Religion ruling shows difficulty of balancing rights in workplace

The conclusion reached by the recent European Court of Human Rights judgment on Christian discrimination cases is no surprise but the principle is difficult to apply

Christians and other faith groups do have the right to manifest their religious beliefs in the workplace, but it is a right that must be balanced against the rights of others.

That conclusion, reached by the European Court of Human Rights, is no surprise. But the detailed ruling shows how difficult it was for the judges who heard the claims to apply this broad principle to the cases they were deciding.

Nadia Eweida, a check-in operator for British Airways, was the only one of the four applicants to win her case.

The ruling shows that there is no easy way of balancing the rights of gay people and Christians – it all depends on the circumstances.

In one sense, the balance is shifting towards Christians. Eweida’s victory appears to be the first defeat for the UK in a case brought under Article 9 of the European Human Rights Convention, the right to freedom of thought, conscience and religion. This judgment also strengthens the protection provided by Article 9.

In the past, the court has held that there was no breach of an employee’s religious freedom if the worker could resign and find another job. That was something of a cop-out. Now “the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate”.

The court’s conclusion is certainly very convenient. It supports the right to manifest one’s religion, but against the rights of an employer rather than against the rights of individuals. But, in the other case involving the wearing of a cross, it supports an employer which had sought to justify its policy.

Sensitivity and shrewdness

In the two remaining cases, the court has not favoured Christians over gay people. But in stressing that states have a wide discretion in striking a balance between conflicting rights, it allows for the possibility that future disputes will be decided in favour of religious groups.

Whether you agree with the court or not, you have to give it some credit for sensitivity and shrewdness.

* Joshua Rozenberg is a British legal commentator and journalist