Canada: European Court Of Human Rights Rules On Expressing Religious Beliefs In The Workplace - Eweida And Others V The United Kingdom

Last Updated: January 25 2013
Article by Michael McCartney and Rebecca Johns

In the case of Eweida and Others v The United Kingdom, the European Court of Human Rights ("ECHR/Court") has determined that the United Kingdom had failed to ensure protection of Ms Eweida's right to freedom of religion under Article 9 of the European Convention of Human Rights by rejecting her discrimination claims. The UK Court of Appeal had rejected Ms Eweida's claim of indirect discrimination against her employer, British Airways ("BA"), for its refusal to allow her to wear a cross around her neck at work. The ECHR held that the Court of Appeal had not correctly balanced the interests of Ms Eweida to express her religious beliefs in the workplace against the interests of British Airways to restrict this through its uniform policy.

However, the right to freedom of religious expression should not be considered to be unlimited. The case was heard alongside the complaints of three other Christians that the UK had breached their Article 9 rights by failing to uphold their religious discrimination claims, all of which were unsuccessful. In the case of Chaplin, the Court held that where there was a sound health and safety reason for a uniform policy, this would justify limitation of religious expression. Similarly, in the cases of Ladele and McFarlane, restrictions on religious expression were held to be proportionate where the employers had the legitimate aim of protecting others from discrimination.

Ms Eweida, a practising Christian, worked as a check-in employee for BA. BA's uniform policy prohibited the wearing of religious insignia and clothing for staff with customer-facing roles, with some limited exceptions for Muslim and Sikh staff. Ms Eweida started to wear a visible cross at work, in breach of the policy, and was eventually sent home for her refusal to comply with it. BA subsequently offered her an alternative administrative role, where the wearing of the cross would be permitted. Ms Eweida refused, and remained on unpaid leave. BA later revised its uniform policy, and Ms Eweida returned to work but was not compensated for the period she had spent on unpaid leave. She brought a claim for compensation for indirect religious discrimination against BA on the basis that its uniform policy had imposed a 'provision, criterion, or practice' which had adversely affected her right to freedom of religious expression.

The UK appellate courts rejected Ms Eweida's claim, primarily on the basis that the wearing of a cross was not a mandatory requirement of the Christian faith but rather Ms Eweida's personal choice, and that, as such, BA's uniform policy did not put Christians in general at a disadvantage.

The ECHR, in its judgment, emphasised the importance of the right of freedom of thought, conscience and religion enshrined by Article 9 in a plural and democratic society, which of itself was unqualified. However, the right to manifest one's religious belief through worship, teaching practice or otherwise could be limited by law where this was necessary in a democratic society in pursuit of one or more legitimate aims. The Court held that in order to count as a 'manifestation' of religious belief within the meaning of Article 9, there must be a sufficiently close connection between the act and the underlying belief. However, there was no requirement on the part of the applicant to show that the act in question was a mandatory requirement of the faith. Having found that Ms Eweida's right to express her faith had been infringed, the Court went on to weigh up whether a fair balance had been struck between the competing interests of Ms Eweida and those of BA. It concluded that, even though BA's subsequent relaxation of the uniform policy and the fact Ms Eweida had been offered an alternative role mitigated the infringement of Ms Eweida's right, a fair balance was not struck. Ms Eweida's right to manifest her religious belief was a fundamental right necessary in a democratic society and 'trumped' BA's desire to project a certain corporate image through its uniform policy. Ms Eweida's cross was discreet, and there was no evidence that symbolic clothing permitted to be worn by Muslims and Sikhs under BA's policy had any adverse impact on BA's image.

The Court's view differed in the cases of the other applicants. Ms Chaplin was also a practicing Christian who was employed as a nurse on a geriatric ward by a hospital trust. The hospital had a policy of preventing necklaces to be worn by staff to reduce the risk of injury when handling patients. Ms Chaplin was instructed to stop wearing a necklace with a cross. When she refused, she was moved to a non-nursing position. The Court held that in this case, the importance of the hospital's health and safety reason for imposing the restriction on Ms Chaplin was of much greater magnitude than BA's interests had been in the case of Eweida. The hospital itself was best placed to make decisions about health and safety, and as such, the Court held that the restrictions in this case were proportionate and did not infringe Ms Chaplin's Article 9 rights.

Ms Ladele was a practicing Christian who had been employed by a local authority as a registrar. Ms Ladele did not believe in same-sex union, and was dismissed for refusing to carry out same-sex civil partnerships as this was in breach of the local authority's equal opportunities policy. Mr McFarlane was a relationship counsellor who was dismissed for his refusal to provide counselling to same-sex couples, where his stance was causing offence to other staff. In both cases, the Court held that the applicants' employers had the legitimate aim of requiring their employees to act in a way which did not discriminate against others and that the UK courts had not exceeded wide the margin of appreciation open to them in determining where to strike the balance between the applicants' rights to manifest their religious beliefs and their employers' interest in securing the rights of others.

Considerations for Employers

The case is significant in confirming that Article 9 may be relied on by individuals in the workplace. Earlier ECHR case law had questioned whether Article 9 could be engaged in the employment context given that workers were not compelled to do any job which conflicted with their beliefs. The ECHR held that the ability to change jobs to avoid restrictions in a particular workplace could be taken into account when considering proportionality overall, but was not a deciding factor. Also, the Court's finding that it was not necessary for a religious manifestation to be a mandatory requirement of a faith in order to be protected may present a challenge to the indirect discrimination provisions in the Equality Act which require an individual to show 'group' disadvantage to claim indirect discrimination.

The message to take from the case is that employers must have legitimate reasons for restricting expression of religious beliefs in the workplace, and ensure that these are proportionate. Employers should check uniform policies to ensure that there is a sound reason why the wearing of religious insignia or clothing may not be worn - projection of a certain corporate image is unlikely to be sufficient, but health and safety reasons may be. This may also apply to the wearing of symbols connected with beliefs. Similarly, employers will need to ensure that requests by employees for relief from certain duties/work patterns on religious grounds are given serious consideration, and that a refusal of them is for a legitimate aim. Employers must also consider whether their aim is proportionate when weighed against the employee's rights.

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