By Michael Nadin - Associate Solicitor The Coronavirus Job Retention Scheme (CJRS) was originally due…
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The European Court of Human Rights (ECHR) has handed down its rulings in four domestic cases in which Christian employees claimed to have suffered discrimination at work on account of their religious beliefs (Eweida and Others v United Kingdom). The applicants claimed that the treatment they had suffered violated their rights under Articles 9 and 14 of the European Convention on Human Rights and that UK domestic law did not comply with the Convention. Two of the cases concerned women who were prevented from wearing a visible crucifix at work and two involved employees who were expected to perform work that they held to be inconsistent with their orthodox religious beliefs.
Article 9 of the Convention protects an individual’s right to freedom of thought, conscience and religion. This includes a right to manifest one’s beliefs, subject only to such limitations that are ‘in accordance with law’ and are ‘necessary in a democratic society’. Article 14 prohibits discrimination, including on the ground of religion.
The ECHR found that domestic anti-discrimination law does provide adequate protection to individuals who wish to assert their right to manifest their religion or belief. The right to do so is not absolute, but is subject to certain limitations, such as public safety considerations, health and safety interests and the protection of the rights and freedoms of others. Therefore, as regards wearing a crucifix at work, whilst banning a worker from doing so does interfere with the individual’s right to manifest his or her religious belief, whether or not the employer’s action is unlawful will depend on the individual circumstances.
The judges ruled in favour of Nadia Eweida, a British Airways (BA) employee who lost her case at the Court of Appeal that she had been the victim of religious discrimination after she was suspended from work for refusing to conceal her cross when asked to do so because she regarded it as an important visible expression of her faith.
Ms Eweida, who was working for BA as a member of its check-in staff when the issue first arose, was reinstated after BA changed its uniform policy to allow staff to display a symbol of their faith. However, she was of the view that the airline had been guilty of having different rules for different minority groups and pursued her case through the courts.
The ECHR ruled that although presenting a particular corporate image was a legitimate aim, the UK courts had erred in attaching too much importance to BA’s desire to do so. There was no evidence that the wearing of religious clothing, such as turbans, by adherents of other faiths had negatively affected BA’s brand. In this particular case, Ms Eweida’s rights under Article 9 had been breached.
The ECHR rejected the claim of Shirley Chaplin, however. Mrs Chaplin, a former nurse, had been asked not to wear her crucifix necklace by her employer, the Royal Devon and Exeter Foundation NHS Trust, for health and safety reasons. When she refused, she was moved to a desk job that did not involve working with patients. The ECHR held that although her right to manifest her religion had to be taken into consideration, it was outweighed by the need to ensure health and safety in a hospital ward. There was therefore no breach of her rights under Article 9.
Lillian Ladele, a former registrar who was disciplined by Islington Borough Council after she refused to carry out civil partnership ceremonies, lost her action, as did Gary McFarlane, a counsellor for Relate who was dismissed after he expressed concerns about the possibility of having to carry out relationship work involving same-sex sexual issues. Both employers operated equality and diversity policies which forbade discrimination on the ground of sexual orientation. The ECHR held that the desire on the part of the Council and Relate to provide a service that was free from discrimination was a legitimate aim. In such cases, national authorities benefit from ‘a wide margin of appreciation’ in respect of exactly how they achieve a balance between competing rights under the Convention. The scope of this margin will vary according to the circumstances, the subject matter and the background. In the Court’s view, in these two cases, the margin was not exceeded and the employees’ rights under Articles 9 and 14 of the Convention had not been violated.
Whether or not an employer’s action constitutes religious discrimination will depend on the individual facts of the case. What is clear is that employers wishing to impose a dress or uniform code should balance the business reasons for doing so against the rights of individual employees to manifest their religious belief.
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