UK: Significant Judgments In Religious Belief Cases - Review Your Dress Codes!

The European Court of Human Rights (ECHR) recently gave its decision in the cases of Eweida and Chaplin v UK.

The ECHR judgment makes it clear that whilst the right to manifest religious belief at work is protected, that right must be balanced against the rights of others. Where an individual's religious observance impinges on the rights of others, some restrictions can be made on the right to manifest religious belief - in practice this has tended to arise where an employee's religious beliefs run into conflict with the sexual orientation of other people, but the judgment is of particular relevance for organisations which have in place dress codes or uniform policies, especially if these prohibit the wearing of visible jewellery.

Background

The cases before the ECHR related to Article 9 of the European Convention on Human Rights.

"Everyone has the right to freedom of thought, conscience and religion".

Article 9 goes on to provide that the right includes the right to manifest one's religion or belief in worship, teaching, practice or observance. However, Article 9 is a qualified right which means that it can be infringed if such action is justified, necessary and in the interests of legitimate objectives.

Ms Eweida and Mrs Chaplin, both Christians, brought religious discrimination claims against their employers after they were prevented from visibly wearing a cross at work. It is important to mention at the outset that there is no UK law which prevents the wearing of religious jewellery at work and these cases arose because of the employers' specific dress code and uniform policy.

• Ms Eweida worked as a member of the check-in staff for British Airways and its uniform policy prohibited the wearing of any visible items of jewellery/adornment. There were certain exceptions to the policy, however, and mandatory religious items (for instance, the Sikh turban) could be worn visibly if they could not be concealed. The purpose of the uniform policy was for British Airways to project a certain corporate image.
• Mrs Chaplin worked as a nurse for the Royal Devon & Exeter NHS Foundation Trust. Its uniform policy prohibited the wearing of most items of jewellery (but wedding bands were permitted for example) in order to minimise the risk of cross-infection and to prevent disturbed patients seizing or pulling on items of jewellery. Accordingly, Mrs Chaplin was not allowed to wear a visible cross on a chain at work.

The Employment Tribunal dismissed both women's claims that they had been discriminated against because of their religious beliefs. As a group, Christians were not at a "particular disadvantage" by not being permitted to wear a cross at work as it was not a requirement of the Christian faith to wear a cross. In the case of Mrs Chaplin, the uniform policy could also be objectively justified as the Trust had the legitimate aim of protecting the health and safety of staff and patients and the restriction in the dress code was a proportionate way of achieving this. The EAT and Court of Appeal subsequently upheld the Employment Tribunal decisions.

European Court of Human Rights 

Ms Eweida and Mrs Chaplin then took their cases to the ECHR on the basis that the UK government had failed to protect their right to hold and manifest their religious beliefs in accordance with Article 9.

In relation to Ms Eweida, the ECHR held (by a majority) that her right to manifest her religious belief by visibly wearing a cross at work had been infringed. A fair balance had not been struck between Ms Eweida's Article 9 right and British Airways' right to project a certain corporate image, even though that objective was a legitimate one. The ECHR took into account that, because of the exceptions in the uniform policy, some employees had been able to wear items of religious clothing without any negative impact. Significantly, in 2007, British Airways had also changed the uniform policy to permit the display of religious and charity symbols which (in the ECHR's view) indicated that the earlier prohibition had not been of crucial importance. Ms Eweida was awarded €2000 compensation by the ECHR.

As for Mrs Chaplin, the ECHR held unanimously that there had been no violation of Article 9. The reason for her not being permitted to visibly wear a cross was the protection of health and safety on a hospital ward and this was of much greater importance than an individual's right to manifest their religious belief through visible jewellery. Hospital managers were better placed than a court to make decisions about clinical safety. Accordingly, requiring Mrs Chaplin to remove her cross was justified and not disproportionate. 

What does the judgment mean for the retail and leisure industry?

Retailers and leisure companies will often require a high standard of dress and personal appearance, indeed, many fashion retailers require their staff to wear their own products. The judgment does not mean that dress codes will no longer be permitted, but rather that they need to be sensible and proportionate and be for a good reason.

Restricting someone's right to manifest their religious belief through visible jewellery may be justified, depending on the circumstances and the reason for the restriction but there's no doubt that, as a result of these cases, it is best to bear in mind that a restriction on jewellery for reasons of corporate image will probably not be justified, whereas a restriction which arises from a clear health and safety requirement is likely to be.

What this all means is that you should review your dress codes and uniform policies to identify where there are any restrictions on wearing jewellery or other religious symbols and to re-assess the reason for the restriction to make sure it's sound. Otherwise you might find yourself in the same position as British Airways – and it's a sobering thought that it was way back in 2006 that the initial dispute with Ms Eweida first arose and it's five years since British Airways changed its dress code policy.

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.