18 January 2013 #Employment
Four Christians (Ms Eweida, Ms Chaplin, Ms Ladele and Mr McFarlane) who were prevented from manifesting their religion in various ways in the workplace unsuccessfully claimed in the UK courts that they had been unlawfully discriminated against on grounds of their religion.
They complained to the European Court of Human Rights (ECtHR) that the UK had failed adequately to protect their Article 9 right, which includes the right to manifest their religion “subject to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health, or morals, or for the protection of the rights and freedoms of others”. Ms Eweida’s application was successful but the others’ were not.
Ms Eweida worked as a flight attendant for British Airways (BA). After she started employment, BA introduced a rule that customer-facing staff were not to wear any visible adornments, unless the wearing of them was a mandatory religious requirement and they could not be concealed under the uniform. Under this rule, BA permitted turbans, hijabs and skull caps, but not the cross on a chain which Ms Eweida started to wear outside of her uniform. When Ms Eweida refused to conceal or remove it, or to work in a non-customer-facing role as an alternative, she was sent home without pay. Ms Eweida claimed indirect religious discrimination, BA changed its policy to allow visible faith or charity symbols to be worn, and Ms Eweida returned to work.
The UK courts dismissed Ms Eweida’s indirect religious discrimination claim on the basis that it depended on her showing that BA’s policy operated to the particular disadvantage of a group sharing the same religion or belief as her (i.e. Christians). However, the visible wearing of a cross was not required by scripture or as an article of faith and was Ms Eweida’s personal choice rather than a religious requirement. Further, there was no evidence that the policy (which applied to some 30,000 uniformed staff) put Christians at a disadvantage. If there had been indirect discrimination, the policy would have been objectively justified by BA’s interest in projecting a particular corporate image (Employment Tribunal and Court of Appeal only).
The ECtHR held that an act does not need to be a requirement of a particular religion in order to attract the protection of Article 9. BA’s refusal to allow her to remain in her post whilst visibly wearing a cross amounted to an interference with her right to manifest her religion. The UK court (Court of Appeal) had not struck a fair balance between BA’s legitimate desire to project a particular corporate image and Ms Eweida’s right to manifest her religion, and had given the former too much weight. There was no evidence that employees wearing turbans and hijabs had any negative impact on BA’s brand or image, and the fact that BA subsequently allowed visible religious symbols to be worn showed that the previous ban was not crucially important. The fact that Ms Eweida could have avoided the interference with her right by changing job was just one factor to weigh in the balance when considering whether or not the interference was proportionate. The UK had therefore failed sufficiently to protect Ms Eweida’s Article 9 right to manifest her religion.
Ms Chaplin worked as a geriatric nurse and also sought to wear a cross outside of her uniform in breach of her employer’s policy. The ECtHR held that, as with Ms Eweida, the policy was an interference with her right to manifest her religion. However, in this case, the interference was justified by the need to protect her own and patient health and safety.
Ms Ladele was a registrar who was dismissed after refusing to perform civil partnership ceremonies for gay couples and Mr McFarlane was a relationship counsellor who was dismissed for being unwilling to provide sexual counselling to gay couples. The ECtHR held that the interference with their right to manifest their religion was justified by the employers’ aim of requiring all its employees to act in a way which does not discriminate against others (in this case, on grounds of sexual orientation).