EHRM, 15-01-2013, nr. 48420/10, nr. 59842/10, nr. 51671/10, nr. 36516/10

For civil servants and Government employees, the wearing of religious symbols is protected under both the United States Constitution (the Establishment Clause and the Free Exercise Clause) and the Civil Rights Act 1964. When a constitutional claim is made by a public employee, the courts apply the standard of intermediate scrutiny, under which the Government can impose restrictions on the wearing of religious symbols if the action is ‘substantially related’ to promoting an ‘important’ Government interest (see Tenafly Eruv Association v. Borough of Tenafly, 309 F.3d 144, 157 (3rd Cir. 2002)). When a statutory claim is made, the employer must have either offered ‘reasonable accommodation’ for the religious practice or prove that allowing those religious practices would have imposed ‘undue hardship’ on the employer (see Ansonia Board of Education v. Philbrook, 479 US 60 (1986); United States v. Board of Education for School District of Philadelphia, 911 F.2d 882, 886 (3rd Cir. 1990); Webb v. City of Philadelphia, 562 F.3d 256 (3rd Cir. 2009)). For private employees there are no constitutional limitations on the ability of employers to restrict the wearing of religious clothing and/or symbols. However, the restrictions from Title VII of the Civil Rights Act continue to apply so long as the employer has over 15 employees.

Religious freedom is constitutionally protected under the Canadian Charter of Rights and Freedoms 1982 (the Charter). Section 1 of the Charter provides the state with authority to infringe on freedom of religion in the least restrictive way possible for a ‘compelling government interest’ (see B(R) v. Children's Aid Society of Metropolitan Toronto (1995) 1 SCR 315). Canadian employers, in general, are expected to adjust workplace regulations that have a disproportionate impact on certain religious minorities. The standard applied by the courts in this connection is that of ‘reasonable accommodation’ (see R v Big M Drug Mart Limited (1985) 1 SCR 295). Recent litigation on this point has centred on the rights of Sikh persons to wear a turban or kirpan at work. In Bhinder v. Canadian National Railway Co. (1985) 2 SCR 561, the Supreme Court determined that the claimant could not wear a turban at work because it interfered with his capacity to wear a hard helmet. This was found to represent a ‘bona fide occupational requirement’. The Canadian courts, rather than purporting to define a religion or religious practice, are more interested in the sincerity of the belief in a practice that has a nexus with a religion (see Syndicat Northcrest v. Amselem (2004) 2 SCR 551). In Multani v. Commission scolaire Marguerite-Bourgeoys (2006) 1 SCR 256, in which the Supreme Court of Canada upheld a Sikh student's right to wear a kirpan to school, the court did not undertake a theological analysis of the centrality of kirpans to the Sikh faith. Instead, the court considered that the claimant ‘need[ed] only show that his personal and subjective belief in the religious significance of the kirpan [was] sincere’.

In respect of the complaints by the first, second and fourth applicants under Article 9 taken alone, the Government relied on case-law of the Court to the effect that the provision does not protect each and every act or form of behaviour motivated or inspired by religion or belief. They argued that behaviour which was motivated or inspired by religion or belief, but which was not an act of practice of a religion in a generally recognised form, fell outside the protection of Article 9. The Government referred to the undisputed findings of the Employment Tribunal in respect of the first and second applicants, that each wished to wear the cross visibly as a personal expression of faith. It was not suggested that the visible wearing of a cross was a generally recognised form of practising the Christian faith, still less one that was regarded as a mandatory requirement. The first and second applicants' desire to wear a visible cross, while it may have been inspired or motivated by a sincere religious commitment, was not a recognised religious practice or requirement of Christianity, and did not therefore fall within the scope of Article 9. Similarly, Mr McFarlane's objection to providing psycho-sexual therapy to same-sex couples could not be described as the practice of religion in a generally recognised form.

In the alternative, the Government argued that even if the visible wearing of the cross, or the refusal to offer specific services to homosexual couples, were a manifestation of belief and thus a right protected by Article 9, there had been no interference with this right in respect of any of the applicants. They referred to the House of Lords' judgment R (Begum) v. Governors of Denbigh High School (see paragraph 46 above), where Lord Bingham analysed the Strasbourg jurisprudence applicable to cases where individuals voluntarily accept employment that does not accommodate religious practice, but where there are other means open to them to practise or observe their religion without undue hardship or inconvenience. Lord Bingham had concluded that the Strasbourg case-law formed a ‘coherent and remarkably consistent body of authority’ which made clear that there would be no interference with Article 9 in such circumstances. The cases in which an interference with Article 9 had been assumed or established arose where, even by resigning and seeking alternative employment or attending a different educational establishment, individuals had been unable to avoid a requirement which was incompatible with their religious beliefs (for example, Kokkinakis v. Greece, 25 May 1993, Series A no. 260-A; Leyla Şahin v. Turkey [GC], no. 44774/98, ECHR 2005-XI; Ahmet Arslan v. Turkey, dec., no. 41135/98, 23 February 2010). By contrast, in the present cases the first and second applicants were permitted by their employers to wear a cross at work provided it was covered up when dealing with customers or patients. The third applicant's case was indistinguishable from Pichon and Sajous v. France (dec.), no. 49853/99, ECHR 2001-X, where the Court had found that pharmacists who did not want to supply contraceptives suffered no interference with their Article 9 rights because they were able to manifest their religious beliefs in many ways outside work. Each of the present applicants had been free to seek employment elsewhere; moreover, the first and second applicants had been offered other posts by their current employers at the same rate of pay which involved no restriction on their freedom visibly to wear a cross.

The Government further emphasised that the first and fourth applicants were employed by private companies. Their complaints did not, therefore, involve any allegation of direct interference by the State, but instead the claim that the State did not do all that was required of it under Article 9 to ensure that their private employers permitted them to give expression to their religious beliefs at work. The Government underlined that the possibility of positive obligations being imposed by Article 9 should only be countenanced where the State's failure to adopt measures prevented an individual from freely practising his or her religion. To date there was only one case where the Court had found a State in breach of a positive obligation under Article 9, namely Members of the Gldani Congregation of Jehovah's Witnesses and Others v. Georgia, no. 71156/01, 3 May 2007, where the State authorities had taken no action following a violent attack on a congregation of Jehovah's Witnesses by a group of Orthodox believers. The present applications were not comparable. The fact that these applicants were free to resign and seek employment elsewhere, or to practise their religion outside work, was sufficient to guarantee their Article 9 rights under domestic law. In any event, even if the State did have some positive obligation under Article 9 in relation to the acts of private employers, that obligation was fulfilled in the United Kingdom during the relevant period by the Employment Equality (Religion or Belief) Regulations 2003 (see paragraph 41 above). Regulation 3 defined ‘discrimination’ to include direct religious discrimination (that is, treating an employee less favourably on grounds of his or her religion or belief) and indirect religious discrimination (applying a provision, criterion or practice that places persons of the same religion as the employee at a particular disadvantage and which the employer cannot show was a proportionate means of achieving a legitimate aim).

In the alternative under Article 9 the Government argued that the measures taken by the employers had been proportionate to a legitimate aim in each case. As regards the first applicant, British Airways was entitled to conclude that the wearing of a uniform played an important role in maintaining a professional image and strengthening recognition of the company brand, and it had a contractual right to insist its employees wore a uniform. Prior to the events in question, the restriction on visible items being worn around the neck had caused no known problem among its large uniformed workforce. The first applicant did not raise her objection to the uniform code by seeking its revision, or an authorisation to wear a cross, but instead turned up for work in breach of it. While British Airways was considering the applicant's grievance complaint, it offered her a post on identical pay with no customer contact, but she chose instead to stay at home. In November 2006, five months after the first applicant had launched the grievance procedure, British Airways announced a review of its policy on the wearing of visible religious symbols and, following consultation with staff members and trade union representatives, a new policy was adopted in January 2007, permitting the wearing of visible religious symbols.

In relation to the second applicant, the Government emphasised that the purpose of the restriction was to reduce the risk of injury when handling patients. Restrictions were also placed on the wearing of religious items by non-Christians on health and safety grounds: for example, Sikh nurses were not allowed to wear the kara bracelet or the kirpan sword, and Muslim nurses had to wear closely fitted, rather than flowing, hijab. This was a legitimate aim, pursued in a proportionate manner, particularly as the health trust had offered the second applicant a non-clinical post on the same pay.

The Government accepted that the third applicant sincerely believed that civil partnerships were contrary to God's law and that Mr McFarlane sincerely believed that homosexual activity was sinful and that he should do nothing directly to endorse it. However, the Government also recognised that the London Borough of Islington and Relate were committed to the provision of services on a non-discriminatory basis. This was plainly a legitimate aim for a local authority or a relationship counselling service to pursue. It was proportionate to that aim in each case for the employer to require all employees to perform their roles without discriminating on grounds of sexual orientation. The 2003 Regulations and the 2007 Regulations (see paragraphs 41–42 above) struck a balance in the United Kingdom between the right to manifest religious beliefs and the rights of individuals not to be discriminated against on grounds of sexual orientation. It was a matter falling within the margin of appreciation allowed to the national authorities under Article 9 exactly how that balance should be struck. Moreover, the Court should take the same approach towards proportionality and the margin of appreciation whether it considered these cases under Article 9 alone or under Article 14 taken in conjunction with Article 9.

The first applicant submitted that the wearing of a visible cross was a generally recognised form of practising Christianity. In any event, she further submitted that the Government's formulation of the test that must be satisfied to engage Article 9 by reference to an ‘act of practice of a religion in a generally recognised form’ was incorrect. Such a test was too vague to be workable in practice and would require courts to adjudicate on matters of theological debate, which were clearly outside the scope of their competence. Moreover, it was not supported by the Court's case-law.

In addition, she argued that a restrictive interpretation as to what constituted an interference with Article 9 rights would be inconsistent with the importance which the Court placed on freedom of religion. No other fundamental right was subjected to the doctrine that there would be no interference where it was possible for the individual to avoid the restriction, for example by resigning and finding another job, nor should an individual be considered to have ‘waived’ his or her rights by remaining in employment. The Court should interpret the Convention in the light of current conditions. The availability to the applicant of any means of avoiding the restriction should be taken into account under Article 9 § 2, when considering whether the restriction was justified, rather than under Article 9 § 1 as grounds for holding that there was no interference. In the present case, there had clearly been an interference: the first applicant was prohibited from wearing a cross visibly, which she considered to be the central image of her faith; she found the enforcement of the uniform code deeply humiliating and offensive; in addition, the loss of her salary for four months created significant financial hardship.

The first applicant submitted that domestic law, as it was interpreted and applied by the English courts in her case, failed to give adequate protection to her rights under Article 9. She was denied protection under national law for her entirely sincere and orthodox desire to manifest her faith by wearing a cross, because she was unable to adduce evidence that this was a scriptural requirement or a widely practised manifestation of belief. In addition, the test under national law based on the establishment of group disadvantage was legally uncertain and inherently vulnerable to returning arbitrary results. The Court had never suggested that a positive obligation on the State should only be imposed under Article 9 in exceptional cases and there was no reason of principle why this should be so. In the present case, there had been an on-going failure on the part of the United Kingdom Government to put in place legislation adequate to enable those in the position of the applicant to protect their rights.

The second applicant argued that the visible wearing of a cross or crucifix was clearly an aspect of the practice of Christianity in a generally recognised form. It was incorrect to distinguish between ‘requirements’ and ‘non-requirements’ of a religion, giving the protection of Article 9 only to religious ‘requirements’. Such an approach would place the threshold for protection too high and it was inconsistent with the approach of the domestic courts in such cases as R (Watkins Singh) v. Aberdare High School and Williamson (see above) and this Court in Moscow Branch of the Salvation Army v. Russia, no. 72881/01, ECHR 2006-XI; Jakóbski v. Poland, no. 18429/06, 7 December 2010; and Bayatyan v. Armenia [GC], no. 23459/03, ECHR 2011. Moreover, to hold that only mandatory religious practices fell within the scope of Article 9 would give a higher level of protection to religions which include specific rules which must be adhered to, and a lower level of protection to religions without similar rules, such as Christianity.

The second applicant contested the Government's argument that a requirement to remove or cover her cross at work did not constitute an interference with her right to manifest her religion or belief. While the earlier case-law of the Commission and Court might support the Government's contention, in more recent cases concerning restrictions on the wearing of religious items in educational institutions and at work the Court had found that there had been an interference (see, for example, Dahlab v. Switzerland (dec.), no. 42393/98, ECHR 2001-V; Leyla Şahin, cited above; Dogru v. France, no. 27058/05, 4 December 2008).

Finally, the second applicant reasoned that the interference was not justified under Article 9 § 2. Although the purported aim of the restriction was to reduce the risk of injury when working with elderly patients, no evidence was adduced before the Employment Tribunal to demonstrate that wearing the cross caused health and safety problems. The second applicant further argued that these facts gave rise to a breach of her rights under Article 14 taken in conjunction with Article 9, relying on the alleged difference in the health authority's treatment of her compared to the followers of other religions (in respect of which, see paragraph 55 above).

The third applicant complained under Article 14 taken in conjunction with Article 9, rather than under Article 9 taken alone, because she considered that she had been discriminated against on grounds of religion. She submitted that her acts, for which she was disciplined, were a manifestation of her religion and that the claim certainly reached the lower threshold required for applicability of Article 14, namely that it fell within the ambit of Article 9. She further contended that, in failing to treat her differently from those staff who did not have a conscientious objection to registering civil partnerships, the local authority indirectly discriminated against her. The local authority could reasonably have accommodated her religious beliefs, and its refusal to adopt less restrictive means was disproportionate under Articles 14 and 9.

The third applicant contended that the Court should require ‘very weighty reasons’ in order to justify discrimination on grounds of religion. As with suspect categories so far identified by the Court as requiring ‘very weighty reasons’ (such as sex, sexual orientation, ethnic origin and nationality) religious faith constituted a core aspect of an individual's identity. Moreover, race, ethnicity and religion were often inter-connected and had been linked by the Court (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 43, ECHR 2009 and Cyprus v. Turkey [GC], no. 25781/94, § 309, ECHR 2001-IV).

The third applicant accepted that the aims pursued by the local authority were legitimate, namely to provide access to services, irrespective of sexual orientation and to communicate a clear commitment to non-discrimination. However, she did not consider that the Government had demonstrated that there was a reasonable relationship of proportionality between these aims and the means employed. She emphasised that she was employed as a marriage registrar prior to the change in legislation permitting civil partnerships to be established, and that the basis on which she was employed was fundamentally altered. The local authority had had a discretion not to designate her as a registrar of civil partnerships and could still have provided an efficient civil partnership service while accommodating the applicant's conscientious objection. That objection was to participating in the creation of a legal status based on an institution that she considered to be a marriage in all but name; the applicant did not manifest any prejudice against homosexuals. In any event, it could not be assumed that, had the local authority accommodated the applicant, it would have been seen as approving of her beliefs. For example, when the State permitted doctors whom it employed to opt out of performing abortions, the State was not necessarily seen as approving of the doctors' views; instead it was a sign of tolerance on the part of the State. In this case, however, the local authority did not adequately take into account its duty of neutrality. It failed to strike a balance between delivering the service in a way which would not discriminate on grounds of sexual orientation, while avoiding discriminating against its own employees on grounds of religion.

Mr McFarlane took issue with the Government's position that his adherence to Judeo-Christian sexual morality was not a manifestation of religious belief, despite the fact that, universally, religion promulgates clear moral and sexual boundaries. He submitted that it was trite law to assert that not every act motivated or inspired by religious belief is protected; this was true of any other Convention right that could be limited, such as freedom of speech or the right to respect for private life. The proper standard used by the Court was that any interference with freedom of thought, conscience or religion had to be necessary in a democratic society and proportionate to a legitimate aim being pursued. When determining the margin of appreciation to be allowed to the State in respect of restrictions on freedom of religion, the Court had to take into account what was at stake, namely the need to maintain true religious pluralism, which was inherent to the concept of a democratic society. The protection of Article 9 would be empty of content if it did not go beyond merely safeguarding private manifestation of faith or belief, in a generally recognised form, where it was the State that determined this very issue.

Mr McFarlane emphasised that dismissal from employment and damage to professional reputation was one of the most severe sanctions that could be imposed on an individual, and this had to be taken into account when determining the available margin of appreciation. The applicant was employed by a private company which was not under any statutory requirement to provide the service in question. It would have been possible to refer homosexual clients to another counsellor. It was unrealistic to require the applicant to change job or career because of his moral opposition to homosexual behaviour; the same would not be required of a homosexual who lost his job on discriminatory grounds.

A total of twelve third parties received permission under Rule 44 § 2 of the Rules of Court and Article 36 § 2 of the Convention to submit written comments (see paragraph 5 above).

A number of the interveners submitted comments on the issue whether the wearing of the cross could be considered a manifestation of religious belief. The submissions by the Premier Christian Media Trust; Dr Peter Forster, Bishop of Chester; Nicholas Reade, Bishop of Blackburn and Bishop Michael Nazir-Ali, in addition to relying on the Court's recent decision in Lautsi and Others v. Italy [GC], no. 30814/06, ECHR 2011 (extracts), observed that the cross is a universally-recognised Christian symbol and a ‘self-evident manifestation’ of Christian faith. Further, along with the Equality and Human Rights Commission, the Associazione ‘Giuseppi Dossetti: i Valori’ and Lord Carey of Clifton, they submitted that the proper approach to assessing manifestations of religious belief was a subjective one. In particular, they argued, the idea of a ‘mandatory requirement’ was too high and overly-simplistic. The Premier Christian Media Trust, the Associazione ‘Giuseppi Dossetti: i Valori’ and Bishop Michael Nazir-Ali invited the Court to find that it is not for the State or an employer to assess the veracity of a religious conviction or manifestation. The Equality and Human Rights Commission recommended that the appropriate test, deriving from the Court's more recent case-law, maintained a primary focus on the conviction of the adherent. In contrast, the National Secular Society indicated that the domestic courts made findings of fact on the question whether any given religious practice was driven by a ‘command of conscience’ or by a ‘mere desire to express oneself’. They suggested that the Court should be extremely reluctant to interfere with these factual determinations.

On the question when an interference with Article 9 will be found, the Equality and Human Rights Commission submitted that the courts in the United Kingdom have, in effect, guaranteed different levels of protection for individuals asserting a purely religious identity as opposed to those whose religious and racial identities are intertwined (see R (Watkins-Singh) v. Governing Body of Aberdare Girls' High School [2008] EWHC 1865 (Admin)). Additionally, they stressed that the question of interference must take into account not only the choices a person has made, such as the choice of particular employment, but also the actions of the employer. A number of other interveners made clear their view that it was quite wrong for an employee to be forced to make the invidious choice between his or her job and faith. The National Secular Society took a different approach, emphasising that the ‘freedom to resign is the ultimate guarantee of freedom of conscience’. Building on this, they suggested that there existed no positive obligation on a State to protect employees against uniform or other requirements.

In connection with the question of proportionality and justification of an interference with Article 9, a number of interveners (the European Centre for Law and Justice; Dr Jan Carnogurksy and the Alliance Defence Fund; the Equality and Human Rights Commission; the Associazione ‘Giuseppi Dossetti i Valori’; Bishop Michael Nazir-Ali; Lord Carey; and the Clapham Institute and KLM) referred to the concept of ‘reasonable accommodation’ or, as Lord Carey put it, a ‘mutuality of respect’. They argued, in general terms, that a proportionality analysis by the Court should take into account the possibility of an accommodation of an individual's beliefs and practices. They stressed that some compromise between competing rights was necessary in a democratic and pluralistic society. On this understanding, so long as an individual's religious practices did not detrimentally affect service provision or unduly affect an employer, those religious practices should be permitted and protected at work. In this respect, the Court's attention was drawn by the Alliance Defence Fund to case-law from the United States of America, which required reasonable accommodation of religious beliefs and practices, insofar as that accommodation did not cause ‘undue hardship’ to the employer. Liberty submitted that, in considering the justification for a restriction of Article 9 rights, a Contracting State should be permitted a ‘significant’ margin of appreciation. This was affirmed in the contribution of the National Secular Society which sought to draw the Court's attention to the passage of the Equality Bill 2010 through the Houses of Parliament. Through this process, it was submitted, the United Kingdom had given detailed consideration to possibility of a ‘conscientious objection’ exception. That this exception was finally withdrawn following full debate, they say, demonstrated that the relevant margin of appreciation should be broad. The International Commission of Jurists, Professor Robert Wintemute, the Fédération Internationale des Ligues des Droits de l'Homme and ILGA-Europe referred the Court to comparative materials, indicating that, where they are granted, statutory exceptions to discrimination laws are generally for religious institutions and organisations rather than individuals. By contrast to the views of other interveners, Liberty invited the Court to find that, when looking at the linked issues of proportionality and accommodation, the impact of any accommodation on others, particularly where those others are themselves of minority and/or disadvantaged status should be taken into account. They went further and invited the Court to rely on Article 17 of the Convention, if necessary and appropriate.

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). 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. This second paragraph provides that any limitation placed on a person's freedom to manifest religion or belief must be prescribed by law and necessary in a democratic society in pursuit of one or more of the legitimate aims set out therein.

The right to freedom of thought, conscience and religion denotes views that attain a certain level of cogency, seriousness, cohesion and importance (see Bayatyan v. Armenia [GC], no. 23459/03, § 110, ECHR 2011; Leela Förderkreis e.V. and Others v. Germany, no. 58911/00, § 80, 6 November 2008; Jakóbski v. Poland, no. 18429/06, § 44, 7 December 2010). Provided this is satisfied, the State's duty of neutrality and impartiality is incompatible with any power on the State's part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed (see Manoussakis and Others v. Greece, judgment of 26 September 1996, Reports 1996-IV, p. 1365, § 47; Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 78, ECHR 2000-XI; Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 1, ECHR 2003-II).

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 (see Skugar and Others v. Russia (dec.), no. 40010/04, 3 December 2009 and, for example, Arrowsmith v. the United Kingdom,Commission's report of 12 October 1978, Decisions and Reports 19, p. 5; C. v. the United Kingdom, Commission decision of 15 December 1983, DR 37, p. 142; Zaoui v. Switzerland (dec.), no. 41615/98, 18 January 2001). 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; Leyla Şahin, cited above, §§ 78 and 105; Bayatyan, cited above, § 111; Skugar, cited above; Pichon and Sajous v. France (dec.), no. 49853/99, Reports of Judgments and Decisions 2001-X).

It is true, as the Government point out and as Lord Bingham observed in R (Begum) v. Governors of Denbigh High School case (see paragraph 46 above), that there is case-law of the Court and Commission which indicates that, 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. For example, in the above-cited Cha'are Shalom Ve Tsedek case, the Court held that ‘there would be interference with the freedom to manifest one's religion only if the illegality of performing ritual slaughter made it impossible for ultra-orthodox Jews to eat meat from animals slaughtered in accordance with the religious prescriptions they considered applicable’. However, this conclusion can be explained by the Court's finding that the religious practice and observance at issue in that case was the consumption of meat only from animals that had been ritually slaughtered and certified to comply with religious dietary laws, rather than any personal involvement in the ritual slaughter and certification process itself (see §§ 80 and 82). More relevantly, in cases involving restrictions placed by employers on an employee's ability to observe religious practice, the Commission held in several decisions that the possibility of resigning from the job and changing employment meant that there was no interference with the employee's religious freedom (see, for example, Konttinen v. Finland, Commission's decision of 3 December 1996, Decisions and Reports 87-A, p. 68; Stedman v. the United Kingdom, Commission's decision of 9 April 1997; compare Kosteski v.‘the former Yugoslav Republic of Macedonia’, no. 55170/00, § 39, 13 April 2006). However, the Court has not applied a similar approach in respect of employment sanctions imposed on individuals as a result of the exercise by them of other rights protected by the Convention, for example the right to respect for private life under Article 8; the right to freedom of expression under Article 10; or the negative right, not to join a trade union, under Article 11 (see, for example, Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 71, ECHR 1999-VI; Vogt v. Germany, 26 September 1995, § 44, Series A no. 323; Young, James and Webster v. the United Kingdom, 13 August 1981, §§ 54–55, Series A no. 44). Given the importance in a democratic society of freedom of religion, the Court considers that, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate.

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 (see Leyla Şahin, cited above, § 110; Bayatyan, cited above, §§ 121–122; Manoussakis, cited above, § 44). Where, as for the first and fourth applicants, the acts complained of were carried out by private companies and were not therefore directly attributable to the respondent State, the Court must consider the issues in terms of the positive obligation on the State authorities to secure the rights under Article 9 to those within their jurisdiction (see, mutatis mutandis, Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, §§ 58–61, ECHR 2011; see also Otto-Preminger-Institut v. Austria judgment of 25 November 1994, Series A no. 295, § 47). Whilst the boundary between the State's positive and negative obligations under the Convention does not lend itself to precise definition, the applicable principles are, nonetheless, similar. In both contexts regard must be had in particular to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, subject in any event to the margin of appreciation enjoyed by the State (see Palomo Sánchez and Others, cited above, § 62).

The Court recalls that Article 14 of the Convention has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. However, the application of Article 14 does not presuppose a breach of one or more of such provisions and to this extent it is autonomous. For Article 14 to become applicable it suffices that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols (see, for example, Thlimmenos v. Greece [GC], no. 34369/97, § 40, ECHR 2000-IV).

The Court has established in its case-law that only differences in treatment based on an identifiable characteristic, or ‘status’, are capable of amounting to discrimination within the meaning of Article 14 (Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010). ‘Religion’ is specifically mentioned in the text of Article 14 as a prohibited ground of discrimination.

Generally, in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations (Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008-). However, this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States, without an objective and reasonable justification, fail to treat differently persons whose situations are significantly different (Thlimmenos, cited above, § 44; see also D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007; Runkee and White v. the United Kingdom, nos. 42949/98 and 53134/99, § 35, 10 May 2007).

Such a difference of treatment between persons in relevantly similar positions — or a failure to treat differently persons in relevantly different situations — is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (Burden, cited above, § 60). The scope of this margin will vary according to the circumstances, the subject-matter and the background (Carson and Others, cited above, § 61).