Tolerate All – Except Intolerance?

The European Court of Human Rights has today handed down its decision in a number of cases concerning the right to freedom from discrimination on the grounds of religion and belief.

There’s a good summary on the BBC’s website. Click here to view.

With a good deal of relief, I think that the European Court has got it right in each and every case.

What are the broad principles we can take from these decisions?

• You have a limited right to manifest your religious beliefs by wearing a cross, especially if it is discreet and does not negatively impact the employer’s reputation or brand (there was no evidence in Ms Eweida’s case that the wearing of e.g. turbans and hijabs by other employees had negatively impacted BA’s brand).

• However, that right might be restricted e.g. in a hospital where on health and safety or hygienic grounds a strict prohibition in relation to uniform is reasonably imposed.

• Each country has a wide “margin of appreciation” as to how it strikes a balance between competing rights – and competing rights are I think most likely to arise where e.g. a Claimant suggests that their right to respect for their religion and belief ought effectively to “trump” a third party’s right to respect for their sexual orientation.

• Where an employer imposes a reasonable and lawful set of equality obligations in an Equality and Diversity Policy, say, employees are to be expected to abide by the requirement to respect the rights of others – even if respecting the rights of others might offend against their own religion or belief.

I have argued before that the pro-religious-rights camp is essentially arguing for a right to discriminate on the grounds of sexual orientation. The European Court has made it clear that, as a rule, the law will not tolerate such intolerance.

We applaud the decision. A victory for tolerance and commonsense – and a reminder that, notwithstanding the bile expressed in certain quarters of the media, Human Rights law often strikes exactly the sort of balance that most people imagine it should.

Paul Scholey - Senior Partner

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