‘Religious Discrimination’ feature by Russell Brown, partner and head of employment at Glaisyers Solicitors in Manchester for Julia Baskerville at The Messenger
Last month, the news agenda was dominated by the decision of the European Court of Justice (ECJ) in the British case of ‘Eweida and others v UK’. The case dealt with the difficult issue of employees’ freedom to display their religious beliefs in the workplace and has important implications for employers.
Employees have the right (under Article 9 of the European Convention on Human Rights) to freedom of religion and, as part of this, are free to exercise their religious beliefs within the workplace. However, in some situations it is possible for an employer to impose restrictions on the right to exercise those beliefs, for example to protect public health or the rights and freedoms of other people.
In this case, Mrs Eweida, a Catholic, sought to wear a silver cross to work but was refused by her employer on the basis it breached their uniform policy. Mrs Eweida felt the decision discriminated against her on the grounds of her religious beliefs and therefore issued proceedings in the tribunal.
The case had been making its way through the courts for some time and, following a number of unsuccessful hearings in the UK, Mrs Eweida took her fight to the ECJ. The ECJ confirmed that her employer’s decision to refuse her request to wear a cross was discriminatory and could not be justified.
Mrs Eweida worked as a check-in assistant for British Airways (BA). She chose to wear a plain silver cross to work which would be visible over her uniform.
BA refused however on the basis it would contravene its uniform policy which prohibited non-uniform items to be visible, except for certain religious items (e.g. skull cap, turban). As a result, Mrs Eweida was sent home and did not return until five months later, when BA amended its uniform policy to allow her to display her cross.
Mrs Eweida felt the decision not to allow her to remain in work whilst wearing her cross was discriminatory on the grounds of her religious beliefs and therefore issued proceedings in the tribunal.
The tribunal rejected her claim. It believed that her decision to wear a cross was not a religious requirement but a personal decision and therefore BA’s uniform policy was not discriminatory as it did not disadvantage Christians. Mrs Eweida appealed to the Employment Appeal Tribunal and Court of Appeal but was unsuccessful and therefore made an application to the ECJ.
In considering Mrs Eweida’s case the ECJ considered the following three UK cases:
- Chaplin v UK – Ms Chaplin was a nurse who sought to wear a crucifix on a necklace to work. Her employer refused to allow her to wear the crucifix however as it breached its uniform policy and presented a potential risk to the health and safety of staff and patients on the ward.
- Ladele v UK – Ms Ladele worked as a registrar whose employer performed civil partnership ceremonies. Ms Ladele refused to perform the ceremonies however on the basis of her Christian beliefs and as a result was dismissed by her employer.
- McFarlane v UK – Mr McFarlane worked as a Counsellor for Relate and was dismissed following his refusal to provide sexual counselling services to same sex couples as it offended his Christian beliefs.
The ECJ confirmed that BA’s decision not to allow Mrs Ewedia to attend work whilst wearing her cross did interfere with her right to exercise her religious beliefs.
Having done so, it went on to consider whether the UK courts had struck a fair balance between her rights and those of others; it concluded they had not. The court was satisfied that BA’s uniform policy and desire to achieve brand uniformity was a legitimate aim but felt the UK courts had attached too much weight to it. In particular, there was no evidence that wearing of authorised religious clothing, like skull caps or turbans, damaged BA’s corporate image and, the fact it subsequently amended its uniform code to allow for the visible wearing of religious symbolic jewellery following Mrs Eweida’s complaint, demonstrated that the earlier prohibition was not of crucial importance.
Interestingly the three other cases were all dismissed by the ECJ. In relation to Ms Chaplin, the court considered that her employer’s reasons for asking her to remove her cross were more important than her desire to wear it and therefore there had been no breach of her right to freedom of religion. With regard to Ms Ladele and Mr McFarlane, the court rejected their claims on the basis that both employers had been seeking to provide a service free from discrimination which justified the restrictions imposed on their freedom to exercise their religious beliefs.
What does it mean for employers?
The ECJ’s decision has underlined the importance of freedom of religion within the workplace and clarifies that concerns over brand image or identity will not, alone, overrule an individual’s right to express those religious beliefs.
The court’s decision on Ms Chaplin, Ms Ladele and Mr McFarlane’s claims however demonstrates that it is still possible to impose restrictions on this right where it conflicts with the rights of others.
The decision also serves as a useful reminder of the importance of having a carefully drafted dress code which strikes a balance between corporate consistency, the needs of individuals and the accommodation of diversity. Any requests to depart from a dress code for religious reasons need to be considered carefully and employers should meet with employees to discuss their requests.