Sun, 17 Mar 2013
By Fatim Kurji
Fatim Kurji considers the European Court of Human Rights’ verdict in the case of Eweida and Others v The United Kingdom  IRLR 231.
Managing the expression of religion or belief in the workplace can be a tricky task for employers, and especially so when such expression encroaches upon the beliefs and practices of others. The recent judgment in the case of Eweida et al unpicks the tangled web of employee beliefs and employer policies.
The four cases, heard jointly by the European Court of Human Rights, can be briefly summarised as follows:
(i) Ms Eweida
A practising Coptic Christian, Ms Eweida worked as a member of check in staff for British Airways. In 2004 BA introduced a new uniform with an open necked blouse. They also introduced guidelines which required items worn for religious reasons to be covered up by the uniform unless impossible. Between 2004 and 2006 Ms Eweida wore a cross at work which was concealed under her clothing. On 20th May 2006, she decided to wear the cross openly, as a sign of her commitment to her faith. When she ultimately refused to conceal the cross under her clothing, she was sent home without pay on 20th September 2006. She was offered an administrative role (which did not require her to wear a uniform) on the 23rd October 2006 but she declined it.
On 26th November 2006 BA commenced a review of its uniform policy which eventually led to the rules being changed with effect from 1st February 2007 such that religious symbols could be worn openly with consent. Ms Eweida returned to work on 3rd February 2007. BA refused to compensate her loss of pay from 20th September 2006 – 3rd February 2007 and Ms Eweida lodged a claim for indirect discrimination contrary to Regulation 3 of the Employment Equality (Religion and Belief) Regulations 2003 and a breach of her right to manifest her religion under Article 9 of the European Convention on Human Rights. The Employment Tribunal, Employment Appeal Tribunal, Court of Appeal and Supreme Court all rejected Ms Eweida’s claims on the basis that she had failed to establish that the uniform policy put Christians generally at a disadvantage and that BA’s policy was a proportionate means of achieving a legitimate aim.
(ii) Ms Chaplin
Also a practising Christian, Ms Chaplin had worn a cross on a chain since her confirmation in 1971. In June 2007 the hospital that she worked for introduced a V-neck tunic for its nurses. Her manager asked her, along with another Christian employee and two Sikh employees wearing kirpans, to remove their jewellery on health and safety grounds. The other employees consented but Ms Chaplin offered instead to wear her cross on a magnetic chain so that if pulled on by a patient, it would immediately break apart rather than cause an injury. Her employers did not find this satisfactory, as they were concerned that it could still come into contact with an open wound and create a risk. The employer suggested attaching the cross to her lanyard, but Ms Chaplin did not agree to this as lanyards were removed when performing close clinical duties. In November 2010 Ms Chaplin was moved to a non nursing position where she was able to freely wear her cross. However this was a temporary position, and it ceased to exist in July 2010.
Ms Chaplin brought a claim for both direct and indirect discrimination. Both claims were rejected, the latter on the grounds that there was no evidence that “persons” other than ms Chaplin had been put at a particular disadvantage, and that the hospital’s suggestion of wearing her cross on her lanyard was a proportionate means of achieving a legitimate aim.
(iii) Ms Ladele
Ms Ladele, also a Christian, firmly believes that same sex civil partnerships are contrary to God’s will. She was employed by a public authority as a registrar of births, marriages and deaths. Her employer subscribed to a ‘Dignity for All’ policy which prescribed equal treatment for all, and without discrimination. When the Civil Partnership Act 2004 was enacted, her employer decided to designate all existing registrars as civil partnership registrars too even though they were not obliged to do so. Initially Ms Ladele avoided performing civil partnership by swapping shifts with other colleagues, but in March 2006 two colleagues complained that her refusal to perform a civil partnership was discriminatory. Ms Ladele asked that her employers accommodate her religious beliefs. On 16th August 2007, after a disciplinary investigation, Ms Ladele was required by her employer to sign a new job description requiring her to sign the civil partnership register and associated administrative work. Ms Ladele brought a claim for direct and indirect discrimination on the grounds of religion and belief and harassment.
The Employment Tribunal upheld Ms Ladele’s complaints, holding that the Local Authority had ‘placed a greater value on the rights of the lesbian, gay, bisexual and transsexual community than it placed on the rights of [Ms Ladele] as one holding an orthodox Christian belief’. The Employment Appeal tribunal overturned the ET’s decision, holding that the local authority’s treatment of Ms Ladele was a proportionate means of achieving a legitimate aim, namely providing the registrar service on a non discriminatory basis. The Court of Appeal agreed with the EAT, and leave to appeal to the Supreme Court was refused.
(iv) Mr McFarlane
Mr McFarlane, also a practicing Christian, holds a deep and genuine belief that homosexual activity is sinful. He worked as a counsellor for Relate (a relationship counselling service) from May 2003 until March 2008. His initial concerns about counselling same-sex couples were discussed with his supervisor, and Mr McFarlane concluded that simply providing counselling services did not amount to an endorsement of homosexual activity. He provided such services to two same-sex couples without incident. However, after completing a post graduate diploma in psycho-sexual counselling, there was a concern that Mr McFarlane was not prepared to offer sexual counselling to same-sex couples, which Mr McFarlane confirmed. On 5th December 2007 other therapists complained to Relate that a fellow (unidentified) counsellor was not prepared to offer his services to same-sex couples. Mr McFarlane was asked to confirm in writing that he would be willing to provide those services. Mr McFarlane responded by stating that he had no concerns with counselling services but his view in relation to sexual therapy was still evolving.
After much to-ing and fro-ing, Mr McFarlane was dismissed for gross misconduct for refusing to comply with Relate’s policies to provide services in a non-discriminatory fashion. Mr McFarlane brought complaints of direct and indirect discrimination, unfair dismissal and wrongful dismissal. The Employment Tribunal dismissed his complaints for direct discrimination and unfair dismissal and concluded that in relation to his indirect discrimination claim although the requirement to comply with the Equal Opportunities Policy would place Christians at a disadvantage, it was a proportionate means of achieving a legitimate aim. The Employment Appeal Tribunal agreed with the ET, and permission to appeal to the Court of Appeal was refused.
In determining these applications, the ECHR looked closely at Article 9 of the Convention. It noted that freedom of thought, conscience and religion is one of the foundations of a democratic society. Under this Article, national states are under a positive obligation to protect freedom of religion, but since this right may have an impact on others, the drafters of the Convention qualified it by noting that any restriction must be prescribed by law and necessary in a democratic society in pursuit of one or more of the legitimate aims set out therein. This construction offers national states a wide margin of appreciation.
The ECHR rejected the notion that changing jobs was an appropriate solution where employees complained of interference with their Article 9 rights, suggesting instead that that the better approach was objective and reasonable justification: if a policy does not pursue a legitimate aim or was not a proportionate means of achieving that aim, interference with religious freedom would not be justified.
Application of ECHR ruling to specific cases
Applying this principle to the four cases, the ECHR concluded:
(i) Ms Eweida
Whilst BA’s decision to enforce a uniform code was a legitimate aim, the national courts had given this undue weight: Ms Eweida’s cross was discreet and did not detract from her professional image. The ECHR also noted that the subsequent amendment of the uniform policy demonstrated that the earlier prohibition ‘was not of crucial importance’. Taking this into account, it concluded that ‘the domestic authorities failed sufficiently to protect [Ms Eweida’s] right to manifest her religion, in breach of the positive obligation under Article 9.’ Ms Eweida claimed damages in the sum of £3,906.69 plus interest, representing her loss of earnings plus an award for injury to feelings in the sum of £30,000. The ECHR did not consider that her loss of earnings should be compensated, and awarded €2000 for injury to feelings.
(ii) Ms Chaplin
Although Ms Chaplin’s desire to visibly wear her cross was an important consideration which should be weighted heavily, the reason for asking her to remove it was, unlike in the case of Eweida, not cosmetic but due to real and serious health and safety concerns. The ECHR concluded that ‘the interference with her right to manifest her religion was necessary in a democratic society and that there was no violation of Article 9…’
(iii) Ms Ladele
As with the case of Chaplin, although the consequences for Ms Chaplin were serious, and the goal posts had been shifted after her employment had already started, the aim pursued by the local authority was to provide a service which was not merely effective in terms of practicality and efficiency, but also one which complied with the overarching policy of being ‘an employer and a public authority wholly committed to the promotion of equal opportunities and to requiring all its employees to act in a way which does not discriminate against others’. This was a legitimate aim, and its achievement was proportionate.
(iv) Mr McFarlane
As with the previous cases, the key consideration was the aim sought to be achieved by the employer: in this case the action was intended to secure the implementation of its policy for providing services without discrimination. The national courts had acted within their wide margin of appreciation when balancing the competing rights, and there had been no breach of Mr McFarlane’s Article 9 rights.
Further guidance by ECHR
In addition to the substantive rulings, the ECHR also clarified the meaning of ‘manifestation’ of religious belief, noting that the act must be ‘intimately’ linked to the religion. For example, in the cases of Eweida and Chaplin although there was no strict religious requirement to wear a cross in the Christian faith, to do so was intricately connected to their faith and this therefore satisfied the requirement for a ‘sufficiently close and direct nexus’
Key point summary
For employers the main points to be drawn from the ECHR’s ruling can be summarised as follows (full guidance can be found in the Equality and Human Rights Commission’s recently published guide for employers):
(i) Is the employee’s religion or belief genuine?
The requirement is that the belief is serious, genuine and sincerely held, but it may be a wasted adventure to dissect the belief in too much detail. What matters most is whether it can be linked to a faith (or the absence of a faith) and whether the employee genuinely believes in it.
(ii) What sort of requests might be made under Article 9?
Examples that employers should be aware of include:
- Manifestation cases: uniforms, religious symbols or clothing
- Absence: time off to perform religious activities
- Adaptation: adapting work duties to facilitate religious requirements/prohibitions
(iii) How should employers respond to requests?
It should go without saying that employers should ensure that all policies and practices do not unjustifiably discriminate against any particular employee or particular group of employees. Where requests are made, the initial response should be an attempt to facilitate it; where this is not possible, such refusal should be justifiable.
(iv) What factors affect justification?
- The rights of others and of wider policy implications
- Cost, disruption and health and safety concerns
- The disadvantage suffered by the employee if the request is refused
At the heart of these cases is the simple principle that while the right to manifest religious beliefs in the workplace is an important right, deserving of protection, where that right conflicts with other legitimate aims, an objective, justification led approach must be used to determine where exactly that tricky balance lies.
By Fatim Kurji