The European Court of Human Rights (ECHR) has published an important decision concerning four employees who claimed they had suffered religious discrimination in the workplace, ruling in favour of only one employee.
The four employees (who were all practising Christians) had originally brought claims against their respective employers in the UK courts. Having failed in the UK courts, the employees took their claims to the ECHR, arguing that UK discrimination law had failed to protect their right to lawfully express their religious beliefs.
Ms Ewedia and Ms Chaplin
Ms Eweida worked for British Airways as a member of check-in staff. Ms Chaplin was an NHS nurse who worked on a geriatric ward. Both were required to wear a uniform and had previously worn a cross on a chain hidden under their uniform. Their uniforms were changed to an open-neck style, so their crosses became visible. This breached the uniform policies of their respective employers.
In Ms Ewedia’s case, the ECHR held that British Airways’ aim to protect a certain image was legitimate. However, it considered that the UK courts had placed too much weight on this aim. Ms Eweida’s cross was discreet, and there was no evidence that other authorised items of clothing such as turbans and hijabs had any negative impact on British Airways’ brand. In addition, it was clearly not that important to British Airways as they had subsequently amended their uniform policy to allow religious jewellery to be displayed after the case caught the media’s attention. The ECHR therefore held that Ms Ewedia’s rights had been infringed by the UK courts when they dismissed her claim.
In Ms Chaplain’s case, the ECHR agreed that the NHS’s refusal to allow Ms Chaplain to wear a cross while performing nursing duties was an interference with her freedom to express her religious beliefs, but ultimately the reason for the restriction was to protect the health and safety of nurses and patients. There was a risk that a patient might seize and pull the chain, or that the cross might swing forward and come into contact with an open wound. The ECHR held that the protection of health and safety on a hospital ward was more important than Ms Chaplain’s right to express her religious beliefs.
Mr McFarlane and Ms Ladele
Mr McFarlane was a counsellor for Relate who was required to provide sexual counselling to same sex couples. Ms Ladele was a registrar who was required to perform civil partnership ceremonies. Neither was willing to provide these services as they believed same sex relationships were contrary to God’s will. Both employers had equality and diversity policies in place and complaints had been raised by colleagues regarding the employees’ refusal to perform their duties.
Both claims were dismissed. The ECHR held that the employers’ aims to promote equal opportunities and to avoid sexual orientation discrimination were justified.
Comment
It is important for employers to analyse the aim they are trying to achieve and whether they can legitimately argue that interfering with an individual’s right to express their religious beliefs is a proportionate way of achieving that aim. Each case will invariably turn on its own facts and will often involve a balancing exercise. Employers should consider all the circumstances surrounding an individual case and how any particular action may affect other employees and clients the employee deals with on a frequent basis. Depending on the circumstances, health and safety issues or other competing rights may be an appropriate reason to refuse an employee’s request. Ms Ewedia’s case shows that although corporate image is a legitimate aim, it is not as critical as an individual’s right to express their religious beliefs. Employers who seek to restrict what their employees wear to work in order to protect a certain corporate image should carefully consider reasonable requests from employees who wish to wear religious clothing or jewellery.