Morgan Lewis

European Court of Human Rights Supports the Right to Wear a Cross at Work

LawFlash/Client Alert

  • published on:

    01/15/2013
  • by:

    Labor and Employment Practice

Court provides clarity for UK employers on wearing religious symbols in the workplace, but difficulties in balancing issues of religion and sexuality remain.

On 15 January, the European Court of Human Rights (ECtHR) handed down its decision in the combined judgment of Eweida and Chaplin v. United Kingdom, [2011] ECHR 738, and Ladele and McFarlane v. the United Kingdom, [2011] ECHR 737.[1]

Significantly, the ECtHR ruled that the UK failed to protect Ms Eweida's right to the freedom to manifest her faith in the workplace under Article 9 of the European Convention of Human Rights because her employer did not allow her to wear a cross with her workplace uniform. However, the ECtHR rejected Ms Chaplin's claim, which was similar in its scope, and drew a distinction between the facts of each case. The ECtHR also went on to reject the parallel appeals of Ms Ladele and Mr McFarlane. The decision in all four cases provides some guidance for UK employers on an employee's rights relating to religion and belief.

Background

Ms Eweida, Ms Chaplin, Ms Ladele, and Mr McFarlane each brought claims against their employers contending that they were discriminated against because of their Christian beliefs.

Ms Eweida worked for British Airways at a check-in desk and requested permission to wear a small silver cross with her uniform as an expression of her faith. This contravened British Airways' uniform policy, which did not allow adornments to uniforms except for "mandatory" religious items that could not be concealed, such as Sikh turbans and Jewish yarmulkes. Ms Eweida brought a claim against British Airways alleging indirect discrimination on the grounds of her religion or belief. Ms Eweida's claim ultimately failed before the Court of Appeal, where it was held that the uniform policy did not put any recognisable group of people at a disadvantage (a requirement for indirect discrimination).

In very similar facts, Ms Chaplin, who worked as a nurse for a National Health Service trust, was told to remove her crucifix from around her neck as her employer claimed that it represented a health and safety risk. The Employment Tribunal agreed with the National Health Service trust, and her claim failed.

Ms Ladele worked for Islington Council as a registrar. In 2005, the scope of her duties was extended to performing civil partnership ceremonies. Ms Ladele objected to participating in civil partnerships due to her Christian beliefs. After being disciplined by her employer following complaints from other staff members, she brought claims alleging direct and indirect discrimination and harassment on the grounds of her religion or belief. The Court of Appeal found that Ms Ladele was not discriminated against and held, amongst other things, that the policy requiring all registrars to perform civil partnerships was justified because of the council's overarching policy of promoting equal opportunities.

Mr McFarlane worked for Relate as a relationship counsellor, where he raised concerns about working with same-sex couples, including querying whether he could be excused from providing such services. Following a disciplinary proceeding, Mr McFarlane was dismissed. He brought claims alleging, amongst other things, direct and indirect discrimination and harassment on the grounds of his religion or belief, but the Employment Appeal Tribunal found that Mr McFarlane's treatment was lawful as it was justified and necessary to ensure that Relate's services were equally available to all regardless of their sexual orientation.

The Court's Decision and Implications

Although the nature of the claims was very similar, the ECtHR drew a distinction between the claims of Ms Eweida and Ms Chaplin on health and safety grounds. In Ms Chaplin's case, the ECtHR found that "[T]he reason for asking her to remove her cross, namely the protection of health and safety on a hospital ward, was inherently of a greater magnitude than that which applied in respect of Ms Eweida." In addition, the ECtHR accepted that the hospital managers were "better placed to make decisions about clinical safety than a court, particularly an international court which has heard no direct evidence". In noting that there were no such health and safety concerns in Ms Eweida's case, the ECtHR concluded that her treatment was unlawful. This suggests that, in future cases where issues of health and safety arise in the workplace and are at odds with a claimant's expression of religion or belief, an employer's first responsibility will be to ensure the health and safety of its workers and customers.

The justification for indirect discrimination will continue to turn on the facts of each case. However, it appears that employers will need to accommodate reasonable requests by employees to wear items or symbols that can be associated with their religion or beliefs unless there is a compelling reason not to do so (most obviously where complying with such a request may give rise to genuine health and safety concerns). Employers should therefore consider reviewing their uniform and or dress code policies accordingly.

The judgment in respect of Ms Ladele's and Mr McFarlane's claims is interesting, as the ECtHR balanced the individual claimants' Article 9 rights (freedom of thought, conscience, and religion) and Article 14 rights (nondiscrimination on grounds including religion) against an individual's right not to be treated differently for reasons of sexual orientation. The ECtHR commented that national authorities have "a wide margin of appreciation" when seeking to strike this balance, and, in both cases, the ECtHR upheld the earlier decisions that the employer had acted lawfully.

In circumstances where the issue of competing rights arises, the ECtHR's decision suggests that employers should place more weight on the requirement that staff should not discriminate against others in the discharge of their work duties or in the performance of their role than on whether such duties or performance may be potentially incompatible with their personal religious beliefs.

Contacts

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[1]. View the decision here. View the press release about the decision here.


Listen to LEPG_LF-Podcast_EuropeanCtHumanRights-RighttoWearCross_15jan13.mp3