Does UK law adequately protect employees religious beliefs from discrimination?
In Eweida & Others v UK,
the European Court of Human Rights (ECtHR) held that in most
situations it does.
In different cases, four
employee's brought claims against their employer's under the
Religion or Belief Regulations. They claimed that their
employer's had failed to protect their religious beliefs, referring
to Article 9 and/or 14 of the European Convention on Human
Rights.
Article 9 provides "Everyone
has the right to freedom of thought, conscience and religion; this
right includes freedom to change his religion or belief and
freedom, either alone or in community with others and in public or
private, to manifest his religion or belief, in worship, teaching,
practice and observance."
Mrs Eweida worked for British
Airways (BA) as part of the check in team. She wished to
express her religious beliefs by wearing a silver cross necklace
around her neck. BA refused to allow her to wear the cross,
arguing that it was contrary to its uniform policy. Mrs
Eweida claimed indirect discrimination; however, failed on the
basis of not being able to show that any other Christians had felt
disadvantaged due to BA's policy. Furthermore, exposing a
cross was not a requirement of the Christian faith, but rather a
personal choice.
Mrs Chaplin was a clinical
nurse who wished to wear a crucifix on a necklace as expression of
her beliefs. As with the Eweida case, the crucifix did not
comply with the employer's uniform policy. Mrs Chaplin also
brought a claim based on indirect discrimination and like Mrs
Eweida, she too failed in proving that the uniform policy placed
Christian's, as a whole, at a disadvantage. In addition, the
policy could be objectively justified on health and safety
grounds. It was classed as a proportionate means of achieving
a legitimate aim.
Ms Ladele, a registrar and a
Christian, believed that same-sex partnerships are "contrary to
God's law". Because of her beliefs, she refused to carry out
the registration of civil partnerships when the Civil Partnership
Act 2004 came into force. She was dismissed for gross
misconduct on the basis of being discriminatory towards the gay
community and for breaching the Council's "Dignity for All" policy,
which had fundamental human rights, equality and diversity
implications. Bringing claims for religious discrimination,
she initially succeeded before a tribunal, only to subsequently
fail in front of both the EAT and the Court of Appeal. Ms
Ladele's claim failed on the basis that as a public authority
employer, it was committed to promoting equal opportunities,
including the rights of the gay community.
Mr McFarlane was a sex
counsellor dismissed for refusing to counsel same-sex
couples. He brought claims based on indirect discrimination,
which failed both in the tribunal and the EAT. It was found
that the actions of Mr McFarlane's employer could be objectively
justified as a proportionate means of achieving a legitimate
aim. The legitimate aim was to provide a full range of
counselling services to all sections of the community, regardless
of sexual orientation.
Only Mrs Eweida's claim
succeeded in the ECtHR. This was on the basis that too much
weight had been placed on BA's corporate image and Mrs Eweida's
cross was discrete, bearing no real negative implications to BA's
brand. Mrs Chaplin's claim failed on the grounds that the
health and safety policy on a hospital ward was more important than
the expression of religious beliefs, thus the interference was
necessary in a democratic society. In relation to Ms Ladele
and Mr McFarlane, treatment based on sexual orientation requires
particularly serious reasons for justification in order to exceed
the "margin of appreciation". In both instances, the margin
was not exceeded.
The judgement emphasises that
cases involving the justification of indirect discrimination will
remain to be very much dependent on the individual facts of each
case. However, employers are now under an obligation to
accommodate reasonable requests regarding uniforms.
Posted on:
30/01/2013
This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.
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