Religious Discrimination

There have been a number of recent decisions addressing religious discrimination and where faith sits in the work place.  In our Christmas newsletter we reported on the case of Smith v Trafford Housing Trust which noted a Christian employee was free to comment on Facebook about his views on gay marriage and that his resulting dismissal was unfair.  This year, the long awaited deliberations of the European Court of Human Rights in Ladele and McFarlane v United Kingdom/Eweida and Chaplin v United Kingdom have finally been published.  The case of Mba v London Borough of Merton addresses issues around Christians and Sunday working.

Much has already been written and said about the claims brought by Eweida, Chaplin, Ladele and McFarlane against the UK Government in the European Court of Human Rights (ECHR).  From a legal point of view the issue was whether UK law provides sufficient protection against discrimination for employees who wish to manifest their religious beliefs in the workplace?

The findings of the ECHR are that it did in one matter but not in the others.  The claim which succeeded concerned Ms Eweida.  She worked for British Airways and wore a visible cross, in breach of the BA uniform policy.  The claims that failed were Chaplin (a geriatric nurse who was not permitted to wear a cross on a necklace whilst in uniform), Ms Ladele (a registrar, whose employer required her to perform civil partnership ceremonies) and Mr McFarlane (a Relate counsellor unwilling to provide sexual counselling for same sex couples).

In essence the ECHR found that Article 9 of the European Convention on Human Rights provides that there is a right to freedom of thought, conscience and religion, but it is a qualified right to manifest one’s religion or beliefs.  The right is subject to ‘such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health, or morals, or for the protection of the rights and freedoms of others’.  This explains the reason why Ewieda was successful but not Chaplin – it was said in Chaplin that health and safety concerns outweighed her right to manifest her faith by wearing a cross.

The ECHR noted that where an individual complains of a restriction on freedom of religion in the workplace, the employer must consider moving jobs to remove interference with the right when considering whether or not the restriction was proportionate.

The ECHR found that the UK courts placed too much weight to British Airways’ desire to project a certain image. Ms Eweida’s cross was discreet, and there was no evidence that the wearing of items such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand.

In respect of Ladele and McFarlane, the ECHR has previously held that differences in treatment based on sexual orientation require particularly serious reasons by way of justification.  Whilst the ECHR commented that national authorities have a ‘wide margin of appreciation’ when it comes to striking a balance between competing Convention rights, the margin of appreciation was not exceeded in either the Ladele or McFarlane case.  It is understood Ladele, McFarlane and Chaplin will be appealing to the ECHR’s Grand Chamber.  In the meantime, the ECHR’s findings highlight that the justification of indirect discrimination and considerations of proportionality will continue to be a highly fact specific exercise (although employers will now be required, in many cases, to accommodate reasonable requests in respect of uniform).

In light of the above cases it will be interesting to see if this case runs out of steam.  This case (in the EAT) concerned a Christian who did not want to work on Sundays due to her faith.  The EAT upheld an employment tribunal’s decision that a requirement for all full-time children’s care worker to work on Sundays, in rotation, did not indirectly discriminate against a Christian.  The EAT found that its conclusion that the requirement was a proportionate means of achieving a legitimate aim, could not be said to be perverse.

EHRC Guidance

Following the above cases the ECHR has published guidance on Religion and Belief in the workplace.  The guidance gives examples of requests employees may make to their faith in accommodating and guidance on how employers should deal with such requests.

For more information, help or advice please contact Tim Davies on 0191 211 7927 or email [email protected].