Nadia Eweida’s ECHR victory is a hollow one

The long-awaited ruling from the European Court of Human Rights (ECHR) on four cases brought under articles 9 (freedom of religion) and 14 (prohibition of discrimination) of the European Convention on Human Rights has finally been delivered. Bafflingly, although the court rejected the appeals from three of the four applicants, much of the coverage has concentrated on the one they upheld, from Nadia Eweida. The BBC’s headline “BA discriminated against Christian” is a typical example.

However, while the single overturned judgment may be the most interesting story, the details are a lot more complicated than you might expect from the headlines, and parts of the ruling seem positively perverse.

As I argued last year, the precise balance between religious ornamentation and dress codes is a tricky one to strike, and the balance could reasonably be set in various different places by people acting in good faith. I don’t think I can add much to my previous views, so I’ll concentrate on the peculiarities of the ruling.

Colourful metal cross pendantInterestingly, there were two dissenting opinions in this case, which closely match my own. The dissenting judges note that Ms Eweida was content to comply with the dress code for two years prior to her complaint, and originally accepted a requirement to conceal her cross pending resolution of the internal grievance process, before turning up for work in open breach of that agreement.

They also note that BA made every effort to find a compromise, not only offering an alternative position to allow Ms Eweida to wear her cross openly, but reviewing their policy and eventually amending their dress code to permit her to wear her cross. Bizarrely, the majority opinion took this change as evidence that BA were in the wrong because their previous restrictions clearly weren’t necessary.

As the dissenting judges say, people can reasonably and legitimately disagree on the balance to be struck, but BA’s actions were anything but stubborn and rigid, with the company bending over backwards to accommodate Ms Eweida’s wishes. And they argue with some force that a restriction can be strictly unnecessary, while still being important enough to keep in place until it could be fully reviewed.

Despite finding in Ms Eweida’s favour, it’s also noteworthy that the court rejected her claim for loss of earnings, as she repeatedly rejected generous alternative arrangements while her complaint was being dealt with. Although she was found to have suffered discrimination, any financial hardship was entirely her fault. Her behaviour in this respect was clearly regarded as unreasonable.

BA PlaneI find it bizarre that Ms Eweida can claim this as a great victory when the court has clearly concluded that her behaviour throughout was irrational and unhelpful, but it seems totally perverse that the court appears to have decided that BA were guilty of discrimination because they amended their policy following a review.  The moral for any company in a similar position in future appears to be not to give an inch.

Most importantly, though, the court’s rejection of Shirley Chaplin’s similar case against Royal Devon and Exeter Hospitals NHS Trust and the appeals of Lilian Ladele and Gary McFarlane over being expected to perform their jobs for both straight and gay couples make it clear that you can’t expect your workplace to be organised in line with your beliefs. In that light, Ms Eweida’s victory is a hollow one, more on a technicality than the legal principles.

Despite the tone of some of the reporting, I think today’s ruling is actually a strong statement that people with religious beliefs have to fit in with the expectations of their workplace just like everyone else.

Photos by SimonDeanMedia and Terry Wha, used under Creative Commons Generic Attribution License 2.0

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About Recovering Agnostic

I'm Christian by upbringing, agnostic by belief, cynical by temperament, broadly scientific in approach, and looking for answers. My main interest at the moment is in turning my current disengaged shrug into at least a working hypothesis.

10 responses to “Nadia Eweida’s ECHR victory is a hollow one”

  1. Louis says :

    One of the important points of the case that you failed to mention was that Muslim employees are allowed to wear veils by BA but Eweide’s small piece of jewelry is apparently anathema.

    http://www.dailymail.co.uk/news/article-412609/Fury-BA-says-allow-Muslim-veil-cross.html

    • Recovering Agnostic says :

      Because it’s irrelevant – their uniform policy addressed various different forms of religious expression, and struck a balance between uniform and religious conscience. There’s always a point at which you have to draw a line. BA drew the line in a particular place, but Eweida was still offered the opportunity to wear a badge instead of a necklace, or to work in a non-uniform role so that she could keep the necklace.

      And a link to a seven-year-old Daily Mail article which doesn’t actually say what you claim is a long way from a meaningful contribution.

  2. Louis says :

    It’s not irrelevant. A veil does not violate uniform policy but a small necklace does? a veil is ten times as conspicuous and usually matches horribly with workplace uniforms. Do you seriously want to call that a balance ?its a very suspicious place to “draw the line”.

    C’mon. How old the article has nothing on the fact that it refers to the incident you spoke about ( and is probably more accurate reportage than your blog).

    • Recovering Agnostic says :

      The Mail offers no evidence that a veil (a word which covers a multitude of sins) was ever accepted within the uniform policy, merely speculates and insinuates that it might be at some unspecified point.

      Had this been a genuine issue of discrimination, you can be sure that it would have been raised in evidence and referred to in both domestic and ECHR rulings, but they’re strangely silent on it. And of course, as I observed, BA revised their uniform policy following the original case, so what they may or may not have done in 2006 has no relevance to the current situation, unless you know differently.

      On the subject of accuracy, do you have a specific objection, or just a link to rabble-rousing insinuations from a highly partial source?

  3. Louis says :

    They don’t provide evidence? They provide as much evidence as any other newspaper article. They report what they found in investigation. “… Merely speculates and insinuates that it might be at some unspecified point” Did you even read the article. It begins like this: “British Airways has been accused of appalling double standards after admitting Muslim staff may be allowed to wear veils – just weeks after it sent a Christian home for wearing a cross.” That doesn’t sound like speculation or insinuation to me- its pretty damn direct.

    if it was not an issue of discrimination, then the ECHR would not have given it a trial ( and more so, eweida would obviously not have won if they didn’t think her claim was legitimate). The entire case was about the issue of religious discrimination. Well, we’re not talking about their current situation are we? We’re talking about what it was when it happened.

    Oh, so when a newspaper doesn’t say what you want to hear they immediately become partial and rabble rousing ( that’s called being partial). Besides, The Economist reports the same thing, and not only that, they report that the ECHR itself said a similar thing to what I said. “As the ECHR itself observed: “Other BA employees had previously been authorised to wear items of religious clothing such as turbans and hijabs without any negative impact on BA’s brand or image.””

    http://www.economist.com/blogs/gulliver/2013/01/british-airways-and-religious-symbols

    • Recovering Agnostic says :

      Exactly – note that “has been accused” is passive, and doesn’t specify who did the accusing. It’s a perfect example of newspapers generating news they want to report because it suits their agenda. Furthermore, the claim is that Muslims *may* be allowed to wear veils. Based on what? Is there any evidence of this happening?

      Bear in mind that BA revised their policy while this case was ongoing (which bizarrely caused them to lose the case and may be what this report is picking up on), all of which makes this entirely irrelevant.

      If they had any evidence of Muslims actually being allowed to wear veils at the same time as Ms Eweida was being told not to wear a cross on a dangly necklace outside her uniform, they’d have published it.

  4. Louis says :

    What do you mean they don’t specify who did the accusing? Its Eweida. She did the accusing. That was one of the points of the article.Besides the headline is still pretty explicit. Well, why can’t I dismiss your absent newspaper sources with the same line- that they simply say it because it suites their agenda? You didn’t respond to the Economist article. Here’s another one from CNN: “A British Christian woman suffered religious discrimination when British Airways told her not to wear a visible cross over her uniform, a top European court ruled Tuesday”. What evidence? You glossed over that the ECHR said that people “had been authorized” to wear hijabs and turbans by BA. The standards of evidence you seem to want would invalidate your own knowledge about this issue.

    http://www.cnn.com/2013/01/15/world/europe/uk-christian-lawsuit/index.html?iref=allsearch

    The issue of whether she suffered discrimination when they told her she couldn’t wear the cross makes irrelevant whether or not they changed their policy afterward or not. Whether or not they changed their policy doesn’t change the question of whether she was subject to religious discrimination at a particular time. By analogy, simply because somebody repents of molesting children and stops doing it, doesn’t mean that the fact that they molested children in the past suddenly becomes irrelevant especially when we are exactly debating about whether a child was molested by him.

    • Recovering Agnostic says :

      Sorry it’s taken me a while to respond to this, I’ve been away for a bit.

      You claimed that I was “ignoring” the “fact” that BA were happy to allow muslims to wear veils (with no further detail on the sort of veil), and the only support you’ve offered for this (as opposed to other aspects of the case) is a Mail article which offers no evidence for the claim at all, except an unattributed quote to the effect that they might consider it at some point. It’s clear that you’re not willing or able to read media reports to discern what’s actually going on, rather than the agenda which someone is trying to push, so I’ll leave that to one side for now, although I think there’s an entire blog post in it in the future.

      But this post is about the ECHR ruling, so can you show me anything to indicate that this extraordinary claim about the veil was raised in court or considered by the judges? If it was raised, why didn’t the judges mention it at all, when it’s such strong evidence? If not, as I strongly suspect, why would I mention it, and why would Eweida’s lawyers neglect to raise such strong support for their case? Stop me when this becomes blindingly obvious.

      • Louis says :

        The Daily Mail is not my only source. I also gave you links to articles in the Economist and CNN. The Economist article clearly implies that Muslim employees and Sikh employees were allowed to wear articles of religious clothing ( the Economist said ‘hijabs” which is a Muslim veil, although I don’t see how the type of veil really matters- veils in general are not part of the BA uniform) by BA at the time of Eweida’s dispute with BA. If it was not at this time, it would not be relevant for the ECHR and CNN to mention it.

        Anyway, my purpose in pointing out the veil issue was to attest that she had actually suffered discrimination and the court did rule that Eweida had suffered religious discrimination. Here’s a quote from that CNN article ( the very first words): “A British Christian woman suffered religious discrimination when British Airways told her not to wear a visible cross over her uniform, a top European court ruled Tuesday.”

        http://www.cnn.com/2013/01/15/world/europe/uk-christian-lawsuit/index.html?iref=allsearch

      • Recovering Agnostic says :

        But it’s self-evident that the court found that she’d been discriminated against – that was what I was writing about, indeed the whole point of writing, because that decision was perverse. So to introduce that ruling as an important point that I’d “failed to mention” is entirely inaccurate.

        The CNN link says nothing at all about Muslims being permitted to wear anything by BA’s policy, and the Economist link only quotes the judges as noting that BA “had previously” (i.e. at some unspecified point) been allowed to wear this or that, specifically mentioning a hijab, not the niqab speculatively mentioned by the Mail. They don’t support the claim you were making.

        The reason why the type of veil matters is precisely because the case hinged on the question of reasonable adjustment, balancing religious beliefs against the degree of adjustment and accommodation required. That someone believes that their religion requires them to wear something is no guarantee that the garment is something that could or should be permitted as part of any uniform policy. A simple hijab (head scarf) is a long way from a niqab or burqa, completely covering the face. Nor are they jewelry, unlike Ms Eweida’s cross. And unlike Ms Eweida, there was no possibility of wearing them in a discreet way beneath their uniform.

        As I said last year, before this went to Europe, people can reasonably differ over where the lines should be drawn in tracing a path between religion and policy, and someone’s always going to be unhappy. But I maintain that this ruling was ridiculous, because what swung it was BA’s later decision to change their policy, allegedly proving that it was previously unnecessarily restrictive. I think it would be better for everyone if it was possible for a company to revise their policy without worrying that this opens them up to legal claims.

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