…In many situations, but not all, says the European Court of Human Rights in Eweida & Others v UK.
You may well remember from news coverage over the last couple of years of the claims made by Ms Eweida, Ms Chaplin, Ms Ladele and Mr McFarlane. All claimed to have been discriminated against on religious grounds and found themselves taking their claims to the European Court of Human Rights (ECHR). The four had made individual applications to the ECHR after losing separate employment tribunals, but their cases were heard together. Each claimed that they had been discriminated against because of their Christian beliefs and their freedom of religion in the workplace restricted.
Ms Eweida worked for British Airways and Ms Chaplin as a geriatric nurse. Both had sought to wear visible crosses in breach of their employers' respective uniform policies. Ms Ladele was a registrar, whose employer required her to perform civil partnership ceremonies. Mr McFarlane provided counselling services for Relate. He was unwilling to provide sexual counselling for same sex couples.
Article 9 of the European Convention on Human Rights provides that there is a right to freedom of thought, conscience and religion, but a qualified right to manifest one's religion or beliefs. This is subject to 'only 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 this instance the European Court of Human Rights essentially departed from previous case law and held that where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would remove any interference with the right, the approach at the European Court level is to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate.
The Court held that the domestic Courts had conferred too much weight to British Airways' desire to project a certain image. Ms Eweida's cross was discreet and there was no evidence that the wearing of items such as turbans and hijabs by other employees, had any negative impact on British Airways' brand. In the circumstances, the State had breached it obligations under Article 9 in failing to protect Ms Eweida's rights.
Ms Chaplin, Ms Ladele and Mr McFarlane however, were not so successful.
In Ms Chaplin's case, the Court held that the importance of her being permitted to demonstrate her religion by wearing the crucifix was weighed in the balance with the protection of health and safety on a hospital ward. The Court held that the protection of health and safety outweighed her right to wear her crucifix and hence, there had been no breach of her Article 9 rights.
In respect of Ms Ladele and Mr McFarlane, the Court has previously held that differences in treatment based on sexual orientation, require particularly serious reasons by way of jurisdiction. Did their beliefs about same sex relationships give them the right to refuse to perform certain elements of their roles, even if their colleagues were prepared to ensure that the service was still provided? The Court commented that national authorities have a wide margin of appreciation when it comes to striking a balance between competing Convention rights. The margin of appreciation was not exceeded by either case and therefore their claims failed.
Comment: We would suggest that this decision is a warning to employers to review their policies on how they handle religious views in the workplace. Employers need to make sure they strike a balance between corporate requirements and duties, and the employer's right to practice and express their religion.
Any organisation that bans jewellery must have a legitimate reason for the ban if it amounts to indirect discrimination. That could be health and safety risks, as in the case of Ms Chaplin, or where employees are operating potentially dangerous machinery.
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