The judgment which was yesterday handed down by the European Court of Human Rights (“ECtHR”) in the combined appeals of Ladele and McFarlane v the United Kingdom [2011] ECHR 737 and Eweida and Chaplin v the United Kingdom [2011] ECHR 738 has determined that in most cases UK legislation does sufficiently protect the rights of employees who wish to manifest their religion at work, a freedom provided under Article 9 of the European Convention on Human Rights (“ECHR”), but that this is not always the case.
Ms Eweida, at the time a British Airways employee, sought to wear a visible Christian cross at work but was prevented from doing so on the basis that it contravened BA’s uniform policy. Ms Eweida claimed this policy was both indirectly discriminatory and a breach of her Article 9 right to freedom of thought, conscience and religion. The Tribunal found that there had been no indirect discrimination because wearing a cross was not a mandatory requirement for Christians, and accordingly they were not at a group disadvantage as a result of BA’s uniform policy. Ms Eweida appealed the decision, but the Employment Appeal Tribunal also found no evidence of a group disadvantage and hence no indirect discrimination. The Court of Appeal endorsed this approach, and the Supreme Court refused leave to appeal.
Ms Chaplin, a nurse, also sought to wear a visible cross at work, but was refused permission on health and safety grounds. She brought an action in the Employment Tribunal for both direct and indirect discrimination, but was unsuccessful. The Tribunal found that there was no direct discrimination because her employer’s stance was brought about by health and safety, rather than religious, concerns, and that these concerns were proportionate. No evidence was found of a group disadvantage so there could be no indirect discrimination. Ms Chaplin was advised that any appeal would have no prospect of success following the Court of Appeal’s decision in respect of Ms Eweida.
Ms Ladele and Mr Macfarlane, a registrar and psycho-sexual therapist respectively, both refused to work with same-sex couples. Both Claimants succeeded in showing that the requirement to work with same-sex couples put Christians at a group disadvantage. In neither case, however, was this requirement adjudged to amount to indirect discrimination, because it was found to have been justified; especially given that the employers acted as they did so as to avoid sexual orientation discrimination.
Of the above Claimants, only Ms Eweida won her claim in the ECtHR. The Court held that wearing a visible cross was a manifestation of religious belief (it did not matter that it was not a mandatory requirement for Christians), and was thus protected under Article 9. In preventing Ms Eweida from wearing a visible cross, a fair balance had not been struck between her desire to manifest her religious belief and BA’s wish to portray a particular corporate image. Conversely, Ms Chaplin lost her claim because the ECtHR held that her right to manifest her religious belief was outweighed by her employer’s reasons for asking her to remove it, namely that wearing the cross presented health and safety issues in the hospital. Ms Chaplin’s employer’s interference in her right was held to be necessary in a democratic society, and so there was no violation of Article 9. Ms Ladele and Mr Macfarlane both lost their claim on the basis that their rights were outweighed by their employers’ aim of providing a non-discriminatory service.
The court’s decisions are perhaps unsurprising. Whilst it would have been open to the court to have allowed “reasonable accommodations” to be made to the roles of individuals with religious views akin to those of Ms Ladele and Mr Macfarlane, for example by allowing registrars to “opt out” of performing same-sex civil ceremonies, this would be supporting discriminatory attitudes that are considered by most to be out-dated and unpalatable. Although some may not have expected Ms Eweida’s success, overall the decision is not radical. BA’s argument related to corporate image and it is not difficult to see why this should play second fiddle to religious beliefs. Further Ms Chaplin’s case demonstrated the limited nature of the Eweida decision with health and safety being held to be of greater importance than the right to wear a cross.
Overall any future finding is likely to be exteremely fact-specific, with particular regard paid to both the proportionality of the employer’s reasons for breach and the ramifiactions of exercise of the right. For example, in breaching Article 9, is an employer acting to protect its corporate image or the health and safety of its customers? Would the exercise of an employee’s right result in discrimination against others? Employers will now need to give serious consideration to these issues, but in an ordinary office environment it seems that it will be difficult to have any dress code policy limiting the open wearing of crosses or other similar manifestations of religious belief.
