Case No. UKUT-00286-(IAC)

48. Cases involving discrimination on the basis of the Convention right to freedom of thought, conscience and religion offer no or little assistance. It is not suggested that the government is unlawfully discriminating and the AICC is certainly not doing so. Thus, for example, Eweida v British Airways Pl c [2010] EWCA Civ 80, was the well-publicised cases in which the appellant’s employer adopted a practice of not permitting jewellery to be worn and visible at the open neck of the uniform that all employees were required to wear who had contact with the general public. The appellant wore a cross at her neck. Her attitude in doing this was severely criticised by the Court of Appeal and formed part of an unjustified but wide-ranging attack that her employer was anti-Christian. The appellant adopted as a principal plank of her claim the provisions of Reg. 3 of the Employment Equality (Religion or Belief) Regulations 2003: 3. Discrimination on grounds of religion or belief (1) For the purposes of these Regulations, a person ("A") discriminates against another person ("B") if – …. (b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same religion or belief as B, but - (i) which puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons, (ii) which puts B at that disadvantage, and (iii) which A cannot show to be a proportionate means of achieving a legitimate aim. 49. Her case failed in the Court of Appeal but she succeeded in the ECtHR, ( Eweida and Others v. the United Kingdom (nos. 48420/10, 59842/10, 51671/10 and 36516/10), [2013] ECHR 37). The case is of interest in the context of this appeal only by reason of the high importance the Court attached to the right to freedom of thought, conscience and religion as well as the scope of the right. The reasoning is to be found in paragraphs 79-84: The Court recalls that, as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. In its religious dimension it is one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it (see Kokkinakis v. Greece , 25 May 1993, § 31, Series A no. 260-A). Religious freedom is primarily a matter of individual thought and conscience. This aspect of the right set out in the first paragraph of Article 9, to hold any religious belief and to change religion or belief, is absolute and unqualified. However, as further set out in Article 9 § 1, freedom of religion also encompasses the freedom to manifest one’s belief, alone and in private but also to practice in community with others and in public. The manifestation of religious belief may take the form of worship, teaching, practice and observance. Bearing witness in words and deeds is bound up with the existence of religious convictions (see Kokkinakis, cited above, § 31 and also Leyla Şahin v. Turkey [GC], no. 44774/98, § 105, ECHR 2005-XI, 44 EHRR 5 ). Since the manifestation by one person of his or her religious belief may have an impact on others, the drafters of the Convention qualified this aspect of freedom of religion in the manner set out in Article 9 § 2. The right to freedom of thought, conscience and religion denotes views that attain a certain level of cogency, seriousness, cohesion and importance. Even where the belief in question attains the required level of cogency and importance, it cannot be said that every act which is in some way inspired, motivated or influenced by it constitutes a “manifestation” of the belief. Thus, for example, acts or omissions which do not directly express the belief concerned or which are only remotely connected to a precept of faith fall outside the protection of Article 9 § 1.…In order to count as a “manifestation” within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of worship or devotion which forms part of the practice of a religion or belief in a generally recognised form. However, the manifestation of religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. In particular, there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question (see Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, §§ 73-74, ECHR 2000-VII …if a person is able to take steps to circumvent a limitation placed on his or her freedom to manifest religion or belief, there is no interference with the right under Article 9 § 1 and the limitation does not therefore require to be justified under Article 9 § 2. According to its settled case-law, the Court leaves to the States party to the Convention a certain margin of appreciation in deciding whether and to what extent an interference is necessary. This margin of appreciation goes hand in hand with European supervision embracing both the law and the decisions applying it. The Court’s task is to determine whether the measures taken at national level were justified in principle and proportionate.