JOINT PARTLY DISSENTING OPINION OF JUDGES BRATZA AND DAVID THÓR BJÖRGVINSSON

1. While we share the view of the majority of the Chamber that, save in respect of one complaint of the second applicant, the applications are admissible as a whole and that there has been no violation of the Convention rights of the second, third and fourth applicants, we cannot agree that the rights of the first applicant under Article 9 of the Convention were violated in the particular circumstances of her case.

2. We endorse the general principles set out in the judgment governing the complaints under both Articles 9 and 14. We attach particular importance to three of these principles:

(a) The “manifestation” of religion or belief within the meaning of Article 9 is not limited to acts of worship or devotion which form part of the practice of a religion or belief “in a generally recognised form”. Provided a sufficiently close and direct nexus between the act and the underlying belief exists, there is no obligation on an applicant to establish that he or she acted in fulfilment of a duty mandated by the religion. In the present case, we have no doubt that the link between the visible wearing of a cross (being the principal symbol of Christianity) and the faith to which the applicant adheres is sufficiently strong for it to amount to a manifestation of her religious belief.

(b) A restriction on the manifestation of a religion or belief in the workplace may amount to an interference with Article 9 rights which requires to be justified even in a case where the employee voluntarily accepts an employment or role which does not accommodate the practice in question or where there are other means open to the individual to practise or observe his or her religion as, for instance, by resigning from the employment or taking a new position. As pointed out by the applicants, any other interpretation would not only be difficult to reconcile with the importance of religious belief but would be to treat Article 9 rights differently and of lesser importance than rights under Articles 8, 10 or 11, where the fact that an applicant can take steps to avoid a conflict between Convention rights and other requirements or restrictions imposed on him or her has been seen as going to the issue of justification and proportionality and not to the question of whether there has been an interference with the right in question. Insofar as earlier decisions of the Commission and the Court would suggest the contrary, we do not believe that they should be followed.

(c) Where, as in the case of the first and fourth applicants, the acts complained of were not directly attributable to the respondent State, the central question is not whether the interference was necessary in a democratic society or whether the State complied with its negative obligations flowing directly from Article 9, but whether the State was in breach of its positive obligations to secure Article 9 rights through its legal system. In determining whether or not the State complied with those obligations, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, including the interests of the employer. The Court has frequently made clear that, in striking the balance, the aims mentioned in the second paragraph of the Article may be of a certain relevance.

3. As is noted in the judgment, in common with a large number of Contracting States, the wearing of religious clothing and/or religious symbols in the workplace is not specifically regulated by law in the United Kingdom, either in the private or in the public sector. The first applicant brought domestic proceedings for damages for direct and indirect discrimination contrary to Regulation 3 of the 2003 Regulation. It was accepted by BA that the Employment Tribunal had no power to consider any separate or free-standing claim under Article 9 of the Convention. In the Court of Appeal, Article 9 was invoked but it was held that the Article did not advance the applicant’s case since, in the view of that court, there had been no interference with the applicant’s rights under that Article.

4. Despite this lack of specific protection, it does not in our view follow that in the particular circumstances of this case the applicant’s Article 9 rights were not adequately secured. While at the national level the examination of the applicant’s claim focused on the complaint of discrimination, it is clear that both the Employment Tribunal and the Court of Appeal examined in detail not only the legitimacy of the aim of the uniform code adopted by BA but the proportionality of the measures taken by the company in respect of the applicant. It was held unanimously that the aim was legitimate. The Employment Tribunal considered that the requirement was not proportionate since it failed to distinguish an item such as a religious symbol from an item worn purely frivolously or as a piece of cosmetic jewellery. The Court of Appeal, in reversing this finding, took a broader view of the matter, referring specifically to the particular features of the case which had been found established by the Employment Tribunal. These included the fact that the company’s dress code had for some years caused no known problems to any employee including the applicant herself, who from 2004 until May 2006 appears to have worn a cross concealed under her clothing without objection; the fact that the applicant had originally accepted the requirement of concealing the cross before reporting for work in breach of it, without waiting for the results of a formal grievance complaint which she had lodged with the company; the fact that the issue was conscientiously addressed by BA, which offered the applicant a temporary administrative position within the company which would have allowed her to wear the cross openly without loss of pay; the fact that the procedures within the company were properly followed in the light of the applicant’s complaint and that the dress code was reviewed, and within a matter of a few months relaxed, so as to permit the wearing of religious and other symbols; and the fact that, in consequence, the applicant was reinstated in her original post and able to continue openly to wear the cross from February 2007 onwards.

5. While a different view could doubtless be held – and was held by the Employment Tribunal itself – we do not find it possible to say that the Court of Appeal failed to carry out a fair balance of the competing interests or that their review of the factual circumstances of the case failed adequately to secure the applicant’s Article 9 rights. It is argued in the judgment that too much weight was given by the domestic court to BA’s wish to project a certain corporate image and too little to the applicant’s desire to manifest her religious belief and to be able to communicate that belief to others. We do not think that this does justice to the decision or reasoning of the Court of Appeal. Had the uniform code been stubbornly applied without any regard to the applicant’s repeated requests to be allowed to wear her cross outside her clothing or had her insistence on doing so resulted in her dismissal from employment, we could readily accept that the balance tipped strongly in favour of the applicant. But, as the facts summarised above show, that was not the case. The fact that the company was able ultimately to amend the uniform code to allow for the visible wearing of religious symbols may, as the judgment claims, demonstrate that the earlier prohibition was not “of crucial importance”. It does not, however, begin in our view to demonstrate that it was not of sufficient importance to maintain until the issue was thoroughly examined.

6. In view of our conclusion that Article 9, read alone, was not violated, we have found it necessary to examine separately the applicant’s complaint under Article 14 read in conjunction with Article 9.

7. In the domestic proceedings the applicant claimed direct discrimination and indirect discrimination under the 2003 Regulations. The claim of direct discrimination was rejected on the ground that, on the evidence, the applicant was treated identically to all possible comparators: to an adherent of any non-Christian faith or of no faith, displaying a cross for cosmetic and non-religious reasons; to an adherent to a faith other than Christianity, wearing a symbol of that faith visibly on a silver chain round the neck; and to an employee wearing a visible silver necklace without any form of Christian or other religious adornment. We see no ground for challenging this finding or for concluding that there was direct discrimination.

8. The principal claim before the Court appears to be one of indirect discrimination, the argument being that, because of her religion, the applicant was in a different situation from other employees who wished to wear jewellery and that she should have been accorded different treatment as far as the company’s uniform policy was concerned. The applicant does not directly criticise the 2003 Regulations which, on their face, appeared to provide in Regulation 3(1)(b) protection against any form of indirect discrimination. The applicant’s complaint relates rather to the way in which that Regulation was applied by the national tribunal and court, which held that the concept of indirect discrimination implied discrimination against a defined group and that the applicant had not produced evidence of an identifiable group disadvantage on the part of Christians but only disadvantage to herself, arising out of her wish to manifest her Christian faith in a particular way. The Court of Appeal noted that, of the uniformed work force of 30,000, none other than the applicant had ever made such a request or demand, much less refused to work if it was not met. The applicant argues that to require an applicant to show group disadvantage discriminates against the adherents of religions that are less prescriptive as regards the manner of dress or other outward manifestations of faith (such as Christianity) than other religions.

9. We see force in both arguments. While it is true that the purpose of indirect discrimination is to deal principally with the problem of group discrimination, it is also true that to require evidence of group disadvantage will often impose on an applicant an excessive burden of demonstrating that persons of the same religion or belief are put at a particular disadvantage. This may be especially difficult, as the applicant argues, in the case of a religion such as Christianity, which is not prescriptive and which allows for many different ways of manifesting commitment to the religion.

10. In the end, we have not found it necessary to resolve this question, since even if the measure had an unequal impact and could in principle give rise to indirect discrimination, there was in our view in the particular circumstances of the case an objective and reasonable justification for the measure, which was a proportionate means of achieving a legitimate aim. In this respect we are brought back to the specific factual circumstances already referred to under Article 9 read alone.

11. For these reasons we would find that the applicant’s rights under Article 9, read alone or in conjunction with Article 14, were not violated. While we would not accordingly have awarded compensation to the applicant, in deference to the view of the majority, we do not contest the award of costs and expenses.