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Religious Discrimination Update

Religious Symbols (123rf ref 10800546)

Summary:  The European Court of Human Rights (ECHR) has confirmed that in 3 out of the 4 cases presented to it, UK Law provided sufficient protection against discrimination for employees who wished to manifest their religious beliefs in the workplace. However, in one of the cases, the ECHR did not agree that sufficient protection was provided.

 

 

Facts:

Background to the European Legislation:

Article 9 of the European Convention of Human Rights (the Convention) provides that there is a right to freedom of thought, conscience and religion, but a qualified right to manifest one’s religion or beliefs. This is subject to “only such limitations as 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 other.”

All of the applicants sought to assert their rights under Article 9 of the Convention.

The ECHR Decision:

Ms Eweida

The ECHR held that the UK Courts attributed too much weight to Ms Eweida’s employer’s (British Airways) desire to project a certain image. Her cross was discreet, and there was no evidence that the wearing of religious items by employees had any negative impact on the BA brand. It was notable that BA had since amended their uniform policy which now allows the wearing of a cross. The ECHR took the view that the earlier prohibition could not therefore have been of crucial importance.  It was held that there had been a breach of the State’s obligations under Article 9 in failing to protect Ms Eweida’s rights.

Ms Chaplin

The ECHR held that the reason for asking Ms Chaplin to remove the cross i.e., the protection of health and safety on a hospital ward, was more important than the importance of her being permitted to manifest her religion. Therefore, there was no breach of her Article 9 rights.

Ms Ladele and Mr McFarlane

Ms Ladele and Mr McFarlane lost their applications. The ECHR held that the critical factor was the policies of the applicant’s employers which aimed to secure the rights of others, who were also protected under the Convention.

The Impact of this Decision on Employers:

Dress Codes:

Employers can impose a standard dress code on their organisation. They can also restrict their staff members from demonstrating an affiliation with all or any religions via their clothing if they can establish that this restriction is for a justifiable reason. In the case of Eweida, corporate image was not considered a justifiable reason whereas, in the case of Chaplin, health and safety reasons were acceptable.

Going forward, employers must be able to justify the reasons behind any restrictions which would not allow staff members to wear items portraying their religious beliefs. As a general rule, a reason associated with business interests only would be unlikely to withstand judicial scrutiny whereas, a reason focused on public interest and safety would be more likely to be lawful. An employer must be prepared to produce evidence to substantiate their policies in this regard.

Provision of Services

Where advisory and/or support services are being offered to the public and it is intended that they are available to all members of the public, it is important that the employer has a written policy in place to convey this message. This policy should be communicated to all employees and they should confirm in writing that they have had this information.

If you require any further information on how this decision may affect your business, please do not hesitate to contact the legal team at Floyd Graham & Co Solicitors.

Rachael Jessop, Solicitor.

Contact Information

fgmedia@floydgraham.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice. 

Updated: by FG Solicitors
Call us on:  0808 172 93 22

RELIGIOUS DISCRIMINATION UPDATE

Religious Symbols (123rf ref 10800546)

Summary:  The European Court of Human Rights (ECHR) has confirmed that in 3 out of the 4 cases presented to it, UK Law provided sufficient protection against discrimination for employees who wished to manifest their religious beliefs in the workplace. However, in one of the cases, the ECHR did not agree that sufficient protection was provided.

 

 

Facts:

  • This case concerned four applications against the UK by four British nationals, Ms Eweida, Ms Chaplin, Ms Ladele and Mr McFarlane (the applicants).
  • The applicants complained that UK law failed adequately to protect their right to manifest their religion as follows:
    • Ms Eweida and Ms Chaplin complained about restrictions placed by their employers on their wearing of a cross visibly around their necks.
    • Ms Ladele and Mr McFarlane complained specifically about sanctions taken against them by their employers as a result of their concerns about performing services which they considered to condone homosexual union. In particular, Ms Ladele was a registrar and was required to perform civil partnership ceremonies and Mr McFarlane provided counselling services. Both were unwilling to provide these services to same sex couples.

Background to the European Legislation:

Article 9 of the European Convention of Human Rights (the Convention) provides that there is a right to freedom of thought, conscience and religion, but a qualified right to manifest one’s religion or beliefs. This is subject to “only such limitations as 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 other.”

All of the applicants sought to assert their rights under Article 9 of the Convention.

The ECHR Decision:

Ms Eweida

The ECHR held that the UK Courts attributed too much weight to Ms Eweida’s employer’s (British Airways) desire to project a certain image. Her cross was discreet, and there was no evidence that the wearing of religious items by employees had any negative impact on the BA brand. It was notable that BA had since amended their uniform policy which now allows the wearing of a cross. The ECHR took the view that the earlier prohibition could not therefore have been of crucial importance.  It was held that there had been a breach of the State’s obligations under Article 9 in failing to protect Ms Eweida’s rights.

Ms Chaplin

The ECHR held that the reason for asking Ms Chaplin to remove the cross i.e., the protection of health and safety on a hospital ward, was more important than the importance of her being permitted to manifest her religion. Therefore, there was no breach of her Article 9 rights.

Ms Ladele and Mr McFarlane

Ms Ladele and Mr McFarlane lost their applications. The ECHR held that the critical factor was the policies of the applicant’s employers which aimed to secure the rights of others, who were also protected under the Convention.

The Impact of this Decision on Employers:

Dress Codes:

Employers can impose a standard dress code on their organisation. They can also restrict their staff members from demonstrating an affiliation with all or any religions via their clothing if they can establish that this restriction is for a justifiable reason. In the case of Eweida, corporate image was not considered a justifiable reason whereas, in the case of Chaplin, health and safety reasons were acceptable.

Going forward, employers must be able to justify the reasons behind any restrictions which would not allow staff members to wear items portraying their religious beliefs. As a general rule, a reason associated with business interests only would be unlikely to withstand judicial scrutiny whereas, a reason focused on public interest and safety would be more likely to be lawful. An employer must be prepared to produce evidence to substantiate their policies in this regard.

Provision of Services

Where advisory and/or support services are being offered to the public and it is intended that they are available to all members of the public, it is important that the employer has a written policy in place to convey this message. This policy should be communicated to all employees and they should confirm in writing that they have had this information.

If you require any further information on how this decision may affect your business, please do not hesitate to contact the legal team at Floyd Graham & Co Solicitors.

Rachael Jessop, Solicitor.

Contact Information

fgmedia@floydgraham.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.