Religious discrimination: lessons for the future?

European Court of Human Rights iStock 000010150571Small 146x219Susan Belgrave looks at the impact of recent landmark decisions from the Employment Appeal Tribunal and the European Court of Human Rights on religious discrimination claims in the employment arena.

When the dust has settled what are the important lessons that an employer can take away from the recent set of decisions in the field of religious discrimination: Mba, Eweida, Mcfarlane, Ladele and Chaplin?

These cases all involve claims of indirect religious discrimination where Christians have maintained that rules in their workplace impinged on their manifestation of their faith in the workplace. The headlines have been provocative and occasionally misleading but the legislative position is rather more prosaic.

In the case of Mba v London Borough of Merton EAT Langstaff P presiding the EAT was asked to consider whether the tribunal had made an error of law when it ruled that the council had been entitled to require the claimant to cover Sunday shifts at a care home for disabled children offering respite care. Mrs Mba has maintained that when she started her job she had been promised that she would not be required to work on Sundays as she was a devout Christian.

As the tribunal found there had been no such agreement but a recognition by the employer that her unwillingness to work on Sundays would be respected and accommodated where possible but no guarantee that she would never have to work on Sundays. She was thus able to work at the home for two years without having to work on a Sunday. When she was eventually rostered to work on Sunday she did not attend work and was disciplined. She raised a grievance which was unsuccessful and subsequently resigned claiming constructive dismissal and religious discrimination. The claim was brought under the Employment Equality (Religion) Regulations 2003, the precursor to the Equality Act 2010.

The correct approach in cases on indirect discrimination

A claim for indirect discrimination is not straightforward. The tribunal needs to identify the PCP (provision criterion or practice) involved, consider whether it is placing a particular group at a disadvantage and consider the aim of the employer, its legitimacy and whether the steps taken are proportionate.

The claimant sought to argue that the council could have made a number of staffing adjustments which would have allowed her to have Sunday off such as rostering two other members of staff, employing bank or agency staff. However, the tribunal at first instance considered that the needs of service justified the council in taking the approach it had. In particular it was legitimate for the council to ensure an appropriate gender balance on each shift; an appropriate seniority mix on each shift; a cost-effective service in the face of budgetary constraints; fair treatment of all its staff and continuity in care in staff looking after children at the home. The council had, in fact, arranged the roster so that Mrs Mba would have been able to go to church on Sunday mornings as she wished.

Indirect discrimination seeks to address the issue of group disadvantage and thus the tribunal has to consider the particular tenet of faith which the claimant is relying on to see whether it is upheld as sacrosanct by a large number of adherents of the same faith as the claimant. The larger the number of those who share the claimant’s view, the greater will be the disadvantage to the group and the more important it will be for the employer to show consideration and flexibility. There was evidence from a Church of England bishop to the effect that some Christians would find it wholly objectionable to work on a Sunday as it is a holy day. Clearly, many would not.

The EAT noted that the tribunal had not perhaps expressed itself very felicitously when it stated that keeping Sunday as a day of rest was not a core tenet of the Christian religion because it is not the place of the courts to evaluate aspects of religious faith. However, the approach taken by the tribunal showed that it had correctly understood and applied the right test and there was no error of law. The President of the EAT was at pains to state that this case did not provide a general overarching principle that said there was no right to work on Sundays as it case depends on its facts.

European Court of Human Rights

The Mba case is not making a new statement of the law. While employers cannot ride roughshod over the religious beliefs of their staff, provided there are cogent and compelling reasons for the approach adopted the tribunal will generally be satisfied.

This was the message emerging from the European Court of Human Rights when it heard the conjoined appeals in Eweida, Ladele, McFarlane and Chaplin [Case of Eweida and others v United Kingdom ECHR 15 January 2013]. Eweida and Chaplin concerned the right to wear a cross to work in possible contravention of company policy on uniforms; Ms Ladele was the Christian registrar at Islington Council who refused to conduct civil partnerships and Mr Mcfarlane, also a Christian, did not wish to provide psychosexual counselling to same sex couples as part of his job at Relate.

All four had been unsuccessful in the British courts and had taken their cases to the Court alleging that the government had infringed their rights to hold and manifest their religion under Article 9 of the European Convention on Human Rights. In the event only the case of Eweida was successful. Mrs Eweida had wanted to wear a cross visible outside her uniform and British Airways had refused her permission. It had subsequently reviewed its uniform policy and amended it to allow for such items of religious faith to be displayed. This was in direct contrast to the case of Mrs Chaplin who worked as a nurse at a hospital which prohibited the wearing of such jewellery on health and safety grounds. Her appeal was unsuccessful. The court considered separately the cases of Ms Ladele and Mr. McFarlane who considered that their religious beliefs forbade them performing duties for their employers which might be considered to condone homosexual union.

The court took a slightly more nuanced view than previously. Established cases have been fairly clear that there is no violation of the right to religious freedom where an employee can leave their job and work elsewhere if they consider that their duties at work would somehow curtail or infringe their manifestation or observance of their religion.

The court stated that this was not determinative of the matter and the facts of each case will be important. In relation to the Eweida case, the court noted that British Airways had made allowances for members of other religions to modify their uniform to accommodate the wearing of a turban in BA colours, for instance, for Sikhs. It also noted that BA had immediately reviewed and amended its policy after the first complaint received, the policy had previously been unchallenged for seven years. However, it noted that the cross which Ms. Eweida wished to wear was discreet and would not have made her look any less professional when wearing her uniform so that the employer and the courts had not struck the right balance between her rights and those of the employer.

A similar analysis led to a different conclusion in Chaplin. The court was not in a position to second guess the clinical opinion of hospital managers in the Chaplin case that wearing a cross would be a health and safety risk. The employer’s approach and that of the courts in that case was more compelling and cogent and Ms Chaplin was unsuccessful in her application before the ECHR.

The other two cases (Ladele and McFarlane) raised a slightly different issue as to a balance between the rights of the claimants and the rights of employers to insist on non-discriminatory practices in their workplace. Although domestic courts have shied away from viewing these cases as a clash of competing interests, the European Court recognised that there was a wide margin of appreciation here and that employers and courts were entitled to seek to uphold a policy which sought to ensure non discrimination in favour of another protected group (here on grounds of sexual orientation). Both Islington and Relate had insisted that the claimants’ stance breached their equal opportunities policies and the requirement that their service be provided to all members of the public on an equal footing.

Together, these cases emphasise the importance of religion to certain individuals and the need for employers to consider carefully all the options before rejecting requests for accommodation out of hand. In truth, most of these employers had actually done so. Striking the right balance between the rights of the employee and the exigencies of the service or the rights of other service users will require a careful analysis by managers in each and every case. These cases do not lay down hard and fast rules for employers. And contrary to the headlines, neither side has won a knockout victory.

Susan Belgrave is a barrister at 9 Gough Square. She can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it..