ABSTRACT
Religion in Employment: Two Questions Given the current focus in international and comparative law on preventing any sort of discrimination in employment and occupation, it is perhaps unsurprising that many recent decisions by the European Court of Human Rights (ECtHR) dealing with the freedom of religion or belief protections of Article 9 of the European Convention on Human Rights (ECHR) are set against a very specifi c backdrop, that of the workplace. From the 2010 decisions against Germany of Obst and Schüth , 1 to the 2014 judgments of Eweida and others v. United Kingdom, 2 Sindicatul ‘Păstorul cel Bun’ v. Romania , 3 and Fernández Martínez v. Spain , 4 this recent body of employment-related decisions offers a vantage point from which to analyze the ECtHR’s most recent elaborations on the notions of state neutrality, church autonomy, and the individual right to freedom of religion in pluralistic democratic societies. To begin, we may ask two seminal questions: Can religion or religious beliefs lawfully affect employment? How is the principle of state neutrality engaged in labor relations where there is a religious element in the employment equation? 5
Individual Religious Freedom in the Workplace: Eweida and Others v. United Kingdom The ECtHR judgment in Eweida and others v. United Kingdom has been welcomed by some academics as a positive turning point in the protection of the right to individual freedom of religion in the case law of the Court. 6
that employment action taken against them by their employers had breached their rights to manifest belief and to not be discriminated against for religious reasons. Nadia Eweida and Shirley Chaplin were both devout Christians who desired to be granted exceptions to uniform codes in their respective jobs in order to visibly wear small crosses around their necks as a symbol of commitment to their faith. 7 Lillian Ladele and Gary McFarlane made conscientious objections to providing professional services for gay and lesbian couples within organizations – one public, one private – that had a strong commitment to nondiscrimination. 8
As with most decisions by the ECtHR, the largest section of this judgment is dedicated to the articulation of the general principles that the Court’s case law has distilled over time when interpreting the rights enshrined in Article 9. The novelty is that in Eweida these general principles were subtly re-articulated by the majority judges in a twofold way that, at least theoretically, has served to clarify, reinforce, and advance the protection of individual religious freedom by signifi cantly enlarging the number of situations in which Article 9 may be a priori deemed to be engaged. 9 However, a critical analysis of the particular outcome of some of the individual cases in Eweida , and more specifi cally of the Court’s rationale when reaching these decisions, may be slightly discouraging for those who anticipated a new trend in Strasbourg for the protection of conscience-and religion-related issues. It would appear that the Court’s initial articulation of more nuanced general principles has not been subsequently followed by a carefully balanced and solid application of those principles.
