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.
Interestingly, 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.
I 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.