A cross to bear – religious belief discrimination and human rights

A media frenzy took place this month over the decision of the European Court of Human Rights (ECtHR) in the case of Eweida and ors v UK (2013). Headlines such as “Cross ban did infringe worker’s rights” and “Nadia Eweida wins religious cross battle with her employers” grabbed the attention and perhaps made some employers hastily revisit their workplace dress codes. The media were less enthusiastic about the three other claimants (Shirley Chaplin, Lillian Ladele and Gary McFarlane) in related cases, who did not obtain a decision in their favour from the ECtHR.

All four claimants were placed together in this case, as their individual matters concerned similar complaints in regard to alleged breaches of Article 9 (protection of freedom of religion) of the European Convention on Human Rights. All had unsuccessfully raised claims for indirect and direct discrimination in the UK Courts.

For a quick recap on the law in this area, direct discrimination occurs where “because of a protected characteristic, A treats B less favourably than A treats or would treat others.” Protected characteristics include religion or philosophical beliefs. Indirect discrimination occurs when there are acts, decisions or policies put in place which are not intended to treat anyone less favourably, but which in practice have the effect of disadvantaging a group of people with a particular protected characteristic. There is a defence to indirect discrimination claims where the act, decision or policy can be objectively justified.

In regard to the particular claims of the four individuals:

• Ms Eweida was a check-in desk employee for British Airways. She complained that her Article 9 rights had been breached following the UK Court of Appeal’s rejection of her claim for indirect discrimination which she had commenced following her employer’s refusal to allow her to wear a visible cross at work in accordance with their uniform policy. The Court of Appeal rejected the appeal by Ms Eweida as they held in the main that British Airways had a legitimate aim to protect its corporate image.
• Ms Chaplin was a nurse who also brought and failed in a claim for direct and indirect discrimination in relation to a uniform policy that prevented her wearing a cross above her uniform at work. The Employment Tribunal held that there was no direct discrimination since the hospital’s stance was based on health and safety rather than religious grounds. The claim for indirect discrimination was also not upheld as no person other than the applicant had been put at particular disadvantage. They also felt the hospital’s response to her request to wear a cross had been proportionate. Ms Chaplin was advised not to appeal the decision given the Court of Appeal judgment in the Eweida case.
• Ms Ladele was a registrar who was dismissed from her job for refusing to conduct civil partnership ceremonies for gay couples. She brought claims for direct and indirect discrimination on grounds of religion or belief, and harassment. Initially, her claims were upheld in the Employment Tribunal, but this decision was reversed by the Employment Appeal Tribunal and Ms Ladele’s appeal to the Court of Appeal was also unsuccessful.
• Mr McFarlane was a relationship counsellor for Relate who was dismissed for being unwilling to provide sexual therapy to same sex couples. Mr McFarlane brought claims (amongst others) for direct and indirect discrimination. The Employment Tribunal held that he had not been dismissed because of his faith, but because it was believed that he would not comply with Relate’s policies. It was also held that the aim of Relate’s policy was the provision of a full range of counselling services to all sections of the community, regardless of sexual orientation, which was legitimate. The Employment Appeal Tribunal upheld this decision and the Court of Appeal refused a further appeal as it considered that the appeal had no prospect of success following the judgment in the Ladele case.

The ECtHR’s decision

The ECtHR upheld Nadia Eweida’s compliant because they felt the UK Court of Appeal had given too much weight to the legitimate aim given by British Airways. This was that it had a uniform policy to protect its corporate image. The ECtHR said that there was no evidence that other employees wearing authorised religious clothing, such as turbans, had any negative impact on British Airways’ brand or image. In addition to this, British Airways had in fact backtracked on their policy that no visible religious symbols could be worn, demonstrating themselves that it was not of crucial importance.

The ECtHR did not uphold Ms Chaplin’s complaint because they agreed that the legitimate aim was proportionally far more important than the reason given in the Eweida case, this being the clinical safety of both herself and patients. The hospital specifically cited examples of the necklace causing injury if a patient pulled on it or it could come into contact with open wounds.

In regard to Ms Ladele and Mr McFarlane, it was held that the employer’s aim of requiring all its employees to act in a way which does not discriminate against others and to provide services to all regardless of sexual orientation was legitimate and that the employer’s actions were proportionate as a means of achieving that aim.

So employers may ask what next? It may be some relief to know that the ECtHR found no significant inconsistency between UK law and the European Convention on Human Rights. They simply emphasised that employers must strike a fair balance between the interests of religious beliefs and requirements in the workplace. Reasonable requests from employees to wear religious symbols and clothing should be considered and balanced decisions made in regard to whether the request is allowed or refused. If requests are refused, there should be reasons given and these must be proportionate. Where dress codes are contemplated, employers should put sensible policies in place and consider whether to permit the wearing of religious symbols and clothing from the outset.

It also seems from the decisions in relation to Ms Ladele and Mr McFarlane that employers are not generally expected to compromise their equal opportunities policies where individuals do not agree with aspects of that policy due to their own religious beliefs.

If you need advice or guidance on discrimination law, please call us on 01243 836840 for a no obligation chat or email us at [email protected].

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.