The Equality and Human Rights Commission has published a short guide for employers dealing with religion and belief in the workplace, following the recent European Court of Human Rights ("ECtHR") decision in Eweida and Others v UK. In that case the ECtHR upheld a complaint that UK domestic law failed to adequately protect an employee's right to manifest her religion by wearing a cross, but rejected complaints by three other individuals that UK law was deficient in protecting their religious rights.
An individual who considers that the UK government has breached or not taken adequate steps to protect their rights under the European Convention on Human Rights ("ECHR") can bring an action against the UK government in the European Court of Human Rights. They must first exhaust their rights in the UK courts.
Article 9 of the ECHR provides for an absolute right of freedom of thought, conscience and religion. It also provides for a right to manifest religion or beliefs, but this can be limited where the limitations are prescribed by law and necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
Four UK based employees brought claims in the UK Courts that they had suffered indirect religious discrimination at work. Their claims failed, so they each applied to the ECtHR alleging that UK domestic law failed to adequately protect their rights to manifest their religion as set out in the ECHR. The ECtHR heard the applications together.
Ms. Eweida was prevented from wearing a visible cross over her uniform by the (then) uniform policy of her employer, British Airways. Her claim of indirect religious discrimination was rejected by the UK Courts, with the Court of Appeal holding that as there was no evidence of any other person being put at a disadvantage by British Airways' policy, there could be no discrimination, (the "group disadvantage" requirement).
The Court of Appeal also commented that if discrimination had been found, then they would most likely have found that the discrimination was justified, given that for the seven years that the uniform policy had been in place no employee (including Ms. Eweida) had complained about the no visible jewelery rule, that Ms. Eweida had been offered an alternative non-uniformed role whilst her grievance was being considered, and that following her grievance, the uniform policy was revised to allow her to wear a visible cross.
When considering her application, the ECtHR did not consider the issue of discrimination, but only the issue of whether or not the UK courts, in rejecting Ms. Eweidas's claim, had failed in their positive obligation to guarantee her right to manifest her religion. The ECtHR found that wearing a cross was a manifestation of Ms. Eweida's religion, and British Airways' then uniform code had interfered with that manifestation. The ECtHR then went on to conclude that the interference was not justified as the UK Courts had not struck a "fair balance" between Ms. Eweida's Convention rights and those of others. The Court noted in particular that Ms. Eweida's cross was discreet and that other non-standard uniform items (such as turbans and hijabs) had been authorized for other employees with no impact on British Airways' brand or image. While BA's wish to project a certain corporate image was legitimate, the Court of Appeal had given it too much weight.
Shirley Chaplin, Lillian Ladele and Gary McFarlane
Ms. Eweida's application was joined with that of three other individuals: Ms. Chaplin, a nurse who was required to remove her cross on the grounds of health and safety, Ms. Ladele, a registrar who was disciplined for refusing to carry out civil partnership ceremonies, and Mr. McFarlane, a counsellor who was disciplined for refusing to provide psycho-sexual counselling to same sex couples.
All three had had their claims for indirect discrimination rejected by the UK courts: Ms. Chaplin on the same ground as Ms. Eweida, (that there was no evidence that the ban on wearing the cross had or would affect any other persons), and Ms. Ladele and Mr. McFarlane on the ground that any indirect discrimination was justified as a proportionate means of achieving the employer's legitimate aim of providing a non discriminatory service.
The ECtHR considered all three applications separately, and found in each case that although there had been an interference with the individuals' right to manifest their religion, there was no violation of the Convention rights as a fair balance had been struck between their Convention rights and the rights of others.
For Ms. Chaplin, the ECtHR noted that the protection of health and safety in a hospital ward is of great importance and that Convention States are allowed a wide discretion in deciding how to achieve it. For Ms. Ladele and Mr. McFarlane, the ECtHR commented both on the importance to be given to an employer's aim of providing a service on a non discriminatory basis, and on the wide amount of discretion that national Courts have in determining how the rights of different individuals should be balanced, (here, the right to manifest one's religion against the right to receive the same service regardless of sexual orientation).
Impact of the decision
The ECtHR's findings were made against the UK government, rather than against Ms. Eweida's employer, BA, and do not deal with the specific findings of the UK courts in the Eweida case on group disadvantage or other aspects of UK law on discrimination. However, as UK Courts are under an obligation to construe legislation, as far as possible, in a way that is compatible with Convention rights the decision is likely to influence future cases on indirect religious discrimination. The Equality and Human Rights Commission has also published some guidance on the decision and what best practice for employers should be following the decision.
What is a manifestation of religious belief?
The ECtHR took a fairly broad approach to what amounts to a manifestation of a religious belief. Although the act in question must be "intimately linked" to the religion or belief, and not every act which is in some way inspired, motivated or influenced by a religion or belief will constitute a manifestation, there is no requirement to show that the act is required by the religion or belief in question. Whether there is a sufficiently close and direct link between the act and the underlying belief must be determined on the facts of each case. In this case, the ECtHR had no problem in finding that wearing a cross was a manifestation of a belief in Christianity.
The Equality and Human Rights Commission notes that this is a change from the previous view that a practice was only protected if it was required by the particular religion or belief. In its guide for employers, the Commission emphasises that employers are not expected to be experts in religion or belief cases, and should not spend too much time or expense examining the motivation or genuineness of a particular employee's religion or belief. It goes on to state that employers should only question a belief in the most exceptional cases where, for example, the belief is very obscure, appears to be objectively unreasonable, or the sincerity of the belief of an employee is in doubt.
The requirement for "group disadvantage"
The ECtHR did not address the requirement under UK law that a claimant must show "group disadvantage" in order to make out a claim of indirect discrimination i.e. that a group of people with the same religion or belief are put at a particular disadvantage by a provision. However, it emphasized that religious freedom is primarily a matter of individual thought and conscience. This may well encourage Tribunals to take a broad approach to, or even to disregard, the need for "group disadvantage" when considering the preliminary question of whether or not indirect discrimination has been established. The Equality and Human Rights Commission's analysis of the case also makes no reference to the group disadvantage test.
Practically, this means that when deciding cases of indirect religious discrimination the focus will be on whether or not the discrimination can be justified, rather than whether or not the requirement for group disadvantage is satisfied.
Impact on justification
Although the ECtHR was not applying the justification test set out in UK legislation when determining whether or not a "fair balance" had been struck in each of the cases, it is likely that Tribunals will be influenced by the approach of the ECtHR when considering the issue of justification. Employers who wish to prevent employees from wearing religious symbols due to a corporate uniform policy are therefore likely to have a higher threshold for justification if the reason for the policy is to project a corporate image or brand, as opposed to, for example, health and safety requirements.
The decision also marks a departure from the previous line of European authorities which had suggested that it would be very hard for an employer to violate an individual's Article 9 right, given the employee's freedom to resign from that employment. The ECtHR affirmed the importance of the right to freedom of religion and commented that rather than holding that the possibility of changing job would negate any interference with the right, the better approach is to weigh that possibility in the overall balance when considering whether or not the restriction is proportionate.
Please click HERE for a link to the recent Equality and Human Rights Commission publications, (namely an explanation of the judgment in Eweida and a guide for employers on religion or belief in the workplace).