Friday 6. December 2019
#158 - March 2013

 

The spotlight turns again on the Cross

 

Just a couple of years after the big debate about Crucifixes in Italian schools, the Cross is again the subject of a much commented decision of the European Court of Human Rights.


The decision issued by the European Court of Human Rights in the case Eweida and Others v. The United Kingdom is one of the most hotly debated and anticipated in recent times. Two of the four cases on which the Court decided - concerning Ms. Nadia Eweida and Ms. Shirley Chaplin - focus on the issue of the wearing of religious symbols at the work place.

 

Similar cases, different outcomes

Ms. Eweida was a member of the check-in staff of British Airways, whereas Ms. Chaplin was a nurse in a State hospital. Both ladies visibly wore a Cross on their necks at work, as an expression of their Christian faith. However, each had been asked by their employer to remove it, in accordance with internal ‘uniform policies’ related to the promotion of a certain ‘company image’ and to the health and safety of nurses and patients, respectively. Ms. Eweida ultimately had refused and had been sent home without pay, returning to her post only after the internal policy had been revised more favourably. Ms. Chaplin, also after failed attempts at alternative solutions, had been demoted to a subsequently abolished non-nursing position. After unsatisfactory national proceedings, Ms. Eweida and Ms. Chaplin both raised with the Strasbourg Court the inadequate protection of their right to manifest their religion. In the case of Ms. Eweida, the European Court concluded that, although there is a margin of appreciation for the national authorities in assessing the proportionality of measures taken by a private company towards an employee, no fair balance was struck in this case (excessive weight for the protection of ‘corporate image’, also taking into consideration the discreetness of the object worn, the absence of any detraction from one’s professional appearance and more generally of real infringement on the interests of others). As for Ms. Chaplin, the interference with her freedom of religion was acknowledged, but it was also considered ‘necessary in a democratic society’ in accordance with the Convention: the reason for the request for removal (health and safety in a hospital ward) was considered to be of ‘inherently greater magnitude’ than that in the Eweida case. The Court also stressed the wide margin of appreciation that national authorities enjoy in the area at issue.

 

Unfinished business

In assessing the judgment one should not to be put off by the negative outcome in the Chaplin case. The Court has fortunately rejected the bizarrely imprudent approach that had surfaced at the national level, according to which a distinction should be drawn between what is and what is not a mandatory requirement of a certain religion, with the latter not deserving protection. The Court underlined that the existence of a sufficiently close and direct nexus between an act and the underlying religious belief is sufficient. The Court also stated that, considering the importance of freedom of religion in a democratic society, the possibility of changing job is not sufficient to exclude an interference with this right in the case of restrictions on it in the workplace. These conclusions should have a healthy ripple effect both on future national legal developments, and foster more open practices. While the implications of the Chaplin case will be restricted to the specific sectors where health and safety considerations come into play, the positive ruling concerning Ms. Eweida could impact on a greater number of situations, where wearing a religious symbol is simply considered (sometimes instrumentally) as inappropriate or offensive.

 

The clear cut outcome of the proceedings does not mean that the search for more robust and lasting solutions should not (or will not) be pursued. An enhancement of the use of ‘reasonable accommodation’ to encompass religion has been hinted at. This would entail legal provisions to have employers enacting appropriate measures to accommodate employee’s needs, including those related to the manifestation of his/her religion. The point deserves further reflection, although it raises delicate questions. Greater legal clarity would avoid both exaggerations and chilling effects, although it should remain firm that ‘reasonable’ does not equal ‘unlimited’ (accommodation).

 

Recriminations concerning the ‘nurse case’ are unavoidable, but they are, on balance, unconvincing. The reference to the element of health and safety, although too succinct, has some merit. As for the quite liberal recourse to the ‘margin of appreciation doctrine’, one has to accept that this interpretational tool can lead to different, and not always satisfactory, outcomes on topics that are of great importance from a Christian stand point.

Certainly perspectives of interest can be built on the openings presented by the Strasbourg judges, concerning the fostering of an environment where religion can be expressed without undue limitations.

Alessandro Calcagno

COMECE

 

 

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