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18 June 2013

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Religious Discrimination

Posted by: Russell Brown

A few days ago, Papiss Cisse apparently told Newcastle United that he would not wear next season’s new shirt which displays their new sponsor Wonga, an online lending company. Cisse, a practicing Muslim, cited Sharia law which states that an individual must not benefit from lending money to others or receiving money from others.

This is not the first time a player has refused to wear a shirt on religious grounds. The former Tottenham Hotspur forward Frédéric Kanouté was allowed to wear an unbranded shirt after he refused to wear the logo for the 888.com gambling website on religious grounds when he played for Seville. However, Cisse’s stance on not wearing the new shirt next season is commercially problematic for Newcastle and raises potential employment law issues, namely whether Newcastle’s decision could amount to an act of indirect religious discrimination.

Under the Equality Act 2010, it is unlawful for an employer to discriminate against an employee indirectly by applying a provision, criterion or practice (PCP) that disadvantages employees of a particular religion or belief without objective justification. Cisse could argue that Newcastle have applied a PCP upon all their squad players to wear a Wonga sponsored shirt irrespective of their religion or belief. However, this PCP puts Cisse at a disadvantage compared to the other players in that it breaches his religious beliefs, namely that it goes against Sharia law and that this potentially puts Muslims as a group at a disadvantage, which he could argue amounts to indirect religious discrimination.

Newcastle could potentially face the prospect of defending a tribunal claim brought forward by one of their very own footballers. However, there will be no indirect discrimination if the employer’s actions are objectively justified. To establish justification, an employer will need to show that there is a legitimate aim (a real business need) and that the PCP is proportionate to that aim (that is, it is reasonably necessary in order to achieve that aim, and there are no less discriminatory means available). This involves the tribunal performing a balancing act between the needs of the employer and the discriminatory effect of the PCP.

Newcastle could argue that they have a legitimate aim which is to generate the club’s revenue and that agreeing a deal with Wonga, in which their name is displayed on the club’s new shirt, is proportionate to their aim as they will receive a generous sum of money for doing so. Displaying a sponsor’s name across the front of a shirt is common practice in football and although displaying another sponsor on the new shirt may be less discriminatory to Cisse, if Wonga have offered Newcastle the best sponsorship deal they can obtain then it is likely that a tribunal would establish that the needs of Newcastle to generate revenue outweighs the discriminatory effect which the sponsored shirt has on Cisse. It is worth noting that Newcastle were previously sponsored by Virgin Money, a company which also lends money; as far as it is understood Cisse had no problem wearing last season’s shirt sponsored by Virgin which one could argue also breaches Sharia law principles. Furthermore, Newcastle could argue that they have two other practising Muslims in their squad, in Hatem Ben Arfa and Cheick Tioté, but so far neither of those players have refused to wear the new shirt next season and thus the new shirts are not discriminatory towards the club’s Muslim players.

It is also worth considering the case of Eweida and others v United Kingdom [2013] ECHR 37 in which the European Court of Human Rights considered four Christian employees’ complaints that UK law failed to protect their right under the European Convention on Human Rights to manifest their religious beliefs. Whilst the European Court of Human Rights rejected the three other employees’ complaints, it was held that the UK failed to protect Ms Eweida’s right, under Article 9 of the European Convention on Human Rights, to manifest her religious belief. Ms Eweida worked for British Airways (BA) as a member of its check-in staff. She wished to wear a plain silver cross, which would be visible over her uniform, as a personal expression of her Christian faith. BA refused to allow her to do so because this would be contrary to its uniform policy. Ms Eweida initially failed with her religious discrimination claim before domestic courts and tribunals. However, while BA’s wish to project a certain corporate image was legitimate, the European Court of Human Rights held that the Court of Appeal accorded it too much weight in deciding that the uniform policy was objectively justified and thus Ms Eweida’s right under Article 9 had been breached. Whilst Cisse could potentially cite the Eweida case and argue his right under Article 9 has been breached by Newcastle making him wear the new shirt next season, it is worth noting that Ms Eweida only received £1,600 in damages and £25,000 for her legal costs; it is therefore unlikely that Cisse, who reportedly earns £30,000 per week, would pursue a claim upon this basis.

It is unclear whether Cisse will bring a claim for indirect religious discrimination and it is more than likely that some sort of compromise will be reached between the club and player to avoid any more negative publicity. The irony of the situation is that Cisse is seeking an improved contract and the new sponsorship deal with Wonga will bring in significantly more money than their previous sponsorship deal with Virgin Money; that extra money could be used to improve Cisse’s current contractual terms. Some may argue that Cisse should not bite the hand which feeds him whilst others may argue an employee’s right not to be discriminated on religious grounds should always outweigh a business’ commercial need to generate revenue. Whichever view the reader may hold, the Cisse situation highlights just how common it is becoming for employees to want to wear certain items or refuse to wear certain items, for religious reasons, even if these wishes conflict with an employer’s dress code. It is therefore imperative that an employer is familiar with the possibility of employees bringing forward religious discrimination claims and how to successfully defend such claims.

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Russell is a Partner and Head of Glaisyers Employment Team. Russell is a specialist employment solicitor, providing commercially focused legal advice to both employers and employees. His practice covers all aspects of employment law including acting for clients involved in litigation in Employment Tribunals, the High Court and the Employment Appeals Tribunal. Russell is a frequent contributor to a wide range of employment law publications and is a regular speaker on the subject to both clients and the media. He is a member of the Employment Law Association.

Russell Brown - Partner

To discuss how glaiysers can assist you contact Russell Brown on [email protected] or via 0161 832 4666.

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