Religion at work: new ECHR ruling

Religion at work: new ECHR ruling

Published:

Author: Kevin McCavish

The European Court of Human Rights has handed down a judgment considering the right of individuals to manifest their religion in the workplace.

The case

In Eweida, the European Court of Human Rights (ECHR) considered the joined cases of four individuals who were all practicing Christians: Ms Eweida, a British Airways employee, and Miss Chaplin, a nurse, complained their employers restricted them wearing visible crosses around their necks while at work. Ms Ladele, a Registrar of Birth, Deaths and Marriages and Mr McFarlane, a Relate Councillor, complained about their dismissal for refusing to carry out certain elements of their jobs which they considered would condone homosexuality, contrary to their religious beliefs.

All four individuals had brought cases of religious discrimination in the employment tribunal and had ultimately been unsuccessful in those claims. They therefore appealed to the ECHR.

The law

The European Convention on Human Rights (the Convention) gives the right to freedom of thought, conscience and religion and to manifest religion and belief, subject to certain limitations (Article 9). Article 14 provides that individuals must enjoy the rights conferred by the Convention without discrimination on any grounds, including religion.

The Convention is incorporated into English law by the Human Rights Act 1998. While not directly applicable to private employers, Courts and tribunals must interpret domestic legislation as far as possible in a way which is compatible with Convention rights. In this way employees may "indirectly" access their Convention rights.

The decision

The ECHR only upheld Ms Eweida's claim (by a majority of five to two) and awarded her #2,000 as damages plus costs; it dismissed the other three claims.

It found that Ms Eweida's desire to manifest her religious belief by wearing a visible cross outweighed her employer's desire to project a certain corporate image. However, in the case of Ms Chaplin, it considered that the protection of health and safety on a hospital ward, the justification relied upon by her employer, was more important than that which applied in Ms Eweida's case and that hospital managers were better placed to make decisions about clinical safety than the domestic courts.

In Ms Chaplin's case, the ECHR considered it had not been disproportionate for the hospital to ask her to remove her cross given the importance of the protection of health and safety on a hospital ward. The hospital claimed the cross could cause injury if pulled off by a patient or if it came into contact with an open wound. This was regardless of the fact that Ms Chaplin had worn the crucifix for thirty years without incident and it was only when new uniforms with 'V' necks were introduced in the hospital that the crucifix became an issue.

In the case of Ms Ladele and Mr McFarlane, the ECHR considered that the importance of the employer's policy of non-discrimination against service users and the right not to be discriminated against on the grounds of sexual orientation outweighed the individual's Article 9 right: the domestic courts had a wide discretion when it came to striking a balance between the employer's right to secure the rights of others and the applicants' rights to manifest their religion.

Comment

The ECHR made it clear that the right under Article 9 to manifest religious belief extended to the workplace. However, where an individual's religious observance impinged on the rights of others, some restrictions were legitimate. It considered that its role was to review decisions taken at national levels and decide whether they struck a fair balance between the various competing rights and interests.

Because Ms Eweida worked for a private company, the ECHR was simply concerned with whether her right to freely manifest her religion had been sufficiently protected under domestic law. The good news for the UK Government is that it did not consider that the absence of legal provisions specifically regulating the wearing of religious clothing and symbols in the workplace was a breach of the Convention.

Nevertheless, it concluded that a fair balance had not been struck in her case between her desire to manifest her religious belief and communicate that to others, and her employers wish to project a certain corporate image, even though that was in itself legitimate.

The Court appeared to be influenced by the fact that BA had previously authorised other items of religious clothing such as turbans and Hijabs without any negative impact on their brand. The fact that the company had also subsequently amended its uniform code to enable the wearing of visible religious and symbolic jewellery showed that the earlier prohibition had not been of crucial importance to them.

These long-running cases have attracted much publicity and media attention but it cannot be said that they signify a decisive victory for the religious lobby. While employers may continue to face difficult conflicts between competing rights, it is clear that the right for employees to manifest their religious belief in the workplace are far from absolute. Each case will turn on its own facts and a balancing exercise will need to be carried out.