The long running battle of the four test cases for religious discrimination at work staggered to a rather limp climax at the European Court of Human Rights this week. Though the London Evening Standard headline yesterday shouts “Workers Win The Right to Wear a Cross”, it should more accurately be “A Worker Wins the Right to Wear a Cross”, and to be completely balanced it should also add “And Another One Doesn’t”. That would obviously make a rotten headline, but it does reflect the complexity of the position rather more usefully.
Nadia Eweida and Shirley Chaplin each complained of religious discrimination by their employers when they were reprimanded for wearing crucifixes at work. A lengthy struggle through the precise definition of what constitutes indirect discrimination under English law (in particular, whether the relevant population was all Christians or merely those who felt compelled to wear a visible crucifix) had left them without recourse. They therefore challenged the law itself, seeking to short-circuit that argument by contending that domestic law did not properly implement the requirements of Article 9 of the European Convention on Human Rights. This grants a freedom to manifest one’s religion or beliefs subject to such limitations as are necessary, among other things, “for the protection of the rights and freedoms of others”. Boiled down, the question was therefore how far wearing a crucifix at work impinged on the rights and freedoms of others concerned, in particular (in Eweida’s case) her employer British Airways and its customers, and its desire to project a suitably professional imagine.
Eweida was successful and it was held that her Article 9 rights had been violated. BA had in any case changed its uniform policy back in 2007 to allow employees to wear a discreet ‘symbol of faith’, thereby irretrievably scuppering any chance it might have had of defending this claim successfully.
Chaplin was however not successful because the possible adverse health and safety implications of wearing a crucifix in her particular position outweighed her religious rights.
In other words, no general right to wear a cross (or any other religious artefact) has been won. All that this case shows is that there is such a right where the employer cannot show a good reason why not. Employers unable to show why some small religious token is inappropriate in their workplace probably rarely seek to ban them anyway, so the practical impact of what is actually a very simple balancing exercise by the ECJ will be more or less none.