January 2013 case update

case updatesReligious rights – are staff protected?

Summary: Does UK law adequately sufficiently protect employees’ right to manifest their religious beliefs in the workplace? Not in all situations, says the European Court of Human Rights (ECtHR).

The case, Eweida and others v United Kingdom [2013] is available here.

Facts:

This case concerned four claims of religious discrimination in the workplace. Of those four claims, the ECtHR found that only one individual, Ms Eweida, had suffered discrimination contrary to Article 9 of the European Convention of Human Rights (“ECHR”). The Court found that the rights of the three other Christians, Ms Chaplin, Mr McFarlane and Ms Ladele, were not violated by their employer’s actions.

Article 9 of the ECHR protects an individual’s right to freedom of religion, and includes the freedom to manifest religious belief.

We set out the facts of the employees’ claims below:

  1. Ms Eweida, a practising Christian, worked as a check-in employee for British Airways (BA). BA’s uniform policy prohibited the wearing of religious insignia and clothing for staff with customer-facing roles, with some limited exceptions for Muslim and Sikh staff. This was in order to project a certain corporate image. Ms Eweida started to wear a visible cross at work, in breach of the policy, and was eventually sent home for her refusal to comply with it. BA subsequently offered her an alternative administrative role, where the wearing of the cross would be permitted. Ms Eweida refused, and remained on unpaid leave. BA later revised its uniform policy, and Ms Eweida returned to work but was not compensated for the period she had spent on unpaid leave. She brought a claim for compensation for indirect religious discrimination against BA on the basis that its uniform policy had imposed a ‘provision, criterion, or practice’ which had adversely affected her right to freedom of religious expression.The UK courts, including the Court of Appeal, rejected Ms Eweida’s claim. This was largely on the basis that the wearing of a cross was not a mandatory requirement of the Christian faith, but rather Ms Eweida’s personal choice: therefore BA’s uniform policy did not put Christians in general at a disadvantage.
  2. Ms Chaplin was also a practicing Christian who was employed as a nurse on a geriatric ward by a hospital trust. The hospital had a policy of preventing necklaces to be worn by staff to reduce the risk of injury when handling patients. Ms Chaplin was instructed to stop wearing a necklace with a cross. When she refused, she was moved to a non-nursing position. Ms Chaplin brought Tribunal proceedings.The UK courts, including the Court of Appeal, rejected Ms Chaplin’s indirect discrimination claim for two reasons: first, she had failed to establish that the Trust’s uniform policy placed persons of her religion at a particular disadvantage; second, the policy could be objectively justified. It pursued the important legitimate aim of protecting the health and safety of staff and patients and, given that the employer had undertaken reasonable dialogue with Ms Chaplin in an attempt to resolve the issue (without success), was a proportionate means of achieving that aim.
  3. Ms Ladele and Mr McFarlane alleged indirect discrimination in the face of disciplinary sanctions arising as a result of their refusal to carry out all requirements of their respective roles on religious grounds. Ms Ladele declined, as a Registrar of Births, Deaths and Marriages, to carry out civil partnership ceremonies on the grounds this would be seen to condone homosexual relationships which she believed to be incompatible with her Christian beliefs. Likewise, Mr Macfarlane refused to provide counselling services to same-sex couples. Both employees contended that their employer acted in a discriminatory fashion in failing to accommodate fundamental principles of their religion in their roles.In each case, the UK courts found that the employers’ actions were not based upon the employees’ religion or beliefs but on their refusal to carry out the duties associated with their roles. Requiring the employees to do so was justified, not only to ensure equality and diversity in the employer’s operations but to avoid sexual orientation discrimination in the provision of a public service.

The four employees then brought complaints to the ECtHR against the UK. They argued, with reference to Article 9 and/or 14 of the ECHR, that the UK (whether by way of the Religion or Belief Regulations or otherwise) had failed adequately to protect their ECHR right to manifest their religion.

ECtHR decision: In respect of Ms Eweida’s claim it held that the UK courts had breached their obligations under Article 9 of the ECHR in failing to protect her rights. The courts had given too much weight to BA’s desire to project a certain corporate image. Ms Eweida’s cross was discreet, and there was no evidence that the wearing of items such as turbans and hijabs, by other employees, had any negative impact on BA’s brand.

However, the ECtHR did not uphold the other employees’ claims. Ms Chaplin’s case against the NHS could be differentiated by the ECtHR on health and safety grounds, namely the ability of patients to grab the chain bearing the cross, and the possibility of both objects coming into contact with open wounds. These considerations were of greater magnitude than the corporate image aim put forward by BA. Accordingly there was no violation of Ms Chaplin’s rights under the ECHR arising from the NHS policy forbidding nurses from wearing necklaces at work.

In relation to Ms Ladele and Mr McFarlane, the ECtHR held that the aims of the employers of promoting equal opportunities and providing a service without discrimination were legitimate. It held that differences in treatment based on sexual orientation require particularly serious reasons by way of justification, and UK courts had not exceeded wide the margin of appreciation open to them in determining where to strike the balance between the employees’ rights to manifest their religious beliefs and their employers’ interest in securing the rights of others.

Implications:

The ECtHR’s decision is likely to have a significant impact on UK law concerning religion or belief in the workplace. It confirms that Article 9 of the ECHR may be relied on by individuals in the workplace. Earlier ECHR case law had questioned this, given that workers were not compelled to do any job which conflicted with their beliefs (i.e. they could always resign).

Further, the ECHR found in Eweida that it is not necessary for a religious manifestation to be a mandatory requirement of an individual’s faith in order to be protected. It was enough that Ms Eweida wished to wear the cross as a matter of personal choice. This undermines the current UK discrimination law whereby the courts are required to look at whether a group of employees (such as Christian employees) in general are put at a disadvantage.

However, despite finding against the UK courts in Eweida, the decision of the ECtHR in respect of the other three employees should provide comfort to employers. These decisions show that there is no absolute right to express a manifestation of religion, and although UK courts and the ECHR will explore and take cases seriously, the extent to which limitations can occur will be decided on a case by case basis.

In any event it may be a good idea for employers to (i) check uniform policies to ensure that there is a sound reason why the wearing of religious insignia or clothing may not be worn and ii) ensure that requests by employees for relief from certain duties/work patterns on religious grounds are given serious consideration, and that a refusal of them is for a legitimate aim and proportionate when weighed against the employee’s rights.