”

“82. Even where the belief in question attains the required level of cogency and importance, it cannot
be said that every act which is in some way inspired, motivated or influenced by it constitutes a
‘manifestation’ of the belief. Thus, for example, acts or omissions which do not directly express the
belief concerned or which are only remotely connected to a precept of faith fall outside the protection
of Article 9 § 1 (see Skugar and Others v. Russia (dec.), no. 40010/04, 3 December 2009 and, for
example, Arrowsmith v. the United Kingdom, Commission’s report of 12 October 1978, Decisions and
Reports 19, p. 5; C. v. the United Kingdom, Commission decision of 15 December 1983, DR 37, p. 142;
Zaoui v.Switzerland (dec.), no. 41615/98, 18 January 2001). In order to count as a “manifestation”
within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An
example would be an act of worship or devotion which forms part of the practice of a religion or belief
in a generally recognised form. However, the manifestation of religion or belief is not limited to such
acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief
must be determined on the facts of each case. In particular, there is no requirement on the applicant to
establish that he or she acted in fulfilment of a duty mandated by the religion in question (see Cha’are
Shalom Ve Tsedek v. France [GC], no. 27417/95, §§ 7374, ECHR 2000VII; Leyla ahin, cited above, §§ 78
and 105; Bayatyan, cited above, § 111; Skugar, cited above; Pichon and Sajous v. France (dec.), no.
49853/99, Reports of Judgments and Decisions 2001X).”

“83. It is true, as the Government point out and as Lord Bingham observed in R (Begum) v. Governors of
Denbigh High School case (see paragraph 46 above), that there is caselaw of the Court and Commission
which indicates that, if a person is able to take steps to circumvent a limitation placed on his or her
freedom to manifest religion or belief, there is no interference with the right under Article 9 § 1 and the
limitation does not therefore require to be justified under Article 9 § 2. For example, in the abovecited
Cha’are Shalom Ve Tsedek case, the Court held that “there would be interference with the freedom to
manifest one’s religion only if the illegality of performing ritual slaughter made it impossible for
ultraorthodox Jews to eat meat from animals slaughtered in accordance with the religious prescriptions

they considered applicable”. However, this conclusion can be explained by the Court’s finding that the
religious practice and observance at issue in that case was the consumption of meat only from animals
that had been ritually slaughtered and certified to comply with religious dietary laws, rather than any
personal involvement in the ritual slaughter and certification process itself (see §§ 80 and 82). More
relevantly, in cases involving restrictions placed by employers on an employee’s ability to observe
religious practice, the Commission held in several decisions that the possibility of resigning from the job
and changing employment meant that there was no interference with the employee’s religious freedom
(see, for example, Konttinen v. Finland, Commission’s decision of 3 December 1996, Decisions and
Reports 87A, p. 68; Stedmanv. the United Kingdom, Commission’s decision of 9 April 1997; compare
Kosteski v. ‘the former Yugoslav Republic of Macedonia’, no. 55170/00, § 39, 13 April 2006). However,
the Court has not applied a similar approach in respect of employment sanctions imposed on individuals
as a result of the exercise by them of other rights protected by the Convention, for example the right to
respect for private life under Article 8; the right to freedom of expression under Article 10; or the
negative right, not to join a trade union, under Article 11 (see, for example, Smith and Grady v. the
United Kingdom, nos. 33985/96 and 33986/96, § 71, ECHR 1999VI; Vogt v. Germany, 26 September
1995, § 44, Series A no. 323; Young, James and Webster v. the United Kingdom, 13 August 1981,
§§5455, Series A no. 44). Given the importance in a democratic society of freedom of religion, the
Court considers that, where an individual complains of a restriction on freedom of religion in the
workplace, rather than holding that the possibility of changing job would negate any interference with
the right, the better approach would be to weigh that possibility in the overall balance when considering
whether or not the restriction was proportionate.”

“84. According to its settled caselaw, the Court leaves to the States party to the Convention a certain
margin of appreciation in deciding whether and to what extent an interference is necessary. This margin
of appreciation goes hand in hand with European supervision embracing both the law and the decisions
applying it. The Court’s task is to determine whether the measures taken at national level were justified
in principle and proportionate (see Leyla ahin, cited above, § 110; Bayatyan, cited above, §§ 121122;
Manoussakis, cited above, § 44). Where, as for the first and fourth applicants, the acts complained of
were carried out by private companies and were not therefore directly attributable to the respondent
State, the Court must consider the issues in terms of the positive obligation on the State authorities to
secure the rights under Article 9 to those within their jurisdiction (see, mutatis mutandis, Palomo
Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, §§ 5861, ECHR
2011; see also OttoPremingerInstitut v. Austria judgment of 25 November 1994, Series A no. 295, § 47).
Whilst the boundary between the State’s positive and negative obligations under the Convention does
not lend itself to precise definition, the applicable principles are, nonetheless, similar. In both contexts
regard must be had in particular to the fair balance that has to be struck between the competing
interests of the individual and of the community as a whole, subject in any event to the margin of
appreciation enjoyed by the State (see Palomo Sánchez and Others, cited above, § 62).”
“2. General principles under Article 14 of the Convention”

“85. The Court recalls that Article 14 of the Convention has no independent existence, since it has effect
solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the
Convention and its Protocols. However, the application of Article 14 does not presuppose a breach of
one or more of such provisions and to this extent it is autonomous. For Article 14 to become applicable
it suffices that the facts of a case fall within the ambit of another substantive provision of the
Convention or its Protocols (see, for example, Thlimmenos v. Greece [GC], no. 34369/97, § 40, ECHR
2000IV).”

“86. The Court has established in its caselaw that only differences in treatment based on an identifiable
characteristic, or ‘status’, are capable of amounting to discrimination within the meaning of Article 14
(Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010). ‘Religion’ is specifically
mentioned in the text of Article 14 as a prohibited ground of discrimination.”

“87. Generally, in order for an issue to arise under Article 14 there must be a difference in the treatment
of persons in analogous, or relevantly similar, situations (Burden v. the United Kingdom [GC], no.
13378/05, § 60, ECHR 2008). However, this is not the only facet of the prohibition of discrimination in
Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the
Convention is also violated when States, without an objective and reasonable justification, fail to treat
differently persons whose situations are significantly different (Thlimmenos, cited above, § 44; see also
D.H. and Others v. the Czech Republic [GC], no.57325/00, § 175, ECHR 2007; Runkee and White v. the
United Kingdom, nos. 42949/98 and 53134/99, § 35, 10 May 2007).”

“88. Such a difference of treatment between persons in relevantly similar positions or a failure to treat
differently persons in relevantly different situations is discriminatory if it has no objective and
reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a
reasonable relationship of proportionality between the means employed and the aim sought to be
realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent
differences in otherwise similar situations justify a different treatment (Burden, cited above, § 60). The
scope of this margin will vary according to the circumstances, the subjectmatter and the background
(Carson and Others, cited above, § 61).” [Page 2933]

The Court concludes as follows:

As for complainant E who worked for British Airways, the necessary fair balance had not been struck.
While the employer wishes to project a certain corporate image, small and or discreet religious items
will not adversely affect the brand or image. Thus, there was a violation of Article 9:

“93. When considering the proportionality of the steps taken by British Airways to enforce its uniform
code, the national judges at each level agreed that the aim of the code was legitimate, namely to
communicate a certain image of the company and to promote recognition of its brand and staff. The
Employment Tribunal considered that the requirement to comply with the code was disproportionate,
since it failed to distinguish an item worn as a religious symbol from a piece of jewellery worn purely for
decorative reasons. This finding was reversed on appeal to the Court of Appeal, which found that British
Airways had acted proportionately. In reaching this conclusion, the Court of Appeal referred to the facts
of the case as established by the Employment Tribunal and, in particular, that the dress code had been
in force for some years and had caused no known problem to the applicant or any other member of
staff; that Ms Eweida lodged a formal grievance complaint but then decided to arrive at work displaying
her cross, without waiting for the results of the grievance procedure; that the issue was conscientiously
addressed by British Airways once the complaint had been lodged, involving a consultation process and
resulting in a relaxation of the dress code to permit the wearing of visible religious symbols; and that Ms
Eweida was offered an administrative post on identical pay during this process and was in February 2007
reinstated in her old job.

94. It is clear, in the view of the Court, that these factors combined to mitigate the extent of the
interference suffered by the applicant and must be taken into account. Moreover, in weighing the
proportionality of the measures taken by a private company in respect of its employee, the national
authorities, in particular the courts, operate within a margin of appreciation. Nonetheless, the Court has
reached the conclusion in the present case that a fair balance was not struck. On one side of the scales
was Ms Eweida’s desire to manifest her religious belief. As previously noted, this 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 to be able to
communicate that belief to others. On the other side of the scales was the employer’s wish to project a
certain corporate image. The Court considers that, while this aim was undoubtedly legitimate, the
domestic courts accorded it too much weight. Ms Eweida’s cross was discreet and cannot have
detracted from her professional appearance. There was no evidence that the wearing of other,
previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had
any negative impact on British Airways’ brand or image. Moreover, the fact that the company was able
to amend the uniform code to allow for the visible wearing of religious symbolic jewellery demonstrates
that the earlier prohibition was not of crucial importance.

95. The Court therefore concludes that, in these circumstances where there is no evidence of any real
encroachment on the interests of others, the domestic authorities failed sufficiently to protect the first
applicant’s right to manifest her religion, in breach of the positive obligation under Article 9. In the light
of this conclusion, it does not consider it necessary to examine separately the applicant’s complaint
under Article 14 taken in conjunction with Article 9.” [Page 3435]

As for complainant C who worked as a nurse, the policy of prohibiting jewelry which might injure
patients is reasonable. The interference with her freedom to manifest religion was necessary. There was
no violation of Articles 9 or 14:

“98. The second applicant’s employer was a public authority, and the Court must determine whether the
interference was necessary in a democratic society in pursuit of one of the aims set out in Article 9 § 2.
In this case, there does not appear to be any dispute that the reason for the restriction on jewellery,
including religious symbols, was to protect the health and safety of nurses and patients. The evidence
before the Employment Tribunal was that the applicant’s managers considered there was a risk that a
disturbed patient might seize and pull the chain, thereby injuring herself or the applicant, or that the
cross might swing forward and could, for example, come into contact with an open wound. There was
also evidence that another Christian nurse had been requested to remove a cross and chain; two Sikh
nurses had been told they could not wear a bangle or kirpan; and that flowing hijabs were prohibited.
The applicant was offered the possibility of wearing a cross in the form of a brooch attached to her
uniform, or tucked under a highnecked top worn under her tunic, but she did not consider that this
would be sufficient to comply with her religious conviction.

99. The Court considers that, as in Ms Eweida’s case, the importance for the second applicant of being
permitted to manifest her religion by wearing her cross visibly must weigh heavily in the balance.
However, the reason for asking her to remove the cross, namely the protection of health and safety on a
hospital ward, was inherently of a greater magnitude than that which applied in respect of Ms Eweida.
Moreover, this is a field where the domestic authorities must be allowed a wide margin of appreciation.
The hospital managers were better placed to make decisions about clinical safety than a court,
particularly an international court which has heard no direct evidence.

100. It follows that the Court is unable to conclude that the measures of which Ms Chaplin complains
were disproportionate. It follows that the interference with her freedom to manifest her religion was
necessary in a democratic society and that there was no violation of Article 9 in respect of the second
applicant.

101. Moreover, it considers that the factors to be weighed in the balance when assessing the
proportionality of the measure under Article 14 taken in conjunction with Article 9 would be similar, and
that there is no basis on which it can find a violation of Article 14 either in this case.” [Page 3637]

As for complainant L who was a registrar, the local authority’s policy sought to protect the rights of
others, which are also protected under the Convention. National authorities have a wide margin of
discretion in striking a balance between such competing Convention rights. There was no violation of
Article 14 in conjunction with Article 9:

“104. The Court considers that the relevant comparator in this case is a registrar with no religious
objection to samesex unions. It agrees with the applicant’s contention that the local authority’s
requirement that all registrars of births, marriages and deaths be designated also as civil partnership
registrars had a particularly detrimental impact on her because of her religious beliefs. In order to
determine whether the local authority’s decision not to make an exception for the applicant and others
in her situation amounted to indirect discrimination in breach of Article 14, the Court must consider
whether the policy pursued a legitimate aim and was proportionate.

105. The Court of Appeal held in this case that the aim pursued by the local authority was to provide a
service which was not merely effective in terms of practicality and efficiency, but also one which
complied with the overarching policy of being “an employer and a public authority wholly committed to
the promotion of equal opportunities and to requiring all its employees to act in a way which does not
discriminate against others”. The Court recalls that in its caselaw under Article 14 it has held that
differences in treatment based on sexual orientation require particularly serious reasons by way of
justification (see, for example, Karner v. Austria, no. 40016/98, §37, ECHR 2003IX; Smith and Grady,
cited above, § 90; Schalk and Kopf v. Austria, no. 30141/04, § 97, ECHR 2010). It has also held that
samesex couples are in a relevantly similar situation to differentsex couples as regards their need for
legal recognition and protection of their relationship, although since practice in this regard is still
evolving across Europe, the Contracting States enjoy a wide margin of appreciation as to the way in
which this is achieved within the domestic legal order (Schalk and Kopf, cited above, §§ 99108). Against
this background, it is evident that the aim pursued by the local authority was legitimate.

106. It remains to be determined whether the means used to pursue this aim were proportionate. The
Court takes into account that the consequences for the applicant were serious: given the strength of her
religious conviction, she considered that she had no choice but to face disciplinary action rather than be
designated a civil partnership registrar and, ultimately, she lost her job. Furthermore, it cannot be said
that, when she entered into her contract of employment, the applicant specifically waived her right to
manifest her religious belief by objecting to participating in the creation of civil partnerships, since this
requirement was introduced by her employer at a later date. On the other hand, however, the local
authority’s policy aimed to secure the rights of others which are also protected under the Convention.
The Court generally allows the national authorities a wide margin of appreciation when it comes to
striking a balance between competing Convention rights (see, for example, Evans v. the United Kingdom
[GC], no. 6339/05, § 77, ECHR 2007I). In all the circumstances, the Court does not consider that the
national authorities, that is the local authority employer which brought the disciplinary proceedings and
also the domestic courts which rejected the applicant’s discrimination claim, exceeded the margin of
appreciation available to them. It cannot, therefore, be said that there has been a violation of Article 14
taken in conjunction with Article 9 in respect of the third applicant.” [Page 3738]

As for complainant M who refused to counsel samesex couples, the employer’s action was intended to
ensure its policy of nondiscriminatory service. Thus, a balance had to be struck between M’s rights to
manifest his religious beliefs and the employer’s interest in securing the rights of others. The adverse
action against M was within the margin of discretion. There was no violation of Articles 9 or 14:

“109. It remains to be determined whether the State complied with this positive obligation and in
particular whether a fair balance was struck between the competing interests at stake (see paragraph 84
above). In making this assessment, the Court takes into account that the loss of his job was a severe
sanction with grave consequences for the applicant. On the other hand, the applicant voluntarily
enrolled on Relate’s postgraduate training programme in psychosexual counselling, knowing that Relate
operated an Equal Opportunities Policy and that filtering of clients on the ground of sexual orientation
would not be possible (see paragraphs3234 above). While the Court does not consider that an
individual’s decision to enter into a contract of employment and to undertake responsibilities which he
knows will have an impact on his freedom to manifest his religious belief is determinative of the
question whether or not there been an interference with Article 9 rights, this is a matter to be weighed
in the balance when assessing whether a fair balance was struck (see paragraph 83 above). However, for
the Court the most important factor to be taken into account is that the employer’s action was intended
to secure the implementation of its policy of providing a service without discrimination. The State
authorities therefore benefitted from a wide margin of appreciation in deciding where to strike the
balance between Mr McFarlane’s right to manifest his religious belief and the employer’s interest in
securing the rights of others. In all the circumstances, the Court does not consider that this margin of
appreciation was exceeded in the present case.

110. In conclusion, the Court does not consider that the refusal by the domestic courts to uphold Mr
McFarlane’s complaints gave rise to a violation of Article 9, taken alone or in conjunction with Article
14.” [Page 3839]

The partial dissent disagrees with the finding of an Article 9 violation for complainant E. The employer’s
workplace policy was reasonable and justified, and the policy was a proportionate means of achieving a
legitimate end.

Citation: European Court of Human Rights, Case of Eweida and Others v. The United Kingdom
(48420/10) (15 January 2013, final as of 27/05/2013), [2013] I.R.L.R. 231; (2013) 57 E.H.R.R. 8; [2013] Eq.
L.R. 264; (2013) 163 N.L.J. 70.