A recent case in the European Court of Human Rights (ECtHR) questions whether UK law does enough to protect people who manifest their beliefs at work.
Chaplin v Royal Devon & Exeter NHS Foundation Trust
Mrs Shirley Chaplin was a clinical nurse working in geriatric care. As a Christian, Mrs Chaplin had worn a crucifix on a chain around her neck since her confirmation in 1971 and throughout her many years with the Trust. However, in 2007 the Trust introduced a new uniform, which meant wearing scrubs with a v-neck tunic. Consequently, the chain and cross became more visible and could potentially hang down onto or be grabbed by a patient.
The Trust’s policy, in line with Department of Health guidance, was that necklaces could not be worn, to minimise the risk of cross infection and reduce the risk of injury when handling patients. Mrs Chaplin was, therefore, asked to remove her chain and cross, but she refused. Management suggested instead that the she wear a turtle-neck T shirt under her uniform and over the cross and chain, but the claimant insisted that the visible wearing of the crucifix was an essential part of her religious faith. A compromise could not be found and Mrs Chaplin was moved to a non-nursing position.
Mrs Chaplin brought claims of direct and indirect discrimination against the Trust but they failed. There was no direct discrimination since the hospital's stance was based on health and safety rather than religious grounds. As regards the complaint of indirect discrimination, the employment tribunal ruled that under UK law a claimant has to show that the employer’s policy disadvantages not just themselves but also other people with the same beliefs; this the claimant had failed to do. In any event, the tribunal said if there had been indirect discrimination it would have been justified, as the policy pursued the legitimate and proportionate aim of protecting the health and safety of staff and patients as the chain and crucifix may cause injury if an elderly patient pulled on it.
Having failed in the claim against her employer, Mrs Chaplin is now challenging UK law itself by bringing her case (alongside others) to the ECtHR. Her complaint is that UK domestic law failed to adequately protect her right to manifest her religion, contrary to the European Convention of Human Rights. Her case is being heard together with that of Ms Eweida, a British Airways employee, who was also not allowed to visibly wear her cross as part of BA’s uniform policy.
The European Court of Human Rights
The case was heard on 4th September 2012 but a judgment is not expected for several months.
Mrs Chaplin’s representatives are claiming that it should not be necessary to show any “group disadvantage” when bringing a claim of indirect religious discrimination. If this argument succeeds then UK religious discrimination law will move closer to the model seen in the US and Canada, where employers have a duty of “reasonable accommodation” of religious beliefs on a case by case basis. This is similar to the “reasonable adjustment” approach taken to disability.
Nevertheless, even if that argument succeeds, employees will not have an absolute right to manifest their beliefs in the workplace. Employers will still be able to justify policies that impinge on religious beliefs provided the policy exists for a good reason and, weighing the employer’s needs against the impact on the individual, is proportionate. So a case like Mrs Chaplin’s might not stand any better chance of success in a tribuna,l as a hospital could still argue that health and safety concerns should take priority over an individual’s wishes.