UK: Religious Discrimination Ruling By The European Court Of Human Rights

Last Updated: 22 January 2013
Article by James Major and Sarah John

The European Court of Human Rights has just released its decision in respect of the applications of four practising Christians from the UK, Eweida, Chaplain, Ladele and McFarlane, addressing the issue of protection of the rights of individuals to manifest their religion at work, and the way in which that right should be balanced against the rights of others.

In the case of Eweida, the Court held that her right to manifest her religious belief had not been sufficiently protected by the UK. However, in the cases of Chaplain, Ladele and McFarlane there had been no violation of the individuals' rights.

The decision highlights the need for employers to carefully examine the aim of any particular policy or working practice and weigh up any conflicting religious interests in order to justify the policy or practice. Such policies or practices may be more difficult to justify where the reason behind the aim involves corporate interests (such as corporate image) as opposed to health and safety reasons or the protection of other individuals' rights (such as their right not to be discriminated against by reason of their sexual orientation).

The freedom to wear a visible cross whilst in work – Eweida and Chaplain

Ms Eweida, a BA employee, and Ms Chaplain, a nurse working for the NHS, complained in relation to restrictions enforced by their employers, preventing them from wearing visible crosses around their necks while in work. In the case of Ms Eweida, the restrictions applied when carrying out a customer facing role, and in the case of Ms Chaplain, when working with patients.

Eweida In Ms Eweida's case the balancing act was between Ms Eweida's desire to manifest her religious belief, by wearing her cross visibly around her neck, and BA's desire to project a certain corporate image, as set out in their dress code. Whilst the Court found that this was a legitimate aim, it found that the domestic courts had placed too much weight on this objective. In particular, the Court took into consideration the fact that BA had since amended its policy to allow visible wearing of religious symbols, showing that the earlier prohibition had not been of crucial importance.

The Court concluded that, as there was no evidence of any real encroachment on the interests of others, a fair balance had not been struck, and the domestic authorities (the UK) had failed to sufficiently protect Ms Eweida's rights to manifest her religion.

Chaplain By contrast, in the case of Ms Chaplain, whilst taking into the balance Ms Chaplain's desire to manifest her religious belief, the Court found that the Health and Safety concerns which were the reason for the NHS asking Ms Chaplain to remove her cross were inherently of greater magnitude than the concerns held by BA in the case of Ms Eweida. The Court was mindful that hospital managers were better placed to make decisions about clinical safety than a court, particularly an international court who had heard no direct evidence.

Accordingly, the Court concluded that requiring Ms Chaplain to remove her cross had not been disproportionate, and that such interference with Ms Chaplain's freedom to manifest her religion had been necessary in a democratic society.

Sanctions taken against employees a result of concerns about duties which condoned homosexual union – Ladele and McFarlane

Ms Ladele, a Registrar, and Mr McFarlane, a Relate Counsellor, both complained about their dismissal for refusing to carry out duties which they considered condoned homosexuality, and which were incompatible with their beliefs that homosexual relationships are contrary to God's Law. Ms Ladele was subject to disciplinary proceedings, following a refusal to agree to be designated as a Registrar of Civil Partnerships, which culminated in her losing her job. Following a disciplinary investigation, Mr McFarlane was dismissed for gross misconduct on the ground that he had stated that he would comply with his employer's Equal Opportunities Policy with no intention of doing so.

When reaching a decision on both cases the Court considered the balance between the employee's right to manifest their religion, and the policies of the employer, which promoted equal opportunities and required employees to act in a way which did not discriminate against others. The policies had the legitimate aim of securing the rights of others, such as same sex couples, which were also protected rights. The Court considered that differences in treatment based on sexual orientation required particularly serious justification.

In both cases, the Court decided that the right balance had been struck and the margin of appreciation open to national authorities when balancing competing rights had not been exceeded.

What does this decision mean for employers?

Where there are concerns about whether a particular workplace policy or practice places restrictions upon an employee's right to manifest their religion, an employer should consider carefully the reasons behind the conflict to ensure the policy or practice can be objectively justified; which requires it to be in pursuit of a legitimate aim and to be proportionate.

The reason behind the aim is of key importance: where an employer is relying upon health and safety objectives, or where they are seeking to protect the rights of others not to be discriminated against, they will be in a far stronger position, than where the reason behind the restriction is compliance with the corporate aims of the company or in protection of its brand.

An employer who has a uniform policy which contains provisions that may restrict an employee's right to manifest their religion, should carefully consider the rationale behind the policy. It is clear that UK law requires employers to make accommodation for religious beliefs but that may not prevent an employer implementing a particular policy provided they can show they have a legitimate reason for doing so and they have turned their mind to the competing rights.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions