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ECtHR rules wearing of religious symbols protected under Article 9 of the Convention – but not always

Date: (16 January 2013)    |    

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Wearing of discreet crosses, by Christians at work places which do not interfere with their professional appearances, has been ruled as within their rights and banning, it as a breach of human rights the European Court of Human Rights has ruled.

Nadia Eweida, and Egyptian Coptic Christian, started wearing a small cross openly in 2006, rather than concealing it under the British Airways (BA) uniform.

It was considered a breach of BA’s uniform policy which allowed Sikh men to wear turbans and the Sikh bracelet in summer and Muslim women to wear hijabs.

Eweida was asked by her manager to conceal the cross beneath her cravat for a while she complied but then refused and was sent home without pay. She rejected an offer of administrative work.

The ECtHR said that Eweida’s desire to manifest her religious beliefs was protected under article 9 of the Convention but a “fair balance was not struck” between her desire and her employer’s wish to “project a certain corporate image”.

The Strasbourg judges added that the court felt 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. By amending the uniform code and allowing wearing of religious symbolic jewellery has only shown that the earlier ban on wearing such symbols was not of crucial importance.

The court ruled that under the circumstances there was no evidence of any real encroachment on the interests of others, the domestic courts did not protect the applicant’s right to manifest her religion which was in breach of the positive obligation under article 9.

The Court of Appeals in its ruling had upheld the original employment tribunal decision but the ECtHR rejected it and awarded Eweida 2000, Euros in compensation for her hurt feelings and 30,000 Euros in costs.

In other similar cases the court took a different view, in the Shirley Chaplin case the nurse was working with elderly and was always wearing a cross round her neck which was asked to be removed by her manager for health and safety reasons but she refused and was moved to non nursing position.

Rejecting her claim for protection under article 9, the court ruled that she was asked to remove the cross for protection of health and safety on a hospital ward, which was of a greater magnitude than the one which applied in respect of Eweida.

The ECtHR also rejected the claims of Lillian Ladele, a Christian registrar working for Islington Council, who refused to undertake civil partnership ceremonies.