The European Court of Human Rights (ECtHR) handed down four very important decisions this week in regard to alleged religious discrimination in the workplace.
In Eweida & others v UK the Court held by five votes to two that the United Kingdom had failed to protect Ms Eweida’s rights under Article 9 (freedom of religion) of the European Convention on Human Rights (ECHR). Ms Eweida worked for BA as a member of the check-in staff. She had been prevented from wearing a small cross at work which BA said contravened their uniform code. Article 9 encompasses a right to manifest your religious beliefs. In previous decisions the Court has held that persons in similar situations could change jobs which would mean there was no interference to their religious freedom.
The Court held in this particular case that freedom of religion was essential in a democratic society and that the wearing of the cross was a manifestation of religious belief and that this had been insufficiently protected by the UK courts. The matter had been litigated through the English courts all the way to the Court of Appeal which had decided that the uniform code was legitimate and the ban proportionate in allowing BA to project a corporate image. However the ECtHR believed that this had been given too much weight by the English courts and pointed out that BA had not argued that staff wearing turbans or hijabs had a negative effect on BA’s corporate image. It was decided that Ms Eweida had not suffered any pecuniary loss (BA had offered her a non-uniformed post) but the Court awarded her €2,000 in damages for anxiety, frustration and distress.
In the other three cases the employees lost their claim. In Chaplin v UK, Ms Chaplin was also refused permission to wear a cross at work. She was nurse and importantly for the Court was the fact that the ban on her wearing this religious symbol was based on a clinical decision in regard to the prevention of infection.
In Ladele v UK, Ms Ladele was registrar of births marriages deaths but was dismissed from her employment as she refused to carry out civil partnerships for gay couples. In McFarlane v UK, Mr McFarlane was a marriage guidance counsellor who was dismissed for refusal to provide sexual therapy to gay clients. In these latter two cases the Court held that the employer requiring their employees not to discriminate against others was clearly legitimate. In such cases the national courts have a wide degree of discretion in striking a balance between competing ECHR rights. In Mr McFarlane’s case he had enrolled in a counselling program knowing that he would be required to give advice to gay couples and the Court was not convinced that his rights under Article 9 had been engaged at all. However, the most important issue was that the employer’s actions were intended to implement a policy of non-discriminatory service.
What lessons can be learned from these cases? In the case of manifestation of religious belief i.e. the wearing of any religious symbol the employer should make a proportionate decision. As the Court said religious freedom is a basic democratic right but the display of religious symbols is not an unfettered right. Ms Eweida’s cross was very small and discreet and with hindsight it is difficult to see why BA made such an issue out of it, especially as they allowed other manifestations of religious belief such as the wearing of turbans or hijabs.
It was always recognised that there were going to be conflicts between what are called protected characteristics, in these cases sexual orientation and religious belief and the courts will always have to conduct a balancing exercise between these competing rights. In the two cases regarding refusal by employees to provide services to gay people, the personal preferences/prejudices of the individual were always going to be trumped by the public policy of providing a non-discriminatory service.
If you are an employer or an employee that has been affected or may be affected by any of the issues in this article then please do not hesitate to contact our Employment Department on Tel: 020 7228 0017 or email: info@hanne.co.uk
