The Eweida case started as a claim by a British Airways' employee that their refusal to allow her to wear a visible cross with her uniform was religious discrimination. The employee claimed that the refusal to allow her to wear a cross at work as part of its "no jewellery" policy put her and other Christians at a disadvantage. The indirect religious discrimination claim in the UK failed for two reasons: because it could not be shown that the ban put Christians "as a group" (as opposed to the individual employee) at a particular disadvantage, and also because the rule was objectively justified as a proportionate means of achieving a legitimate aim - BA's desire to maintain a brand image. BA subsequently changed its policy to allow staff to display a faith or charity symbol with their uniform. However, the case was taken to the European Court of Human Rights (ECHR) with three others and, last year, the Prime Minister pledged that if the result of the case went against Miss Eweida, then the law would be changed to "make it clear that people can wear religious symbols at work".
In the event, Miss Eweida has won her case, the ECHR deciding that the importance of her right to manifest her religion outweighed the employer's interest in maintaining its corporate image. The cross was discreet and did not detract from her professional appearance. There was no evidence that the wearing of other, previously authorised, clothing by employees (such as turbans) had any negative impact on the brand or image; and the fact that BA had felt able to change its uniform policy subsequently meant that the earlier ban was not of crucial importance.
The reason for a ban on jewellery in the Chaplin case was very different: it was for the protection of health and safety on a hospital ward. The ECHR regarded this as "inherently of greater magnitude" than the employer's justification in Eweida. The decision to ban jewellery in this case was not disproportionate; clinical managers were better placed to judge what was necessary in a hospital setting than the Court.
As a result of the decision in Eweida, the Government will presumably not now legislate, but employers will need to continue to be careful with dress codes and other workplace policies to ensure that they accommodate the religious beliefs of staff, unless there are compelling reasons not to do so. It is worth noting that the ECHR confirmed that protection does not only apply where the manifestation is a mandatory requirement of the religion or belief; it will cover any case where there is a sufficiently close link with the underlying belief.
Ladele and McFarlane
The Ladele and McFarlane cases were more complex; raising the issue of whether an employer can refuse to accommodate the manifestation of a discriminatory religious belief. On both Ladele (where the Court of Appeal had confirmed that religious belief did not exempt a registrar from civil partnership duties) and McFarlane (where the EAT upheld a tribunal's decision that a Relate counsellor had not been discriminated against where he was dismissed for refusing to provide services to same-sex couples), the ECHR accepted that there is a wide "margin of appreciation" when balancing competing human rights. The European Convention on Human Rights expressly recognises that limitations on the right to manifest religious beliefs are allowed in order to protect others' rights.
Here the employers had adopted their policies specifically in order to provide a service without discrimination. The ECHR considered that the employers had not exceeded the discretion open to them in taking the actions that they had; as a result, the claims failed.
Although the decision backs the UK verdict that employees had no right to refuse to perform duties because they conflict with their religious beliefs, they should be approached with a degree of caution because of the specific public nature of the functions of the employers. At Tribunal stage in the Ladele case, the Council failed the indirect discrimination "proportionality" test, on the basis that the employee's religious convictions could have been accommodated. However, on appeal, the EAT decided that the employer's legitimate aim was not promoting effective civil partnership arrangements but the considerably wider aim of being an employer committed to equal opportunities. On that basis, the Council's action was proportionate. Similarly, in the McFarlane case, although the employer is a private sector body, its public stance on equal opportunities was clearly a very relevant factor in the domestic decision.