The decisions in the ECHR religious discrimination ruling on Tuesday shows that there must be a balancing act between the desire to manifest religious belief and the reasons for the restriction which may be judged by a court. In essence there must be good justifiable reasons to restrict the manifestation of religion via the wearing of symbols or practices which are a consequence of religion.
This may be hard for employers who will have to make decisions as to what they allow in the workplace in an inevitably controversial area. For many employers this will make it easier to default to agree to employee requests rather than risk a complaint.
What is not apparent either in the ECHR decision is the position in relation to third parties. What happens if a member of the public or a colleague is offended by such manifestations and make a complaint?
In the Eweida case the ECHR has essentially considered the same arguments as the Supreme Court and simply disagreed with the national courts balancing of the same factors, a point noted in the dissenting judgement of the court.
It is not clear to me why the “margin of appreciation” normally afforded to the state was not sufficient to allow the Supreme Court’s decision to stand. On a slightly Eurosceptic note it is hard to see why there is a need for a Court in Strasbourg to override the decision of a UK court where the court has arrived at a carefully balanced view on the facts and where that decision cannot be characterised as inherently unreasonable.
It’s also important to note that this is a decision of the ECHR and is not linked to EU law. However, this case will have an impact for other governments who will have to allow employees in their countries the freedoms manifested in this case. Some countries for example France prohibit the wearing of religious symbols in employment in the public sector – those rules look like a breach of ECHR law.
