Warning of confusion and litigation after ECHR ruling on religion at work

A landmark ruling from the European Court of Human Rights on the right to manifest religion at work leaves "a lot of scope for confusion" and the potential for costly and divisive litigation, it has been claimed.

The case of Eweida and Others v the United Kingdom saw a claim by British Airways employee Nadia Eweida upheld. However, three other claimants – also practising Christians – lost their cases.

The Equality and Human Rights Commission fired a warning over the potential impact of the ruling, although the judgment is likely to be welcomed by employers.

All four claimants had argued that their cases involved breaches of Articles 9 (the right to religious freedom) and 14 (prohibition of discrimination) of the European Convention on Human Rights.

Ms Eweida and Shirley Chaplin, a geriatrics nurse, had complained that their employers placed restrictions on their visibly wearing Christian crosses around their necks while at work.

Ms Eweida’s argument in relation to Article 9 was successful, but not on Article 14. Ms Chaplin lost on both fronts.

In the other cases, Lillian Ladele, a Registrar of Births, Deaths and Marriages at Islington Council, and Gary McFarlane, a Relate counselor, had complained after they were dismissed from their jobs for refusing to carry out certain of their duties which they considered would condone homosexuality.

The ECHR found that the lack of explicit protection in UK law to regulate the wearing of religious clothing and symbols in the workplace in itself did not mean that the right to manifest religion was breached, since the issues could be and were considered by the domestic courts in the context of discrimination claims brought by the applicants.

In Ms Eweida’s case, the ECHR ruled that the domestic courts gave too much weight to BA’s legitimate aim of projecting a certain corporate image. 

However, in Ms Chaplin’s case, the reason for asking her to remove the cross, namely the protection of health and safety on a hospital ward, was “inherently more important” than that which applied in respect of Ms Eweida.

The ECHR said hospital managers were well placed to make decisions about clinical safety.

Meanwhile, the Strasbourg court concluded that in the ‘refusal’ cases involving Ms Ladele and Mr McFarlane, it could not be said that national courts had failed to strike a fair balance when they upheld the employers’ decisions to bring disciplinary proceedings.

The ECHR added that in each case the employer was pursuing a policy of non-discrimination against service-users, and the right not to be discriminated against on grounds of sexual orientation was also protected under the Convention.

The Equality and Human Rights Commission said it would work with employers and religious groups and publish new guidance to help them interpret the ruling. 

The watchdog also said its view was that the Government should look at the need to change the law to take the ECHR's judgment into account. "However, until this takes place, there is potential for confusion for both employers and employees following the ruling. This is in particular due to the fact that the court found that Eweida had suffered discrimination but that Chaplin had not."

Mark Hammond, CEO of the Commission, said: "The right of people to express their religious belief is a vital freedom, guaranteed by the European Convention on Human Rights, so we welcome part of today’s decision by the European Court. This was in line with our advice that people should not suffer unjustified discrimination on the grounds of wearing of religious symbols.

"However there is a lot of scope for confusion following the ruling, so the Commission will be issuing guidance to employers and employees to help them and avoid further costly and divisive legal action. A lot of the confusion and confrontation on this issue could have been avoided if we can work together to come up with common sense approaches to the wearing of religious symbols in the workplace rather than divisive, lengthy and expensive court cases. The Commission is therefore also working with the government to bring together people from different faiths, from secular and humanist groups and employers to develop ideas for how these issues can be resolved."

Allison Cook, a Senior Associate at Veale Wasbrough Vizards who specialises in employment law, described the judgment as a sensible one.

She said: “In terms of uniform and dress code policies it will require an employer to undertake a balancing exercise between the requirements of the uniform itself and the rights of an individual to manifest their religious belief; any refusal must be proportionate in the circumstances. It is likely that uniform or dress codes may need to be reviewed in light of this decision.

“In relation to competing rights i.e. where there are differences in treatment based on sexual orientation, individuals performing public facing roles will find it difficult to insist that they do not carry out all elements of their role because of their religious belief.”

Cook added that these cases turned on their facts and it was likely that there would be further challenges in the future as there remained an element of uncertainty. 

Raymond Silverstein, an employment law specialist at Browne Jacobson, said: “Today’s judgment should be given a cautious welcome by employers. Employers are now at greater risk of a claim should they refuse to allow an employee to wear a religious or philosophical belief symbol at work but may be able to justify such a decision.

“Employees who serve the public have been sent a clear signal that promoting equal opportunities and requiring them to act in a way which does not discriminate against service users overrides their religious or philosophical beliefs at work.”