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Emma Bartlett considers the decision of the ECHR in the combined case of Eweida and others.
In light of yesterday's decision, UK employers should take careful consideration when balancing their needs against those of their employees in issues concerning how the employee manifests his or her religious beliefs in the workplace. Employers are advised to revisit policies, such as uniform/dress codes, to check their justification of practices which might prevent employees manifesting their religious beliefs. Greater consideration will need to be given when determining requests where manifestation of religious beliefs are at the root, such as changes to working hours.
The European Court of Human Rights (the ECHR) judgement yesterday in Eweida and others v The UK is of interest to employment law practitioners and employers alike. Until now, there appeared to be a reliable chain of domestic judicial decisions rejecting Ms Eweida's claim against BA.
Ms Eweida is the BA employee who was suspended without pay for refusing to wear her cross under her uniform and brought a complaint of indirect discrimination on the grounds of her religious belief. The Court of Appeal rejected her claim and refused permission to appeal to the Supreme Court. Where was she to go, but Europe? She has now succeeded at the ECHR and the UK government is ordered to pay her compensation on the basis that a fair balance was not struck between her right to freely manifest her religion and those of others (eg BA).
The Court considered four joined applications against the UK Government under the "Convention for the Protection of Human Rights and Fundamental Freedoms" (the Convention). The Convention provides the right to freedom of religion as a fundamental unrestricted human right. However, the way in which an individual manifests that right may be restricted where it impacts others and other rights. Each applicant claimed that domestic law failed to adequately protect their right to manifest their religious belief. In this case, the protection from indirect discrimination under the Employment Equality (Religion or Belief) Regulations 2003 were analysed. The relevant provisions if the claim originated now are those set out, in an amended form, in the Equality Act 2010.
Although the facts are similar, only Ms Eweida's claim succeeded.
The second applicant, a nurse called Ms Chaplin, brought a similar claim as her employer had refused her request to wear a cross on a necklace, which she claimed was a manifestation of her religious belief. Unlike BA though, which refused Ms Eweida's request because it did not conform with their uniform policy which was there to protect its corporate brand, the employer's rejection was for health and safety reasons.
The third applicant, Ms Ladele who was a registrar, had refused to perform same-sex civil partnerships because of her religious beliefs. The employer of the fourth applicant, Mr McFarlane, a sex and relationship counsellor for Relate, doubted that he would provide sexual counselling to same-sex couples, again because of his religious belief that homosexuality was forbidden.
The Court focussed in each case on how wide or narrow a margin of appreciation the employers could have in balancing competing rights. Very much, the image of scales of justice spring to mind. On the one hand the right of the employee to manifest their religious belief and on the other the right of the employer to have, in Ms Eweida's case, a particular uniform policy and protect the company brand or, in the case of the last two applicants, the right to ensure equality of opportunity for all. In this respect, the Court had less sympathy for BA trying to support a corporate image than for the other employers who evoked health and safety and the rights of others.
Although the Court found that the UK's domestic legislation did not interfere with the Convention right to manifest a religious belief, it did find in Ms Eweida's case that a fair balance was not struck. BA had made exceptions to its uniform policy where employee requests related to fundamental manifestations of their religious beliefs, such as turbans and hijabs, and there was no evidence that these had a negative impact on the corporate image. BA had subsequently amended its uniform policy to allow the visible wearing of religious symbolic jewellery without an analysis of the importance to the religion of the request being required. It is arguable that the claim is distinguishable on its own facts. However, I consider it will have a knock on effect for other employers faced with similar considerations.
In conclusion, the implications of the decision will be:
1. The UK government is ordered to pay damages to Ms Eweida for injury to feelings (although a paltry sum) and the majority of her legal costs. Interesting how these were calculated.
2. Domestic courts will need to interpret the Equality Act in line with this decision. There will no doubt be other cases where the facts are similar to those in Eweida. In my view the health and safety grounds of Ms Chaplin's employer could be open to challenge in the domestic courts too. There was no challenge before the ECHR of these by Ms Chaplin; a "health and safety" defence should not be seen as a "get out of jail free" card for employers.
3. The legal issues in recent cases on Sunday working bear resemblance to those in the claims before the ECHR. The ECHR was concerned with whether a fair balance was struck in limiting an individual's right to manifest their religious beliefs. In Ms Mbs v London Borough of Merton, reported last month, the complainant claimed that Sunday working was against her core belief and not working on Sundays was a manifestation of her Christian belief. Her claim failed and one of the factors the Employment Tribunal considered was that not working on a Sunday was not a "core component of the Christian faith". In the dissenting judgement of the EHCR in Eweida, it was noted that Christianity is not prescriptive and allows for many different ways of manifesting a commitment to the religion. The burden of proving indirect discrimination is more difficult as a result, at least prior to the Eweida decision. It is likely in these types of cases where employees are seeking not to work specific hours because of their religious belief that a narrower margin of appreciation will be given to employers who are balancing their business needs against those of the individual in these circumstances, ie less weight than before will be given to a corporate need than to the employee's religious belief.
This article was written by Emma Bartlett.