Saturday 15. August 2020
#159 - April 2013


Care for your job? Hide your religion

On balancing equality policies and freedom of religion


Can one object on grounds of religion to the performance of certain activities at the work place? The Strasbourg Court has hardly contributed to finding a solution and bringing more clarity to the issue…

Let’s try to imagine two persons, one working as a registrar of births, marriages and deaths at a local public authority and another one providing sex therapy and relationship counselling services. Both are convinced Christians with firm views that entail a refusal to endorse homosexual relations in any way. On the other side there are their employers, proudly implementing their internal “dignity for all”/equality/diversity/equal opportunities policies (also covering discrimination on grounds of sexual orientation). One day, with the introduction of civil partnerships for same-sex couples in the relevant country, the public authority decides to designate all of its births, marriages and deaths registrars as the right and proper people for conducting the relevant ceremonies. The registrar is particularly unlucky, as other local authorities in the same country had allowed registrars with a sincerely held religious objection to performing same-sex civil partnerships to ‘opt out’. The registrar’s refusal to conduct or be associated with civil partnerships ultimately leads to a disciplinary action and to her final dismissal. The counsellor does not fare better, as his reservations, on religious grounds, to commit himself to providing counsel to same-sex couples brings about the very same, dire consequences. This is the true story of two British citizens (Ms. Ladele, a registrar, and Mr. McFarlane, a counsellor, respectively), whose applications were decided on by the European Court of Human Rights after unsuccessful national judiciary proceedings. Ms. Ladele’s complaint was of indirect discrimination on grounds of religion (Article 14 in combination with Article 9 of the Convention), while Mr. McFarlane mainly centred his arguments on Article 9 (Freedom of thought, conscience and religion).


The verdict of the Court

It is interesting to note that while the considerations on the right to freedom of religion made in the judgment (described in last month’s edition of europeinfos with regard to two other applicants covered by it) also apply to the two cases at issue, the final result is different and comparatively negative.


In the case of Ms. Ladele, the Court rejected her claim by underlining that the aim pursued by the employer was legitimate (providing a service in a way that promoted equal opportunities and countered discrimination); and that the means used were proportionate: although Ms. Ladele’s entering into her contract of employment did not entail a ‘waiver’ of her right to manifest her religious belief in the aforesaid way (the requirement to perform civil partnership was introduced by the employer at a later date), the local authority’s policy aimed to secure the rights of others, also protected under the Convention, and the national authorities had not exceeded the wide margin of appreciation at their disposal in striking a balance between competing Convention rights.


As regards Mr. McFarlane, the Court in his case as well had to verify whether a ‘fair balance’ had been struck by the State between the competing interests. The judges significantly underlined that an individual’s decision to enter into a contract of employment and to undertake responsibilities which he/she knows will have an impact on freedom to manifest religious belief is not decisive with reference to the assessment of whether there has been an interference with his/her right to freedom of religion. However it went on to add that this element has to be weighed in the balance when assessing the aforementioned ‘fair balance’. For the Court, the most important factor was again that the employer’s action was intended to secure the implementation of its policy of providing a service without discrimination; and that the State authorities benefitted from a wide margin of appreciation in deciding where to strike the balance (again, not exceeded, according to the judgment).


The outcome is made even more striking by the fact that the Court accepted two key elements with regard to both applicants: their refusals constituted a manifestation of their religion and the ‘no exception’ approach of their employers had entailed particularly serious and severe consequences for them.


A fair solution?

The motivation of the judgment seems to lack the soundness and scrupulousness which the delicacy and complexity of the cases would have demanded. It is doubtful whether the Court made any effort at truly giving guidance on how to balance the rights at stake and the decision will surely not go down in history as a significant contribution to legal certainty. The question of how and why policies that have as their stated objective that of ensuring ‘dignity for all’ and equality can lead to such seemingly self-contradictory effects might be disturbing, but it has some pertinence. From an EU perspective, although the reference point for these cases is the already existing Directive 2000/78/EC, the persistent reservations concerning further EU non-discrimination legislation are also related to sincere concerns for the way the right to freedom of religion (as well as other core fundamental rights) can be effectively ensured in this context.


On a more general level, when cases such as these - that could be settled through reasonable, flexible and sensible solutions - end up in front of an important body such as the Strasbourg Court, the signal is a worrying one. The way towards the guaranteeing of “…the right to express one's own personality at the workplace without suffering any affront to one's conscience or personal dignity” (Centesimus Annus, § 15) also requires a greater effort of all the parties involved in constantly working out together the way to reconcile opposing positions. Rigidity leads to tensions and from there, the step towards conflict is all too short.


More questions than answers

Apart from the doubtful solidity of the arguments used by the Court to support it, many questions remain open after this judgment and some additional ones are raised by it: was the concrete impact of the two applicants’ behaviour on the overall effectiveness of their employers’ service truly significant or rather marginal? Is enough being done to ensure that the religious convictions of single employees are respected and that they are not forced to act against them, while avoiding a genuine disruption of the services provided? Will the judgment have a negative effect (and if so, to what extent) on those people who intend to act in accordance with their faith and conscience at the workplace in morally delicate situations? Does the decision entail the acceptance of the risk that other persons in a similar situation to the applicants could be de facto prevented from, or have a much steeper and more unpleasant climb, in order to gain access to certain occupations?


The outcome of the proceedings signals the recognition of a sort of stifling, implicitly dominant position for equality policies over core human rights, such as the one to freedom of religion; as well as a rather embarrassing disregard of discrimination on grounds of religion in comparison with other, more ‘popular’, grounds of discrimination. On the other hand, the credibility of such serious concerns does not need to be undermined by exaggerated statements, like the ones used in the dissenting opinion to the decision, which referred to the role of freedom of conscience vis-à-vis Nazi firing squads or the Spanish Inquisition.


The maturity of a society is also measured by the extent to which it manages (or fails) to find acceptable and convincing solutions in intricate matters involving balancing conflicting rights. For the moment, we seem to be ‘not quite there yet’…


Alessandro Calcagno


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Note: The views expressed in europeinfos are those of the authors and do not necessarily represent the position of the Jesuit European Office and COMECE.