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22 January 2013

European ruling on religious discrimination

The European Court of Human Rights has handed down its judgment in four conjoined cases brought by Christian employees, who each claimed that they had been discriminated against by their employers on the grounds of their religion. 

These cases involved four Christian employees: two had pursued claims for religious discrimination on the grounds that their employer’s dress code did not allow them to openly display a necklace with a cross (Eweida and Chaplin); the other two (Ladele and Macfarlane, a Registrar and a relationship counsellor) objected to a requirement to carry out duties which, in their view condoned homosexual activities and were inconsistent with their religious beliefs.

The employees’ claims were all eventually dismissed by the employment tribunals and courts in the UK, so they each brought claims at the European Court of Human Rights (ECHR) against the UK Government, on the grounds that domestic law had failed to adequately protect their right to manifest their religion.  They claimed a breach of their rights under Article 9 (freedom of religion) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights.

The ECHR has upheld the claim brought by Eweida, but has dismissed the claims of the other three employees.

Eweida and Chaplin

In relation to Eweida and Chaplin, the Court agreed that there had been an interference with both women’s right to manifest their religion, by preventing them from wearing crosses visibly at work.

In Eweida’s case, the Court decided that the UK courts had not struck a fair balance between her desire to manifest her religious belief and to communicate that belief to others on the one hand, and her employer’s (British Airways) wish to project a certain corporate image.  The Court noted that other employees had previously been authorised to wear items of religious clothing (such as turbans and hijabs) without any negative impact on BA’s brand or image.  It also pointed to the fact that BA had amended its uniform code to allow for the visible wearing of religious symbolic jewellery, which the Court considered to show that the earlier prohibition had not been of crucial importance.

The Court therefore concluded, by a majority, that the domestic authorities (the Court of Appeal) had failed to sufficiently protect Eweida’s right to manifest her religion, in breach of Article 9. 

In Chaplin’s case, however, the Court considered the reason for asking her to remove her cross, namely the protection of health and safety on a hospital ward (she was a nurse), to be inherently of much greater importance.  The Court concluded that requiring Chaplin to remove her cross was not disproportionate and that the interference with her freedom to manifest her religion had been necessary in a democratic society.

Ladele and McFarlane

Ladele and McFarlane’s cases involved the interesting issue of when one set of protected rights (religious belief) conflicted with another (sexual orientation).

The Court considered that the policies of their employers (the promotion of equal opportunities and requiring employees to act in a non-discriminatory way), had the legitimate aim of securing the rights of others, such as same-sex couples, which were also protected under the Convention.  The Court was satisfied that the right balance had been struck between the employer’s right to secure the rights of others and the applicants’ right to manifest their religion.  The applicants’ claims were therefore dismissed.

Comment

This decision does not mean that employers will have to allow the visible display of religious symbols in every case, but it does mean that employers will have to demonstrate legitimate and justifiable reasons for imposing a dress code that prevents such a display.  Eweida’s employer in this case had eventually decided, following consultation with its employees, to amend its dress code to allow religious symbols to be displayed.  Rather ironically, this was used as evidence to support the Court’s view that imposing the restriction on any jewellery was not necessary to maintain BA’s corporate image.

Employers who have compulsory dress codes in place should ensure that any requests for flexibility, particularly for religious reasons, are given due consideration on an individual basis and are dealt with sensitively.

It is unlikely that this decision will result in any immediate changes to existing equalities legislation in the UK.  The Court, in upholding Eweida’s claim, did not consider that the lack of specific protection under UK law in itself meant that her right to manifest her religion by wearing a religious symbol at work was insufficiently protected.  Instead it was the application of the law by the Court of Appeal that had struck the wrong balance and was therefore found to be in breach of her rights.

The Equality and Human Rights Commission has announced that in view of this judgment it will be issuing new guidance for employers on the issue of religious freedom in the workplace.

A copy of the ECHJ judgment is available here.

For any employment enquiries please contact the Steeles Law employment team on employment@steeleslaw.co.uk or 01603 598000.