FOURTH SECTION
Application nos. 48420/10 and 59842/10
by Nadia EWEIDA and Shirley CHAPLIN
against the United Kingdom
lodged on 10 August and 29 September 2010
STATEMENT OF FACTS
THE FACTS
The first applicant, Ms Nadia Eweida, is a British national who was born in 1951 and lives in Twickenham. She is represented before the Court by Mr T. Elli of Aughton Ainsworth, a firm of solicitors practising in Manchester. The second applicant, Ms S. Chaplin, is a British national who was born in 1955 and who lives in Exeter. She is represented before the Court by Ms L. Blaxall of the Christian Legal Centre, London and Mr P. Diamond, a barrister practising in Cambridge.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1.The first applicant
a.The applicant's refusal to comply with British Airways' uniform policy
The first applicant, who spent the first eighteen years of her life in Egypt, is a practising Coptic Christian. She considers it a manifestation of her religion visibly to wear a small silver cross on a chain around her neck.
From 1999 the first applicant worked part-time as a member of check-in staff for British Airways Plc, a private company. In common with all the approximately 30,000 British Airways staff in contact with the public, she was required to wear a uniform. British Airways considered that the wearing of a uniform played an important role in maintaining a professional image and in strengthening recognition of the Company's brand.
Until 2004 the uniform for women included a high-necked blouse. In 2004 British Airways introduced a new uniform, which included an open‑necked blouse for women, to be worn with a cravat that could be tucked in or tied loosely at the neck. A wearer guide was produced, which set out detailed rules about every aspect of the uniform. It included the following passage, in a section entitled “Female Accessories”:
“Any accessory or clothing item that the employee is required to have for mandatory religious reasons should at all times be covered up by the uniform. If however this is impossible to do given the nature of the item and the way it is to be worn, then approval is required through local management as to the suitability of the design to ensure compliance with the uniform standards, unless such approval is already contained in the uniform guidelines. ... NB No other items are acceptable to be worn with the uniform. You will be required to remove any item of jewellery that does not conform to the above regulations.”
When an employee reported for work wearing an item which did not comply with the uniform code, it was British Airways' practice to ask the employee to remove the item in question or, if necessary, to return home to change clothes. The time spent by the employee in putting right the uniform would be deducted from his or her wages. It was British Airways' practice to authorise male Sikh employees to wear turbans, as long as these were dark blue or white. Sikh employees were also able to wear a kirpan (ceremonial sword) concealed under their clothes and a bracelet, which would normally be concealed unless authorisation was given to wear a short-sleeved shirt. Female Muslim ground staff members were authorised to wear hijab (headscarves).
Until 20 May 2006 when the applicant wore a cross at work she concealed it under her clothing. On 20 May 2006 she decided to start wearing the cross openly, as a sign of her commitment to her faith. When she arrived at work that day her manager asked her to remove the cross and chain or conceal them under the cravat. The applicant initially refused, but eventually agreed to comply with the instruction after discussing the matter with a senior manager. On 7 August 2006 the applicant again attended work with the cross visible and again agreed to comply with the uniform code only reluctantly, after having been warned that if she refused she would be sent home unpaid. On 20 September 2006 the applicant refused to conceal or remove the cross and was sent home without pay until such time as she chose to comply with her contractual obligation to follow the uniform code. On 23 October 2006 she was offered administrative work without customer contact, which would not have required her to wear a uniform, but she rejected this offer.
In mid-October 2006 a number of newspaper articles appeared about the applicant's case which were critical of British Airways. On 24 November 2006 British Airways announced a review of its uniform policy as regards the wearing of visible religious symbols. Following consultation with staff members and trade union representatives, it was decided on 19 January 2007 to adopt a new policy. With effect from 1 February 2007, the display of religious and charity symbols was permitted where authorised. Certain symbols, such as the cross and the star of David, were given immediate authorisation.
The applicant returned to work on 3 February 2007, with permission to wear the cross in accordance with the new policy. However, British Airways refused to compensate the applicant for the earnings lost during the period when she did not come into work.
b.The domestic proceedings
The applicant lodged a claim with the Employment Tribunal on 15 December 2006, claiming, inter alia, damages for indirect discrimination contrary to regulation 3 of the Employment Equality (Religion and Belief) Regulations 2003 (“the 2003 Regulations”: see below) and complaining also of a breach of her right to manifest her religion contrary to Article 9 of the Convention.
The Employment Tribunal rejected the applicant's claim. It found that the visible wearing of a cross was not a requirement of the Christian faith but a personal choice of the applicant. There was no evidence that any other employee, in a uniformed workforce numbering some 30,000, had ever made such a request or demand, much less refused to work if it was not met. It followed that the applicant had failed to establish that the uniform policy had put Christians generally at a disadvantage.
The applicant appealed to the Employment Appeal Tribunal, which dismissed the appeal on 20 November 2008. The Employment Appeal Tribunal held that it was not necessary for the applicant to show that other Christians had complained about the uniform policy, since a person could be put at a particular disadvantage within the meaning of regulation 3(1) of the 2003 Regulations even if he or she complied, unwillingly, with the restrictions on visible religious symbols. Nevertheless, the Employment Appeal Tribunal concluded that the concept of indirect discrimination implied discrimination against a defined group and that the applicant had not established evidence of group disadvantage.
The applicant appealed to the Court of Appeal, which dismissed the appeal on 12 February 2010. It was argued on behalf of the applicant that the Employment Tribunal and Employment Appeal Tribunal had erred in law and that all that was needed to establish indirect discrimination was evidence of disadvantage to a single individual. The Court of Appeal rejected this argument, which was not supported by the construction of the 2003 Regulations. It endorsed the approach of the Employment Appeal Tribunal, when it held that:
“... in order for indirect discrimination to be established, it must be possible to make some general statements which would be true about a religious group such that an employer ought reasonably to be able to appreciate that any particular provision may have a disparate adverse impact on the group.”
Moreover, even if the applicant's legal argument were correct, and indirect discrimination could be equated with disadvantage to a single individual arising out of her wish to manifest her faith in a particular way, the Employment Tribunal's findings of fact showed the rule to have been a proportionate means of achieving a legitimate aim. For some seven years no-one, including the applicant, had complained about the rule and once the issue was raised it was conscientiously addressed. In the interim, British Airways had offered to move the applicant without loss of pay to work involving no public contact, but the applicant had chosen to reject this offer and instead to stay away from work and claim her pay as compensation.
The Court of Appeal did not consider that the Court's case-law under Article 9 of the Convention would assist the applicant. Sedley LJ, with whom Carnwath and Smith LJJ agreed, referred to Kalaç v. Turkey, 1 July 1997, § 27, Reports of Judgments and Decisions 1997‑IV where the Court said that:
“Article 9 does not protect every act motivated or inspired by a religion or belief. Moreover, in exercising his freedom to manifest his religion, an individual may need to take his specific situation into account”.
He also referred to the judgment of the House of Lords in R (SB) v Governors of Denbigh High School [2006] UKHL 15, where Lord Bingham referred to Kalaç and other decisions of the Court and Commission and concluded:
“The Strasbourg institutions have not been at all ready to find an interference with the right to manifest religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to practise or observe his or her religion without undue hardship or inconvenience”.
On 26 May 2010 the Supreme Court refused the applicant leave to appeal.
2.The second applicant
The second applicant is also a practising Christian. She considers it a manifestation of her religion visibly to wear a crucifix on a chain around her neck and has done so since her confirmation in 1971. In her evidence to the Employment Tribunal she stated as follows:
“I have been a nurse for roughly thirty years and throughout that time I have worn my Crucifix. The Crucifix is an expression of my faith and my belief in the lord Jesus Christ; I cannot remove my Crucifix without violating my faith. The wearing of the Cross is an important expression of my faith as I believe God is calling me to do so as a Christian.
Christians are called by the Bible and God to tell others about their faith and the wearing of a Cross is a visible means of manifesting that calling. Also, by wearing the Cross visibly, I believe it creates more personal accountability in my Christian lifestyle. In other words, if others know I am a Christian because they see the Cross on my necklace, I tend to focus more on my actions and words to keep them as consistent as possible with the requirements of my Christian faith. If I were forced to not wear the Cross, my accountability to Christian living while at work may be compromised and my actions may suffer.”
The second applicant qualified as a nurse in 1981 and was employed by the Royal Devon and Exeter NHS Foundation Trust, a State hospital, from April 1989 to July 2010, with an exceptional employment history. At the time of the events in question she worked on a geriatric ward.
The hospital had a uniform policy, based on guidance from the Department of Health. The hospital's uniform policy provided in paragraph 5.1.5 that “If worn, jewellery must be discreet” and in paragraph 5.3.6:
“5.3.6To minimise the risk of cross infection will be [sic] keep jewellery to a minimum (see 5.1.11). That is:
One plain smooth ring which will not hinder hand hygiene,
One pair of plain discreet earrings.
No necklaces will be worn to reduce the risk of injury when handling patients.
Facial piercing if present should be removed or covered.”
Paragraph 5.1.11 provided:
“Any member of staff who wishes to wear particular types of clothes or jewellery for religious or cultural reasons must raise this with their line manager who will not unreasonably withhold approval”.
There was evidence before the Employment Tribunal that, on health and safety grounds, another Christian nurse had been requested to remove a cross and chain and two Sikh nurses had been informed that they could not wear a bangle or kirpan, and that they had complied with these instructions. Two Muslim doctors were given permission to wear close-fitting hijab.
In June 2007 new uniforms were introduced at the hospital, which for the first time included an V-necked tunic for nurses. In June 2009 the second applicant's manager requested her verbally to remove her “necklace”. The applicant insisted that the crucifix was a religious symbol and sought approval to wear it. This was refused, on the ground that the chain and crucifix might cause injury if an elderly patient pulled on it. The hospital management suggested instead that the applicant wear a turtle necked T‑shirt under her uniform and over the cross and chain, but the applicant insisted that the visible wearing of the crucifix was an essential part of her religious faith.
In November 2009 the applicant was moved to a non-nursing temporary position which ceased to exist in July 2010.
She applied to the Employment Tribunal in November 2009, complaining of both direct and indirect discrimination on religious grounds. In its judgment of 21 May 2010, the Employment Tribunal held that there was no direct discrimination since the hospital's stance was based on health and safety rather than religious grounds. As regards the complaint of indirect discrimination, it held that there was no evidence that “persons”, other than the applicant, had been put at particular disadvantage. Moreover, the hospital's response to the second applicant's request to wear the crucifix visibly had been proportionarte.
The applicant was advised that, in the light of the Court of Appeal's judgment in the first applicant's case, an appeal on points of law to the Employment Appeal Tribunal would have no prospect of success.
B. Relevant domestic law
Regulation 3 of the Employment Equality (Religion or Belief) Regulations 2003 provides:
3. Discrimination on grounds of religion or belief
(1) For the purposes of these Regulations, a person ('A') discriminates against another person ('B') if –
....
(b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same religion or belief as B, but -
(i) which puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons,
(ii) which puts B at that disadvantage, and
(iii) which A cannot show to be a proportionate means of achieving a legitimate aim.”
Regulation 2(1) provides that “religion” means any religion and “belief” means any religious or philosophical belief.
COMPLAINTS
The applicants complained that domestic law failed adequately to protect their right to manifest their religion, contrary to Article 9 of the Convention, taken alone or in conjunction with Article 14.
QUESTIONS TO THE PARTIES
1. In each case, did the restriction on visibly wearing a cross or crucifix at work amount to an interference with the applicant's right to manifest her religion or belief, as protected by Article 9 of the Convention?
2. In the event that there was such an interference: (a) in the first applicant's case, was there a breach of the State's positive obligation to protect the applicant's rights under Article 9? (b) in the second applicant's case, was the interference “necessary in a democratic society”?
3. Was there a breach of Article 14 taken together with Article 9 in either case?
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