EWEIDA AND OTHERS: A NEW ERA FOR ARTICLE 9?

Abstract

Eweida and others considered the claims of four religious individuals whose employers had rejected their requests for accommodation of their religious practices at work, and who had failed in their attempts to contest those decisions before English courts. However, as a judgment it speaks to a wider array of questions of principle, particularly the appropriate interpretation of Article 9 claims. The case provided the ECtHR with an opportunity to clarify a number of discrete doctrines and interpretative approaches within Article 9 jurisprudence, and the Court decided to use this occasion to elucidate the issues raised by the applicants' cases. These cases gave the Chamber the opportunity to clarify and redefine one of the most controversial areas of its jurisprudence. The Court's response to these challenges is to be welcomed. The Eweida and others 2 judgment provides a clear break with the Strasbourg institutions' traditional approach towards Article 9 of the EHCR, emphasizing the need to resolve claims at the justification rather than interference stage. The judgment raises many interesting questions in relation to Article 9, not least with regard to its interaction with the non-discrimination provisions of Article 14 and the doctrine of a State's positive obligations. However, this article will focus on the Court's approach to a number of key issues which have emerged in its jurisprudence under Article 9, specifically the distinction between religious acts and beliefs, the 'freecontract' doctrine and the 'specific-situation' rule. It will consider the context and consequences of its changing approach to these issues, whilst also scrutinizing the guidance given by the judgment to domestic authorities on how best to strike a 'fair balance' between competing interests in Article 9 cases. 1 The applicants were challenging the English courts' findings in a series of judgments relating to the rights of religious employees under Article 9 of the Convention and under the religious discrimination provisions of the English statutory discrimination scheme: Eweida v British Airways Plc [2010] EWCA Civ 80, [2010] ICR 890; Chaplin v Royal Devon & Exeter NHS Foundation Trust [2010] UKET 1702886/09; Ladele v Islington LBC [2009] EWCA Civ 1357, [2010] 1 WLR 955; McFarlane v Relate Avon Limited [2010] EWCA Civ 880, [2010] IRLR 872. 2 Eweida and others v UK [2013] ECHR 37.Throughout this paper the Strasbourg judgment will be referred to as Eweida and others, while the domestic Court of Appeal judgment involving Ms Eweida, Eweida v British Airways (n 1) will be referred to simply as Eweida.

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