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Religious belief in the workplace
[ch 6: pages 163-165]Four landmark rulings by the European Court of Human Rights in 2013 made important new law about the limits on protection of religious belief in the workplace. In summary, the ECHR ruled that workers have the right to manifest (i.e. display) their individual faith in the workplace, for example by wearing religious adornments such as a cross, but that this is a qualified (not an absolute) right.
The ECHR also confirmed that workers are not allowed to manifest their religious faith at work by objecting to practices protected by other anti-discrimination laws, for example hard won laws prohibiting discrimination against gay, lesbian and LBGT workers:
The first two ECHR rulings concerned the wearing of a visible cross at work. Ms Eweida, who staffed a British Airways (BA) check-in desk and Ms Chaplin, a geriatric nurse, were both penalised for wearing the cross and brought claims for religious discrimination. Eweida won her claim before the European Court of Human Rights (ECHR). The ECHR ruled that her right to manifest her religion under Article 9 of the European Convention on Human Rights had been infringed. A fair balance had not been struck between her desire to wear a small visible cross to communicate her belief to others, and BA’s desire to project a particular corporate image. The ECHR noted that other BA workers had been allowed to wear items of religious significance such as turbans and hijabs without impacting negatively on that image. Moreover, BA had since amended the uniform code to permit the visible wearing of religious symbolic jewellery, showing that it was not an issue of great importance to them.
By contrast, nurse Ms Chaplin lost her case because she had been asked to remove her cross at work for reasons of health and safety. The ECHR said that hospital managers are in a better position to judge issues of clinical safety than courts. Requiring Chaplin to remove the cross had not been disproportionate, and the interference with her freedom to manifest her religion was justified as necessary in a democratic society.
Eweida and Others v The United Kingdom Applications nos. 48420/10, 59842/10, 51671/10 and 36516/10
The other two rulings concerned workers whose religious beliefs led them to reject homosexuality. The ECHR ruled that workers are not allowed to manifest their faith at work by objecting to practices that are protected by other anti-discrimination laws, such as laws prohibiting discrimination against gay, lesbian, bisexual and transgender workers:
Ms Ladele, a registrar of births, marriages and deaths, and Mr McFarlane, a Relate counsellor, were dismissed for refusing to officiate over a civil partnership, or to counsel a gay couple. They were both practising Christians. Ladele and McFarlane lost their cases. The ECHR said that their employers’ equal opportunities and anti-discrimination policies had the legitimate aim of securing the rights of others, such as same-sex couples, which were also protected under the Convention and which trumped the right to manifest religious views in these circumstances.
Differences in treatment based on sexual orientation need particularly serious justification, said the ECHR, because same-sex couples have the same need for legal recognition and protection of their relationship as heterosexual couples.
The ECHR said it has a wide discretion when it comes to striking a balance between the employer’s need to protect the rights of others and the claimants’ right to manifest their religion. Here, the right balance had been struck by requiring the claimants to officiate at a civil partnership or to counsel a gay couple or else face dismissal, and no violation of the Convention had taken place.
Eweida and Others v The United Kingdom Applications nos. 48420/10, 59842/10, 51671/10 and 36516/10 [2013] IRLR 231
In Chondol v Liverpool City Council [2009] UKEAT 0298/08/1102, a Christian mental health worker in charge of vulnerable adults was not subject to religious discrimination when she was dismissed for giving copies of the Bible to clients and visiting them outside of work unaccompanied, both of which were prohibited by the employer. Dismissing someone for proselytising (attempting to convert individuals to a faith) is not unlawful religious discrimination. Ms Chondol was not dismissed for manifesting her faith, but rather because she went about it in a way that breached the employer’s rules and policies.
Similarly, in Grace v Places for Children [2013] UKEAT 0217/13/0511, a claimant did not suffer religious discrimination when she was dismissed for holding unauthorised training sessions where she discussed the Bible, leading to complaints from co-workers, and for disturbing colleagues with frightening predictions linked to her religious beliefs, such as suggesting that a pregnant co-worker might lose her baby.
The Equality and Human Rights Commission has revised its guidance on managing religion or belief in the workplace, available from its website, to take account of these rulings.
Acas has produced a good practice guide on religious observance in the workplace: Religion and belief and the workplace: a guide for employers and employees, available from the Acas website. The guidance covers issues such as dress codes, working hours, work-related socialising and other working practices that may impact on religious belief.
www.acas.org.uk/media/pdf/d/n/Religion-or-Belief-and-the_workplace-guide.pdf