Eweida: The Shift Away From ‘Resignation as a Guarantee of Religious Freedom’ Limited by the Proport
Updated: Dec 20, 2019
The Eweida and Others v United Kingdom  judgement brought positive change to negating restrictions on freedom of religion under Article 9 to an assessment of proportionality. In Ms Eweida’s and Ms Chaplin’s cases, the women’s respective employers had refused to allow them to continue in their role unless they removed crosses that they considered to be religiously required. This in itself is a significant change in approach and is an important victory for the recognition of religious manifestation under Article 9. The first point made was that, while there must be a ‘sufficiently close and direct nexus between the act and the underlying belief’, there was no need for the practice to be religiously mandated. Secondly, the Court disclaimed the specific situation rule, holding that it would be better to weigh the possibility of leaving employment at the balancing stage under the Article 9(2). All restrictions, even those with the best motives, should have their justifications analysed and explained (Pearson 2013, Article 9 at a Crossroads). This is an important aspect of human rights law and is more likely to get the applicant on side. The ECtHR held that the UK courts had failed to strike the right balance as they had accorded the factor of the company’s image too much weight.
This article will assess the assessed statement in two parts. Firstly, in relation to ‘resignation as a guarantee of religious freedom’, the article will applaud the abandonment of this principle and set out the issues that arise from this approach. Secondly, the article will look at the new proportionality based assessment to highlight the benefits of it but will also consider where it may fail.
Part 1: The Shift Away From ‘Resignation as a Guarantee of Religious Freedom’
The traditional and draconian approach involved no violation of Art.9(1) if there was the (false) element of choice in that the applicant has the option of manifesting his/her belief in a different way or elsewhere. In its narrowest sense, it has been ruled that there will not be a violation of article 9 manifestation unless the act is legally forbidden. In the unusual case of Cha'are Shalom Ve Tsedek v. France , the claim failed because eating meat in the proscribed way was not made impossible by illegality and it could be imported from Belgium. It sets excessively high standard that would permit severe burdens on beliefs without considering the justifications given the case would fall at the first hurdle. If this standard were to be applied outside of this context, it would allow all restrictions that did not make the practice illegal without the need for justification. This is clearly draconian, unnecessary and unfair and the Eweida change was much needed.
There remains an issue of whether the matter must concern a mandatory religious rule, even if the impossibility test is rejected. Requiring a religious obligation requires an arbitrary line as to what is required by a religion and what is a religious motivation. This approach is equally unsatisfactory and leads to unfair results. In X v Austria , for example, there was no interference, by not allowing the setup of legal association, with the rights of members of the Unification Church because it was not strictly required by religion. This assumes that religion is a set of rules and all affirmative spiritual and communal aspects are assumed away (Laycock 1990, The Remnants of Free Exercise). It is clear how one’s right to religion and belief under Article 9 is not sufficiently respected and considered in this way. One particularly problematic case was Valsamis v Greece , where a Jehovah’s Witness child refuse to parade in her school commemorating an early war. The Court held that it was unable to determine anything ‘either in the purpose of the parade or in the arrangements for it, which could offend the applicant’s pacifist convictions.’ The Court substituted its judgment for the conscience of those involved, defining what was ‘reasonable’ for them to believe. Such a narrow approach allows justification to be avoided.
In the context of Employment, in which Eweida was decided, the position was that there would be no infringement if the employee could resign from their job and (by implication) find new employment. The Commission for example, in Ahmed v UK , rejected a Muslim teacher’s request for an extended Friday lunch-break so that he could attend Mosque for prayers. The Commission found that he was free to resign ‘if and when he found that his teaching obligations conflicted with his religious duties. In Stedman v UK , similarly, there was no violation where a Christian working in a travel agency refused to work on Sundays because it is the day of rest and worship in her religion as she could resign from the job and did so. The ‘resignation as a guarantee of religious freedom’ approach was an inadequate means of protecting basic human rights. This approach under Article 9 defeated the object of the human rights framework as it places the onus on the victim to ‘go elsewhere’ with their manifestations. A move away from ‘Resignation as a Guarantee of Religious Freedom’ is welcomed as the emphasis should be on the protection from interference rather than the individual’s opportunities to seek alternative employment.
The shift is also an acknowledgement that the ‘option’ to resign is a fantasy given that finding new employment swiftly is unrealistic as there are high unemployment rates across Europe (Harris et al). An individual cannot be expected to resign from her job, which is providing her, and possibly her dependents, with financial security, in the hope that she can find another that will respect her manifestations. The duty is on the state to ensure freedom of religion, rather than expecting individuals to take jobs that will respect their religious manifestations. Freedom of contract, in this situation is a myth and does not exist in substance. The individual will rarely be able to negotiate the offered standard form contract, there will be overwhelming financial pressure to take the role despite the restriction and there is added gravity given the recent welfare cuts.
Part Two: The New Proportionality Based Assessment
The Court’s new focus on justification via balancing through proportionality as three parts. Firstly, this involves looking at whether the restriction is prescribed by ‘adequately accessible and ‘precise’ law to enable the citizen to regulate his behaviour’ (Sunday Times v UK ). The restriction must secondly have a legitimate aim, which includes public order, public health/safety and protecting the rights and freedoms of others but does not extend to national security (Nolan and K v Russia . are all legitimate aims. Thirdly, it must be necessary in a democratic society. This is often applied in religious dress and proselytism where states have a wide margin of appreciation. The proportionality based assessment will allow the court to recognise manifestations and avoid dictating which practices are religions. Restrictions will be then assessed through a balanced approach that will maintain the floodgates but balance different beliefs and rights in a multicultural society and a diverse democracy.
The proportionality test, however, is unlikely to allow for more successful claims. For one, there have also been a series of legitimate aims that have hampered the progression of the freedom to manifest. The need to maintain public order has been held to justify restrictions on access to a Druid summer solstice festival at Stonehenge (Chappell v UK ), a public protest against alcohol and pornography (A v Sweden  and the removal of a religious book containing a chapter on martial arts from a prisoner (X v UK ). Public health and public safety has also proven to be a significant restriction. On these grounds, a high-caste Sikh could be made to clean his prison cell floor (X v UK ) and a Sikh could be forced to wear a crash-helmet instead of a turban for public safety (X v UK  14 DR 234). Some of these restrictions will be necessary for the good of the person and the collective. Some, however, will give too much weight to the justification, as the ECtHR ruled in Eweida and provides an example of how legitimate aims can be used both correctly and incorrectly to restrict manifestation. This, therefore, limits the progress made in Eweida. Protection of the rights and freedoms of others is another legitimate aim used to restrict manifestation and prevent the floodgates from opening. In Eweida and Others, the claims of Ladele, a Council Registrar refused to officiate civil-partnerships because of her Christianity, and McFarlene, a Relate Counsellor who refused to offer psycho-sexual counselling to same-sex couples on the basis of her Christianity, were dismissed. The state had a wide margin of appreciation in striking a balance between the rights of the Applicants to manifest their beliefs and the duty on employers to protect the rights of others. The right balance had been struck, on account of the employers’ policies to promote equal opportunity, and the ban on employees from acting in a way that might discriminate against others. This demonstrates how the Eweida development will not open the flood gates and has limited effect. Sometimes a balance is needed but, with this approach, the applicants are made aware as to why their religious freedom has been restricted.
Secondly, a wide margin of appreciation is afforded to member states giving them a lot of discretion. The margin of appreciation is an allowance for states to determine the democratic necessity of a particular measure, given the principles of subsidiarity, according to which the member states have the primary responsibility of ensuring the protection of human rights and are in touch with the local realities. It is practical & effective (Gross & Aolain) means of keeping member states content in their own sovereignty and it respects cultural diversity. The margin of appreciation, as Lord Lester explains has many problems that relate to Article 9. It creates a geometry of rights in how it is applied and it is an abdication by the court of its duties to judge complex issues (court abdicates by deferring to national systems. It also introduces a strong subjective element and is fraught with moral and cultural relativism that undermines the universality of rights. Member states are given wide discretion in two areas.
The first is religious dress. This is the underline reason why the ECtHR accepted France’s public health aim as legitimate, prescribed by law and necessary in a democratic society in SAS v France  under Article 9(2). It was argued that “the barrier raised against others by a veil concealing the face is perceived by the respondent… as breaching the right of others to live in a space of socialisation which makes living together easier”. The Court accepted that the state may find it necessary in a democratic society to ban the niqab and burka in public– according to the requirements of “living together” in French society – to give particular weight to interaction between individuals and “may consider this to be adversely affected” by people concealing their faces in public. This decision was clearly decided to appease the French since the wearing of veils has become a controversial and much debated topic across Europe in light of thriving, yet unfortunate, Islamophobia. Bratza states that the Court pays ‘close attention to the particular requirements of the society in question when examining complaints that a law or practice in that society violates the Convention.’ This seems, however, as if misguided public opinion should set the standards of human rights. This is problematic for the new approach set out in Eweida as although it could allow a range of factors to be considered in order to limit the wider remit. It also demonstrates that Article 9 remains limited.
This new approach is welcomed but it does not give greater protection to Article 9 rights as the justification element under Article 9(2) allows for significant restrictions. The new approach is significant, however, because restrictions should be challenged via justification rather than setting an impossible or unfair standard. This allows the applicant to understand why they have been burdened and why they cannot manifest their religion in the way that they want. This gives greater respect for the manifestation and the Court does not have to decide what is obligated by religion and what is only motivated by religion. The ECtHR must look to why the manifestation is restricted and determine whether they are legitimate, proscribed by law and necessary in a democratic society.
 Martínez-Torrón and Navarro-Valls (2004), ‘Protection of Religious Freedom in the System of the Council of Europe’ in Lindholm, Durham, and Tahzib-Lie,eds, ‘Facilitating Freedom of Religion and Belief: A Deskbook’ p234