There have been a number of high profile cases in recent months in the vexed area of the extent to which employees are free to manifest their religious or other beliefs in a workplace context.
This is an area where there can be tension created by one employee’s freedom to express their personal belief which conflicts with that held by another employee or the aims of their employer.
What an employer can do in those circumstances is a question which various courts, and most recently the Equality and Human Rights Commission, have sought to provide guidance.
Eweida and others v United Kingdom
This was a high profile ruling by the European Court of Human Rights on complaints brought by four claimants that UK law failed adequately to protect their rights under the European Convention on Human Rights to manifest their religious beliefs in the workplace.
Ms Eweida worked for British Airways as a member of its check in staff. She wanted to wear a plain silver cross to be visible over the top of her uniform as a personal expression of her Christian faith. BA refused to allow her to do so as it was contrary to its uniform policy.
Ms Eweida claimed that that refusal amounted to religious discrimination but her claim failed in the Employment Tribunal, Employment Appeal Tribunal and Court of Appeal on the basis that she had failed to provide evidence of other Christians who felt disadvantaged by not being able to openly wear a cross and had therefore failed to show the necessary 'group disadvantage' required to succeed in a claim of indirect discrimination under the Equality Act 2010. A number of witnesses gave evidence to say that it was not a requirement of the Christian faith or scriptures to wear a cross which was rather a personal decision by Ms Eweida. The Court of Appeal held that BA's uniform policy was justified as a proportionate means of achieving a legitimate aim and therefore was objectively justified.
Mrs Chaplin was employed as a clinical nurse. She wanted to wear a crucifix on a necklace at work as she considered it an essential part of her Christian faith. In the same way as Ms Eweida this contravened her employers uniform policy. Her claim of indirect religious discrimination also failed in the Employment Tribunal as she failed to establish that the uniform policy placed people of her religion at a particular disadvantage and it was held to be objectively justified in any event. Particular significance was given to the potential health and safety implications and the fact that the employer, the Royal Devon and Exeter NHS Foundation Trust, had undertaken a reasonable dialogue with Mrs Chaplin with a view to resolving the issue.
Ms Ladele was employed by the London Borough of Islington as a registrar of births, deaths and marriages. She is a Christian and part of her beliefs are that same sex partnerships are contrary to God's law. Following the introduction of the Civil Partnership Act on 2004 Ms Ladele refused to perform civil partnership ceremonies as they conflicted with her religious beliefs. She was dismissed for gross misconduct for acting in breach of Islington's Dignity for All policy and discriminating against the gay community.
Although initially successful in front of the Employment Tribunal Ms Ladele lost at the Employment Appeal Tribunal and Court of Appeal stage. It was common ground between the parties that the London Borough of Islington had a legitimate aim in seeking to provide effective services in relation to civil partnerships and that as a public service employer it was committed to promoting equal opportunities including the rights of the gay community. The council was therefore held to be entitled to require all registrars to perform the full range of services. Its Dignity for All policy was held to be of overarching significance to the council, having fundamental human rights, equality and diversity implications.
Mr McFarlane, a Christian sex counsellor was dismissed by Relate for refusing to counsel same sex couples. He was unsuccessful both in front of the Employment Tribunal and Employment Appeal Tribunal as it was held that Relate's actions were objectively justifiable as a proportionate means of achieving the legitimate aim of providing a full range of counselling services to all sections of the community regardless of their sexual orientation.
Having all exhausted their remedies under domestic law without success Ms Eweida, Mrs Chaplin, Ms Ladele and Mr McFarlane brought claims in the European Court of Human Rights that the Equality Act 2010 failed to protect their rights as Christian employees to manifest their religious beliefs under Article 9 of the European Convention on Human Rights.
The European Court, by a majority of 5-2 upheld Mrs Eweida’s complaint that her Article 9 rights had been violated and awarded her 2000 euros compensation for anxiety, frustration and distress. By 5-2 Ms Ladele’s complaint was rejected as were Mrs Chaplin's and Mr McFarlane's on a unanimous basis.
The following general principles can be drawn from the judgments in the combined cases:
- Religious freedom encompasses the freedom to manifest one’s belief, both in private and in public. However, as this manifestation may have an impact on others Article 9 allows this to be limited by national law, to the extent that that limitation is necessary in a democratic society.
- The right to freedom of thought, conscience and religion covers views that attain a certain level of cogency, seriousness, cohesion and importance. Not every act inspired, motivated or influenced by such a belief will be a manifestation of that belief. It must be intimately linked to the religion or belief. There is however no requirement that the act be in fulfilment of a duty mandated by the religion.
- Previous cases in the European Court of Human Rights have held that workplace rules did not interfere with religious freedom as an employee was always free to resign and change employment. However in these cases the Court said that the better approach would be to weigh that possibility in the balance when considering whether the workplace restriction in question was proportionate.
- At the end of the date a fair balance must be struck between the competing interests of the individual and of the community as a whole.
The points of particular significance which can be derived from these cases for UK based employers are:
- The desire to project a particular corporate image is unlikely to amount to objective justification preventing an employee manifesting their religious belief, at least where this is done discretely and without significantly impacting on the rights of others. However, genuine health and safety reasons preventing such a manifestation may well be justified.
- Art 9 does not only protect religious freedom but also freedom of conscience and thought. There has been much debate about, whether employee’s political beliefs or lifestyle choices therefore do or should fall within the ambit of the Equality Act 2010.
- There is clearly a balancing act to be achieved therefore between the right of an employee to manifest their religious beliefs in the workplace and the right of others to be treated equally. This can inevitably result in tension between competing rights, as very clearly demonstrated in the cases of Ms Ladele and Mr McFarlane.
Following the judgment in these combined cases in the European Court of Human Rights the Equality and Human Rights Commission produced a good practice guide aimed at helping employers understand how to comply with the Court’s judgement when recognising and managing the expression of religion or belief in the workplace. Issues such as what kind of religion or belief requests need to be considered, how requests should be dealt with and what questions an employer should ask to ensure that their proposed approach is justified are covered together with a number of examples of typical requests in this area with suggested responses. The EHRC encourage employers to take requests seriously and to use as their starting point consideration as to how to accommodate the request unless there are cogent or compelling reasons not to.
The EHRC guidance can be .
For more specific advice please contact Clare Waller at the Cambridge office by telephone on 01223 532730 or click here to email Clare.