In the recent case of Eweida & Others v UK, the European Court of Human Rights (ECHR) held that the domestic courts had failed to protect Ms Eweida's right under Article 9 (freedom of thought, conscience and religion) of the European Convention on Human Rights.
Ms Eweida worked for British Airways (BA), who prevented her from wearing a visible cross whilst at work. The ECHR overturned previous decisions from domestic courts, which had rejected Ms Eweida's claim that this was indirectly discriminatory, as whilst this policy applied to all employees, she said that it affected her more adversely as a Christian. In contrast to the domestic decisions, the ECHR held that too much weight had been given to BA's uniform policy and desire to project a certain image, whilst not enough weight had been given to Ms Eweida's right to manifest her religion.
In contrast to Ms Eweida's success, three other applicants (Ms Chaplin, Ms Ladele and Mr McFarlane) lost their claims.
Ms Chaplin worked as a nurse and, like Ms Eweida, was prevented by her employer's uniform policy from wearing a visible cross whilst at work. The ECHR decided that an employer like the NHS should be given more latitude when imposing a dress code where the aim of this was to specifically protect health and safety on a hospital ward.
Ms Ladele (a registrar who refused to conduct same-sex civil partnership ceremonies) and Mr McFarlane (a counsellor who was unwilling to provide sexual counselling for same-sex couples) both submitted that their religious views clashed with their employers' obligation to deliver a discrimination-free service. The ECHR held that the margin of appreciation afforded to national authorities when striking a balance between competing rights had not been exceeded in these cases and discrimination had not been made out.
This case may shift the balance slightly in favour of claimants in future cases involving religious discrimination in the workplace. The ECHR stepped back from some of its previous decisions which have been taken as suggesting that Article 9 was barely engaged in an employment context, since workers are not compelled to do a job which conflicts with their religious beliefs. However, it is clear that the employment context is important and that issues such as health and safety may well override the right to manifestation of religious belief, and certainly will do so to a greater extent than promoting a corporate image.
Ultimately, the justification of indirect discrimination will continue to be highly fact specific. However, it is likely that employers will now be required to accommodate reasonable requests in respect of uniform in many cases.