What does it mean for employers?

Four British Christians complained that they suffered discrimination at work on the grounds of their religion or belief.  A member of British Airways' check-in staff (Eweida) and a nurse at the Royal Devon and Exeter hospital (Chaplin) brought their claims on the basis that they were refused the right to wear a visible cross.  A registrar (Ladele) and a counsellor for Relate (McFarlane) brought claims as a result of being disciplined and dismissed for refusing to comply with their employers' respective requirements to undertake civil partnerships and provide psycho-sexual counselling to same sex couples.  Having ultimately had no success in the UK courts against their employers the individuals took their cases to the European Court of Human Rights.  They argued that the UK government had failed to protect their rights to hold and manifest their religion (Article 9).

The decision announced yesterday saw only Mrs Eweida's claim upheld. The fact that three out of the four cases were unsuccessful shows that the approach taken by the UK courts is generally consistent with the European Convention of Human Rights. The exception to this is that, in Mrs Eweida's case, the courts did not strike the right balance when weighing up her rights against the requirements of her employer.

Some general principles when considering right to manifest religion

The Court's decision establishes some important general principles when considering the right of an employee to manifest their religion in the workplace:

  • An employee's right is subject to limitations which are prescribed by law and are necessary in a democratic society in the interests of public safety, protection of public order, health or morals, or for the protection of the rights and freedoms of others (Article 9 Limitations)
  • There is a wide margin of appreciation for States when considering whether interference with a human right is necessary in these circumstances
  • Although an employee's act must be "intimately linked" to their religion or belief, protection is not limited to generally recognised acts of worship or mandatory religious requirements. Mrs Eweida and Mrs Chaplin had the right to wear a cross even though it is not a requirement of Christianity
  • Just because an individual could resign and work elsewhere did not mean that their right was not violated. This will be considered when assessing proportionality and it was particularly relevant to Mr McFarlane who knew what he was taking on when he became a counsellor  

The Court had to consider whether a fair balance had been struck when weighing up the employees' rights and their employers' requirements. It found that it had not in relation to Mrs Eweida.  Whilst BA's desire to protect its corporate image was a legitimate aim, the UK courts had attached too much weight to it.  Her cross was discreet and there was no evidence that the wearing of turbans and hijabs by other employees had negatively impacted on the brand.  Also, it was not crucial to BA as it had subsequently relaxed its policy.

In contrast, the right balance had been struck in relation to Mrs Chaplin. She was not permitted to wear a visible cross around her neck because of health and safety concerns and these were more important. Other employees had to remove or adjust religious items in similar circumstances.  Mrs Chaplin had also refused alternatives offered (such as wearing the cross on a badge or concealing it).  We understand that Mrs Chaplin may look to appeal the decision.

Both Mr Ladele and Mr McFarlane also lost their claims.  Their employers had legitimate aims of promoting equal opportunities requiring employees to act in a way which did not discriminate against clients.  Differences in treatment based on sexual orientation require particularly serious reasons to be justifiable.  Neither their employers nor the UK courts had gone beyond the wide margin of appreciation given when striking a balance between the competing human rights.

What does this mean for employers in practice?

Public sector employers have to act in accordance with the European Convention on Human Rights. The decision is also relevant to private sector employers as UK courts will interpret discrimination legislation in accordance with it. Before restricting an employee's rights to manifest their religion at work all employers should generally consider the following:

  • There needs to be a sufficient connection between an act and belief but it does not need to be a mandatory or a generally recognised requirement 
  • Requests to accommodate religious beliefs must be carefully considered and any refusals must be reasonable
  • Before refusing, weigh up any competing interests remembering that the right to manifest one's religion will weigh heavily in the balance
  • Identify the business's aims and consider whether they are legitimate.  Are they in accordance with the Article 9 Limitations referred to above?
  • Is the refusal appropriate and necessary and a proportionate way to achieve the aim? 
  • Are there any feasible alternatives to refusal?
  • Is the restriction new or did the employee know about it when they started the job?
  • Are individuals in other religions similarly treated? 

Employers should also review their policies to ensure that they have enough discretion to potentially permit manifestations of religious beliefs.  For example, uniform policies should not have a blanket ban on religious items but should allow flexibility for requests to be considered.

We would be happy to discuss the issues raised in this case in more detail or assist you when reviewing any of your policies.  Please contact Helen Dallimore on 01392 685289 or email helen.dallimore@footanstey.com