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Religious discrimination and the ability to wear religious symbols in the workplace

31st January 2013

The European Court of Human Rights has given a ruling relating to the wearing of religious symbols in the workplace. The case concerned four individuals from the UK who had all had problems at work due to treatment they believed related to their personal religious beliefs. The leading case was that of Nadia Eweida. She had problems at work when her employer, British Airways, had refused to allow her to contiue wearing a visible crucifix at work. The case proceeded through the UK courts, reaching the Court of Appeal in February 2010. 

British Airways had a uniform policy which banned the wearing of visible items of adornment around the neck. Ms Eweida left work in October 2006 after being told that she must conceal the small crucifix she wore rather than wear it visibly outside her clothing. Ms Eweida took a claim to the Employment Tribunal alleging that her employer had discriminated against her on grounds of her religious belief. She lost in the Employment Tribunal, and also lost her appeal in the Employment Appeals Tribunal (EAT). The EATruled that the policy which was used to effectively prevent her wearing the crucifix visibily was not actually discriminatory because Christians do not "generally" consider the wearing of the crucifix to be a requirement of their faith. The argument that British Airways had used was that the activity was a breach of a legitimate uniform policy (after clear public concern on this case British Airways has subsequently altered its policy). 

In taking the case to the European Court of Human Rights (which is very rare for employment law cases, and this court should not be confused with the European Court of Justice, which gives judgments on matters of EU law), Ms Eweida argued that there had been breaches of Articles 9 and 14 of the European Convention on Human Rights, and that the UK courts had failed to give effect to her rights under those Articles.

Article 9 of the Convention provides that there is a right to freedom of thought, conscience and religion or beliefs, but a qualified right to manifest one's religious beliefs (such as by wearing religious symbols). This right is subject only to "such limitations as are prescribed by law and are 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."

In considering this right the European Court on Human Rights ruled that an individual does not need to establish that a certain act (such as the wearing of a particular item) is a "requirment" of their particular religion for the protection of Article 9 to be applicable. The court noted that the wearing of the crucifix was clearly a manifestation of Ms Eweida' religious beliefs and so was protected by Article 9, and therefore that British Airways refusal to allow her to wear it visibly was an interference with that right. The court ruled that the UK courts had failed to give proper balance to the measures taken by British Airways and had placed too high an importance on their uniform policy in rejecting the claim made by Ms Eweida.There was no evidence that other employees that wore religious clothing such as turbans or the hijab had any negative impact on the image of British Airways or its brand, and there was no real evidence of any encroachment on the rights of other people through Ms Eweida wearing the small cricifx visibly. The European Court therefore ruled that the UK government had failed to give sufficient protection of Ms Eweida's Article 9 rights.

In the joined case of Shirley Chaplin, a former nurse had been asked by her employer, the Royal Devon and Exeter Foundation NHS Trust, not to display her crucifix necklace. She had been instructed not to wear it outside her clothing on the basis of it posing a potential health and safety risk. The European Court on Human Rights upheld the decision of the UK courts to reject her claims of religious discrimination. The Chaplin case indicates that the employer had a legitimate reason for refusing to allow her to wear the cross outside her clothing on the grounds of health and safety on the wards in which she worked. In this case it ruled that the intereference with Ms Chaplin's rights was proportionate and justified in the circumstances.

The Eweida case highlights the fact that employers should not be too rigid for the sake of it in dealing with a uniform policy, and should be prepared to accommodate reasonable requests made by staff in relation to apparent divergence from uniform, particularly where the request is to wear a religious symbol which, espectially if it is discreet and does not pose a clear health and safety risk.

If you need any help or advice on the issues raised in this item please do not hesiatate to contact us at Hallett Employment Law Services.






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