Tuesday, 15 January 2013

Christian nurse Ms Shirley Chaplin loses in European Court of Human Rights

A Christian nurse, Ms Shirley Chaplin who was told not to wear her necklace with a cross or to hide it has lost her case in the European Court of Human Rights. Her claim based on religious discrimination failed. Dangling necklaces religious or not are a health risk in medical wards.

Health needs prevail over religious expression. The ruling is fair.

However, in UK NHS and medical institutions has been cruel to mentally ill people where religious uniforms have been allowed despite the fact that it is known that uniforms are not a good idea at all in mental health setting for many reasons.

There is nothing surprising about the fact that psychiatric patients suffered. The Royal College of Psychiatrists has been dominated by religious lot of psychiatrists for many years. Their head of Ethics Committee was undeclared preacher and a Consultant Psychiatrist who was allowed by the General Medical Council to cause havoc at their Fitness to Practice hearings against doctor(s) where she sat as one of their Fitness To Practice Panelist. Doctor who objected to the wearing of religious uniforms in mental health setting was erased from the medical register.

The General Medical Council never took out any disciplinary measures against the undeclared preacher, Dr Gwen Adshead despite the fact that she breached their policy which states that interests by Fitness to Practice Panellists panelists have to be declared.

 Issued by the Registrar of the EuropeanCourt of Human Rights:
ECHR 012 (2013)
Right to manifest religion at work is protected
but must be balanced against rights of others
In today’s Chamber judgment in the case of Eweida and Others v. the United Kingdom
(application nos. 48420/10, 59842/10, 51671/10 and 36516/10), which is not final1, the
European Court of Human Rights held:
by five votes to two, that there had been a violation of Article 9 (freedom of religion) of
the European Convention on Human Rights as concerned Ms Eweida;
unanimously, that there had been no violation of Article 9 of the European Convention,
taken alone or in conjunction with Article 14 (prohibition of discrimination), as
concerned Ms Chaplin and Mr McFarlane; and
by five votes to two, that there had been no violation of Article 14 taken in conjunction
with Article 9 as concerned Ms Ladele.
All four applicants are practising Christians. Ms Eweida, a British Airways employee, and
Ms Chaplin, a geriatrics nurse, complained that their employers placed restrictions on
their visibly wearing Christian crosses around their necks while at work. Ms Ladele, a
Registrar of Births, Deaths and Marriages, and Mr McFarlane, a Relate counsellor
complained about their dismissal for refusing to carry out certain of their duties which
they considered would condone homosexuality.
The Court did not consider that the lack of explicit protection in UK law to regulate the
wearing of religious clothing and symbols in the workplace in itself meant that the right
to manifest religion was breached, since the issues could be and were considered by the
domestic courts in the context of discrimination claims brought by the applicants.
In Ms Eweida’s case, the Court held that on one side of the scales was Ms Eweida’s
desire to manifest her religious belief. On the other side of the scales was the employer’s
wish to project a certain corporate image. While this aim was undoubtedly legitimate,
the domestic courts accorded it too much weight.
As regards Ms Chaplin, the importance for her to be allowed to bear witness to her
Christian faith by wearing her cross visibly at work weighed heavily in the balance.
However, the reason for asking her to remove the cross, namely the protection of health
and safety on a hospital ward, was inherently more important than that which applied in
respect of Ms Eweida and the hospital managers were well placed to make decisions
about clinical safety.
In the cases of Ms Ladele and Mr McFarlane, it could not be said that national courts had
failed to strike a fair balance when they upheld the employers’ decisions to bring
disciplinary proceedings. In each case the employer was pursuing a policy of nondiscrimination
against service-users, and the right not to be discriminated against on
grounds of sexual orientation was also protected under the Convention.
1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month
period following its delivery, any party may request that the case be referred to the Grand Chamber of the
Court. If such a request is made, a panel of five judges considers whether the case deserves further
examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral
request is refused, the Chamber judgment will become final on that day.
Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for
supervision of its execution. Further information about the execution process can be found here:
Principal facts
The applicants, Nadia Eweida, Shirley Chaplin, Lilian Ladele and Gary McFarlane, are
British nationals who were born respectively in 1951, 1955, 1960 and 1961. They live in
Twickenham, Exeter, London and Bristol, respectively.
Chaplin and Eweida
Both applicants believe that the visible wearing of a cross is an important part of the
manifestation of their faith.
From 1999 Ms Eweida worked part-time as a member of check-in staff for British
Airways and was required to wear a uniform. British Airways’ uniform code required
women to wear a high necked shirt and a cravat, with no visible jewellery. Any item
which a staff member had to wear for religious reasons was to be covered by the
uniform or, if this was not possible, approval had to be sought. Until May 2006, Ms
Eweida wore a small silver cross on a chain around her neck concealed under her
uniform. As a sign of her commitment to her faith, she then decided to wear the cross
openly. In September 2006, she was sent home without pay until she agreed to comply
with the uniform code. In October 2006 she was offered administrative work without the
obligation to wear a uniform or have contact with customers, which she refused. She
finally returned to work in February 2007 when the company’s policy was changed to
permit the display of religious and charity symbols, with the cross and the star of David
being given immediate authorisation.
Ms Chaplin worked as a qualified nurse employed by the Royal Devon and Exeter NHS
Foundation Trust from April 1989 to July 2010. At the time of the events in question she
worked on a geriatrics ward. In June 2007, when new uniforms with V-necks were
introduced in the hospital, Ms Chaplin’s manager asked her to remove the crucifix on the
chain around her neck. Ms Chaplin sought approval to continue wearing her crucifix
which was refused on the ground that it could cause injury if a patient pulled on it or if,
for example, it came into contact with an open wound. In November 2009 she was
moved to a non-nursing temporary position which ceased to exist in July 2010.
Both applicants lodged claims with the Employment Tribunal complaining in particular of
discrimination on religious grounds. The Tribunal rejected Ms Eweida’s claim, finding that
the visible wearing of a cross was not a requirement of the Christian faith but the
applicant’s personal choice and that she had failed to establish that British Airways’
uniform policy had put Christians in general at a disadvantage. Her appeal to the Court
of Appeal was also subsequently rejected and the Supreme Court refused her leave to
appeal in May 2010. Ms Chaplin’s claim was also rejected in May 2010, the Tribunal
holding that the hospital’s position had been based on health and safety grounds and
that there was no evidence that anyone other than the applicant had been put at
particular disadvantage. Given the Court of Appeal’s decision in Ms Eweida’s case, Ms
Chaplin was advised that an appeal had no prospect of success.
Ladele and McFarlane
Both Ms Ladele and Mr McFarlane are Christians, who believe that homosexual
relationships are contrary to God’s law and that it is incompatible with their beliefs to do
anything to condone homosexuality.
Ms Ladele was employed as a Registrar by the London Borough of Islington from 1992 to
2009. When the Civil Partnership Act came into force in the United Kingdom in December
2005, she was informed by her employer that she would henceforth be required to
officiate at civil partnership ceremonies between homosexual couples. When Ms Ladele
refused to sign an amended contract, disciplinary proceedings were brought against her
in May 2007 which concluded that, if she failed to include civil partnership ceremonies as
part of her duties, she would be in breach of Islington Council’s equality and diversity
policy and her contract could be terminated.
Mr McFarlane worked for Relate2 as a Counsellor from May 2003 to March 2008. In 2007
he started a post graduate diploma in psycho sexual therapy which deals in particular
with sexual dysfunction and aims to improve a couple’s sexual activity by improving the
relationship overall. By the end of 2007 Mr McFarlane’s superiors as well as other
therapists had expressed concern that there was conflict between his religious beliefs
and his work with same-sex couples. In January 2008 a disciplinary investigation was
opened. In March 2008 Mr McFarlane was dismissed summarily for gross misconduct on
the ground that he had stated that he would comply with Relate’s Equal Opportunities
Policies and provide counselling to same-sex couples without any intention of doing so. A
subsequent appeal was rejected.
Both applicants brought proceedings before the Employment Tribunal on grounds of
religious discrimination; Mr McFarlane also claimed that he had been unfairly and
wrongfully dismissed. Both claims were rejected on appeal on the basis that their
employers were not only entitled to require them to carry out their duties but also to
refuse to accommodate views which contradicted their fundamental declared principles –
and, all the more so, where these principles were required by law, notably under the
Equality Act (Sexual Orientation) Regulations 2007. Ultimately, in March 2010 Ms Ladele
was refused leave to appeal to the Supreme Court and, in April 2010, Mr McFarlane was
refused permission to appeal again to the Employment Appeal Tribunal as there was no
realistic prospect of it succeeding, given that Mr McFarlane’s case could not sensibly be
distinguished from Ms Ladele’s.
Complaints, procedure and composition of the Court
All four applicants complained that domestic law had failed adequately to protect their
right to manifest their religion. Ms Eweida, Ms Chaplin and Mr McFarlane relied on
Article 9 (freedom of religion), taken alone and in conjunction with Article 14 (prohibition
of discrimination), while Ms Ladele complained only under Article 14 taken in conjunction
with Article 9.
The applications were lodged, respectively, with the European Court of Human Rights on
10 August, 29 September, 27 August and 24 June 2010. The Court communicated3 all
four applications to the United Kingdom Government on 12 April 2011 and asked both
parties to submit their observations.
The Court authorised to intervene as third parties in the proceedings and to submit
written observations4: the Equality and Human Rights Commission; The National Secular
Society; Dr Jan Camogursky and The Alliance Defense Fund; Bishop Michael Nazir-Ali;
The Premier Christian Media Trust; the Bishops of Chester and Blackburn; Associazone
"Giuseppi Dossetti: i Valori"; Observatory on Intolerance and Discrimination against
Christians in Europe; Liberty; the Clapham Institute and KLM; the European Centre for
Law and Justice; Lord Carey of Clifton; and, the Fédération Internationale des ligues des
Droits de l’Homme (FIDH, ICJ, ILGA-Europe).
2 Relate is a national organisation which provides a confidential sex therapy and relationship counselling
3 In accordance with Rule 54 of the Rules of Court, a Chamber of seven judges may decide to bring to the
attention of a Convention State's Government that an application against that State is pending before the
Court (the so-called "communications procedure").
4 under Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court.
A hearing took place in public in the Human Rights Building, Strasbourg, on 4 September
Judgment was given by a Chamber of seven judges, composed as follows:
David Thór Björgvinsson (Iceland), President,
Lech Garlicki (Poland),
Nicolas Bratza (the United Kingdom),
Päivi Hirvelä (Finland),
Zdravka Kalaydjieva (Bulgaria),
Nebojša Vučinić (Montenegro),
Vincent A. de Gaetano (Malta),
and also Lawrence Early, Section Registrar.
Decision of the Court
The Court emphasised the importance of freedom of religion, as an essential part of the
identity of believers and one of the foundations of pluralistic, democratic societies.
Freedom of religion under Article 9 of the Convention includes freedom to manifest one’s
religious belief, including in the workplace. However, where an individual’s religious
observance impinges on the rights of others, some restrictions can be made. It is up to
the authorities of the Contracting States, in the first place, to decide what is necessary.
The Court’s task is to review whether the measures taken at national level were justified
in principle and struck a fair balance between the various competing rights and interests.
Ms Eweida and Ms Chaplin
The Court considered that there had been an interference with both women’s right to
manifest their religion in that they had been unable to wear their crosses visibly at work.
As concerned Ms Eweida, who worked for a private company and could not therefore
attribute that interference directly to the State, the Court had to examine whether her
right freely to manifest her religion had been sufficiently protected within the domestic
legal order. In common with a large number of contracting States5, the UK does not
have legal provisions specifically regulating the wearing of religious clothing and symbols
in the workplace. However, it was clear that the legitimacy of BA’s uniform code and the
proportionality of the measures it had taken had been examined in detail by the
domestic courts. Therefore, the lack of explicit protection in the UK law in this area did
not, in itself, mean that Ms Eweida’s right to manifest her religion had been breached.
Nonetheless, the Court concluded in her case that a fair balance had not been struck
between, on the one side of the scales, her desire to manifest her religious belief and to
be able to communicate that belief to others, and on the other side of the scales, her
employer’s wish to project a certain corporate image (no matter how legitimate that aim
might be). Indeed, 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. Moreover, the fact that the company had amended the uniform code to allow
for visible wearing of religious symbolic jewellery showed that the earlier prohibition had
not been of crucial importance. The domestic authorities had therefore failed sufficiently
to protect Ms Eweida’s right to manifest her religion, in breach of Article 9. It did not
consider it necessary to examine separately her complaint under Article 14 taken in
conjunction with Article 9.
5 An analysis of the law and practice relating to the wearing of religious symbols at work across 26 Council of
Europe Contracting States demonstrates that in the majority of States the wearing of religious clothing and/or
religious symbols in the workplace is unregulated. See § 47 of the judgment.
On the other hand, the reason for asking Ms Chaplin to remove her cross, namely the
protection of health and safety on a hospital ward, was inherently of much greater
importance. Moreover, hospital managers were better placed to make decisions about
clinical safety than a court, particularly an international court which had heard no direct
evidence. The Court therefore concluded that requiring Ms Chaplin to remove her cross
had not been disproportionate and that the interference with her freedom to manifest
her religion had been necessary in a democratic society. Accordingly, there had been no
violation of Article 9 as concerned Ms Chaplin. It also found that there was no basis
either on which it could find a violation of Article 14 in the case.
Ms Ladele and Mr McFarlane
The Court considered that the most important factor to be taken into account was that
the policies of the applicants’ employers – to promote equal opportunities and to require
employees to act in a way which did not discriminate against others – had the legitimate
aim of securing the rights of others, such as same-sex couples, which were also
protected under the Convention. In particular, in previous cases the Court had held that
differences in treatment based on sexual orientation required particularly serious
justification and that same-sex couples were in a relevantly similar situation to differentsex
couples as regards their need for legal recognition and protection of their
The authorities therefore had wide discretion when it came to striking a balance between
the employer’s right to secure the rights of others and the applicants’ right to manifest
their religion. The Court decided that the right balance had been struck and therefore
held that there had been no violation of Article 14 taken in conjunction with Article 9 as
concerned Ms Ladele, and no violation of Article 9 – taken alone or in conjunction with
Article 14 – as concerned Mr McFarlane.
Just satisfaction (Article 41)
The court held that the United Kingdom was to pay Ms Eweida 2,000 euros (EUR) in
respect of non-pecuniary damage and EUR 30,000 for costs and expenses.
Separate opinion
Judges Bratza and Björgvinsson and De Gaetano and Vučinić expressed partly dissenting
opinions which are annexed to the judgment.
The judgment is available only in English.
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