You will no doubt have read recently that the European Court of Human Rights (“the ECtHR”) has ruled on four conjoined cases where employees were appealing against the dismissal of their claims in the UK courts that they were discriminated against on grounds of their religious belief. One of the four appellants was successful at the ECtHR, the other three not so. What was the difference between her case and the others, and where does this leave employers?
Firstly, a recap on the four cases. Ms Eweida was a member of BA’s check-in staff and was prevented by BA’s uniform policy from wearing a visible cross to demonstrate her commitment to the Christian faith. The UK courts held this did not amount to religious discrimination, principally as there was no evidence that Christians as a whole had been placed at a particular disadvantage by BA’s uniform policy, and because there is no requirement of the Christian faith that a cross be worn (unlike, for example, turbans and Sikhism).
Ms Chaplin was a nurse with an NHS Trust who was not permitted to wear her crucifix. Her claim failed in the UK because it was held that, like Eweida, the prohibition did not place Christians at a particular disadvantage, and in any event the policy could be justified on health and safety grounds.
Mr McFarlane (a relationship counsellor with Relate) and Ms Ladele (a registrar with a local authority) were Christians who objected to counselling same-sex couples and carrying out civil partnerships respectively. Both were dismissed after they refused to budge. This is the classic ‘competing rights’ situation – the right of the employees to their religious belief, versus the rights of the service users not to be discriminated against on grounds of their sexual orientation. Both their claims failed in the UK. Their employers had a legitimate aim, being the provision of services in a non-discriminatory manner, and requiring Mr McFarlane and Ms Ladele to carry out the full range of services to all service users was proportionate.
All four employees appealed to the ECtHR, invoking Article 9 of the Convention, which protects a person’s right to freedom of religion, including the freedom to manifest their belief. However that freedom is not absolute; it can be qualified to the extent necessary in a democratic society. Mr McFarlane and Ms Ladele’s appeals to the ECtHR were rejected, as the ECtHR considered that the employers’ policies were aimed at ensuring service users had their rights protected, and in this ‘competing rights’ situation the UK courts had a margin of appreciation which they had not exceeded. In effect, the ECtHR found that the decision of the UK courts was not an unreasonable one where the courts had to find a balance.
Ms Chaplin also lost her appeal. While the ECtHR accepted that Article 9 was engaged, it considered that the health and safety justification was a particularly important factor which the employer was in the best position to judge. However, Ms Eweida was successful. While her case was, on the facts, similar to that of Ms Chaplin, BA had no health and safety justification. Also, the ECtHR seemed unimpressed that after the initial furore BA changed its policy to allow Ms Eweida to wear her cross visibly, which rather undermined BA’s argument that the policy was in place to protect its corporate image. In short, the ECtHR found that the UK courts had not struck a fair balance.
Cases like these are always difficult, and very much dependent on their facts. Indeed, Ms Eweida only won (and Ms Ladele only lost) on a split decision. But it will always be easier to justify potential discrimination on health and safety grounds than something more subjective, like a corporate image. However, there is an additional aspect which is important for employers here. Where previous claims for indirect discrimination have been brought, the UK tribunals and courts have required the policy or practice to disadvantage groups of individuals, rather than just one individual. This is why Ms Eweida was unsuccessful in the UK, because BA’s policy didn’t disadvantage Christians as a whole since not all Christians consider it a requirement of their faith to wear a cross visibly. But the ECtHR’s decision concentrated more on the individuality of religious freedom. This means that it is much more likely that UK courts and tribunals will not now require such an overall group disadvantage, which may make it more difficult for employers to refuse to accommodate the wearing of religious items.
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