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  is available here.
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:
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.
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.