Tuesday, 15 January 2013
European Court rejects all but one discrimination claims
The judgment of the European Court of Human Rights is now available in the cases of Ms Nadia Eweida, Ms Shirley Chaplin, Ms Lillian Ladele and Mr Gary McFarlane.
In brief, only Nadia Eweida won her case.
See the full text of the judgment at this page, or download a PDF file here.
The court’s own press release is over here (PDF).
Telegraph John Bingham Christian wins right to wear cross at work
BBC British Airways Christian employee Nadia Eweida wins case
Guardian Owen Bowcott BA worker’s rights were infringed by cross ban, European court rules and Ruling on Christian’s right to wear cross ‘does not trump other human rights’
The Archbishop of York has issued a statement: Wearing religious symbols at work.
The National Secular Society has issued a statement.
And the British Humanist Association has issued this statement.
Rosalind English has written at UK Human Rights Blog Strasbourg rules against BA on crucifix issue.
Church Times Gavin Drake British Airways wrong in cross case, says European Court in landmark judgment
Posted by Simon Sarmiento on
Tuesday, 15 January 2013 at 9:28am GMT
You can make a Permalink to this if you like
A reasoned and fair judgment.
Who could argue anything different in the first case when BA changed its policy.
Sounds about right to me - if your religious symbol doesn't get in the way/bread dough/patients feel free to wear it. If, OTOH, you take a secular job, don't assume you can apply your own take on your religion's rules to decide which customers to serve and how.
Oh, and John Sentamu? I saw what you did there:
"Whether people can wear a cross or pray with someone should not be something about which courts and tribunals have to rule."
Employers and courts might, sadly, have to intervene if someone persisted in unwanted personally targeted prayer in work hours.
Their award of damages to Mrs Eweida is significant.
BA offered her alternative employment at the same rate of pay while the matter was resolved. Eweida choose to stay at home, so the small amount of damages reflects this.
There was also €30000 legal costs awarded.
The dissenting opinions are indeed the most interesting!
A fascinating set of issues with some very interesting articles. A lot of this turns on the challenge of a democratic society to balance two very important rights, freedom of expression and freedom of religion. In both instances there is the additional question, where is the harm? Of course, dialogue, negotiation, nuance, these concepts often elude religious dogmatists and ideologically driven secularists alike. On the face of it, I'd say the EU got it right.
The decision is helpful in large part because it makes it clear that rights do not exist in a vacuum, almost as personal property, but are part of a web of obligations in a society. The free exercise of a given right is always constrained by its impact on the rights of others.
I rejoice with Eweida in her victory. This is a very significant ruling, tempered to some extent by the fact the other 'cross' case went the other way and by the other rulings.
The ruling opens up a number of interesting possibilities. One is the possible impact this ruling has across the Council of Europe - one will have to see how the ruling applies to other situations (and indeed other religions).
The other tantalising reality is the fact that, in effect, the ECHR has enhanced the rights of Christians through Convention rights. Had the UK withdrawn from the Convention or the Court this higher level of protection would not be available. Interesting thought as some are arguing we should come out of the Court.
It is good to see that the European Court upholds the ethic of no-discrimination on account of gender or sexuality. That needed to be sorted out.
I agree Martin that the dissenting opinions in the Ladele case are very interesting. They hinge on the changes in Ladele's job description which they contrast with MacFarlane's where they see none. I can see that there might have been a glimmer of hope for Ladele in the case except that they did not go on to examine what a registrar actually does in a Civil Partnership which is to witness a legal document just as a solicitor might a will, while wholly disapproving of the contents, (say in his view wholly unjustifiably and unfairly cutting off a son who was gay and leaving everything the other sons...or even to a cats' home). He might even warn that it would be contestable but in the end he would have a duty to witness it. Then others have also made the point that Ladele never seemed to consider whether some of the people she was marrying (perhaps after the umpteenth divorce) were also breaking God's law in some way. I don't know know whether these issues were explored with her but it is clear that even if she had acted in some way to sift the people she chose to marry on conscience grounds (rather than bona fide legal ones) she would have been instantly fired. So my point is that like MacFarlane she did go into the job knowing that in some cases she might be asked to go against conscience - unless she operated Don't Ask Don't Tell. She might have done the same in the case of Civil Partnerships, since there is no legal expectation that sex of any kind is to take place.
The ECHR has done what the British Government wanted - endorsed the right to wear a cross, but also endorsed the right to ban crosses for good reason, and rejected the suggestion that religious conscience can trump equal treatment of gay people.
It also has an interesting line strongly suggesting that, while gay marriage is not a human right, civil partnership or an equivalent may be.
The ECHR decision on Eweida can be criticised in that they accept the Court of Appeal asked itself the correct question and approached its task entirely correctly - conducting a balancing exercise - but the ECHR simply disagrees with the conclusion reached by the Court of Appeal. The ECHR isn't really supposed to substitute its conclusions for those of the national courts like this.
That there is no legal expectation of any kind of sex to take place in a Civil Partnership is quite irrelevant.
The same Registrars will not be able to refuse to conduct same sex marriages after marriage equality has been introduced.
The principle is the same - Registrars fulfil a legal function on behalf of the state and their personal opinion of that function is irrelevant because they are acting not in their own name but as representatives of the state.
Excellent reflection Tom.
As I recall Islington explored with Ms Ladele her participation in civil partnerships where the couple choose only to sign the schedule. I believe she refused.
While I believe Ms Ladele was reasonably accommodated, the general principle these judges are seeking to promote is one that I would like to see debated more widely.
I am not comfortable with the agenda promoted by my enthusiastic secularist allies and friends, it often sounds a bit like Reform on a bad day!
I agree Erika that is the bottom line. It's just that two of the judges seem to think change in job description added some merit to Ladele's case; like you I don't think it does but was trying to show that even on Ladele's own grounds she had no case, so I think the two judges were wrong, even though Mike Judge of the Christian Institute is vaunting it as a partial victory.
If I am muslim do I also have a right to religious expression across the European Union - such as the wearing of conspicuous religious symbols such as islamic veils and headscarves in French schools?