Can you allow an employee to display a symbol of their religious belief contrary to a uniform policy prohibiting such expressions? Employment Solicitor Donna Martin reviews the recent European Court of Human Rights (“ECtHR”) much anticipated decision, Eweida & Others v. The United Kingdom (2013) ECHR 37, to assess whether or not justification for defences in religious discrimination claims really have been redefined
Nadia Eweida was a check-in assistant for British Airways (“BA”); as a Christian she wore a small silver crucifix as an expression of her faith. The display of such jewellery was prohibited under BA’s then uniform policy as it did not comply with their corporate image. As a result, in 2006 Ms Eweida was sent home from work, without pay, for a number of months for refusing to comply with the uniform policy. She was offered an administrative role which would not involve face to face customer contact however, Ms Eweida refused to accept this role. In 2007 BA did amend their uniform policy to permit employees to display religious and charity symbols.
Ms Eweida took her case to the Employment tribunal where she claimed that she had been directly discriminated against due to her religion and belief and further, that BA’s uniform policy was indirectly discriminant. The claim for direct religious discrimination failed on the basis that it was not a requirement of the Christian faith to wear or display a cross, it was simply a personal choice. However, her claim for indirect discrimination was successful as the Tribunal found that BA’s policy which prohibited the wearing of jewellery placed Christians at a disadvantage when compared to non-Christians.
Ms Eweida appealed the Tribunal decision however, the Employment Appeal Tribunal upheld the earlier decision as did the Court of Appeal.
Ms Eweida, together with three others, took her case to the ECtHR. The other applicants included Shirley Chaplin who worked as a nurse dealing with dementia patients whose desire to wear a cross was refused due to the risk of infection and injury, Lillian Ladele who was a registrar and wanted to refuse to carry out civil partnership ceremonies and Gary McFarlane who worked for the relationship counsellors ‘Relate’ and wanted to avoid giving same sex couples therapy.
The ECtHR decided in the case of Ms Eweida that the manifestation of a person’s religious belief is the foundation stone of their human rights therefore, the UK had breached Article 9 (which guarantees freedom of thought, conscience and religion) of the European Convention on Human Rights by failing to protect Ms Eweida’s right to manifest her religious belief. The ECtHR concluded that “where there is no evidence of any real encroachment on the interests of others, the domestic authorities failed sufficiently to protect the first applicant’s right to manifest her religion, in breach of the positive obligation under Article 9”.
Prime Minister David Cameron has supported the judgment and it appears to have been welcomed by most. As a result employers will have to balance their employee’s desires to manifest their religious beliefs and their wish to protect their corporate image further, any policy which imposes on an employee’s religious freedom must be capable of being justified otherwise it will be deemed discriminatory.
What is also worthy of note in the decisions of Ladele and McFarlene is that the ECtHR appears to be unsympathetic to any applicant who claims that they must be permitted to discriminate against others when providing services due to their own religious belief. As expected, an employee cannot be exempt from their employer’s anti-discrimination policy on the basis of their own, potentially conflicting, belief.
Mackrell Turner Garrett