Religion at work: will Eweida ruling be a hard cross to bear?Add To My Clippings Alt Text

Judgment was today given by the European Court of Human Rights (“ECHR”) in the combined cases of Eweida and Chaplin, and Ladele and McFarlane. These cases all dealt with the scope of employees’ rights to manifest their religion and belief in the workplace. They have received significant media attention over the years.

The decisions

In a complicated and lengthy judgment, the ECHR found in favour of Mrs Eweida and awarded her €32,000 in compensation (although just €2,000 of that was for injury to feelings, the rest was costs). It found against all the other claimants.

In Mrs Eweida’s case, the ECHR ruled that any individual manifestation of a religious belief should be protected - even if it is not shared by others. The employer’s aim of maintaining a professional corporate image was a legitimate one, but this had been given too much weight by the UK courts when balanced against her right to wear a visible cross showing her beliefs. The ECHR found against Mrs Chaplin because she was banned from wearing a cross for a different reason, health and safety, holding that this reason was of “inherently greater magnitude” than in Mrs Eweida’s case.

Ms Ladele and Mr McFarlane lost their claims for similar reasons. Their rights to manifest their beliefs by not condoning homosexuality were outweighed by their employers’ aims of providing a service without discrimination.

For more detail on the ECHR’s decision, read our knowledge article.

Comment

It’s a weird day when the right wing of the Conservative party are given something to celebrate by the European Court of Human Rights, but today is one of those days...

This case was about defining the scope of a human right. The ECHR has confirmed a broad definition of article 9 of the European Convention on Human Rights, which guarantees freedom of thought, conscience and religion. Their judgment suggests that the manifestation of any genuine individual belief is capable of protection. It is not necessary for that belief to be shared by a group - it simply needs to be “intimately linked” to the religion or belief.

The immediate impact of this case will be felt in the public sector. Judgments of the ECHR are directly enforceable against public sector employers, meaning that public sector employees now have a right under the Human Rights Act 1998 to manifest an individual religious belief in the workplace and to do so in a way that might not be shared by other followers of that religion.

The position with the private sector is more complex, as claims under the Human Rights Act cannot be made directly against a private sector employer. However, this does not mean that such employers are immune. Tribunals are obliged to interpret UK law in line with human rights, meaning a private sector employee can bring a claim for discrimination and argue that the law now needs to be interpreted in line with the ECHR decision. Indirect discrimination specifically requires that a group suffers a disadvantage, yet the human rights caselaw now does not. Trying to fit this square peg into a round hole might prove impossible, and any litigation on the subject would almost certainly be complex and lengthy for employers.

This all adds to the existing uncertainty over the sorts of belief that are covered by discrimination law and human rights. Is the ECHR decision confined only to religious belief, or are broader philosophical beliefs included too? Recent years have seen an increasing diversity of beliefs that are protected under UK discrimination law (look here for more of our thoughts on this issue); beliefs in spiritualism, anthropogenic climate change and public service broadcasting have all been covered. The already broad interpretation of what a belief is, combined with a new broader freedom to manifest any genuinely held individual belief, is sure to create difficulty for employers.

The subjectivity over religious items presents further problems. What if an employee wants to wear a more extreme religious symbol? As shown by the decision in Mrs Chaplin’s case, employers will still be able to justify preventing employees from wearing inappropriate items where really necessary, but it is uncertain precisely where that boundary lies. In its decision, the ECHR referenced how Mrs Eweida’s cross was “discreet” – would its decision have been different had her crucifix been eight inches big and gothic–styled?

The better news is that the decisions in Ladele and McFarlane will provide some comfort to employers who are grappling with the issue of a clash of rights in the workplace, such as religious views versus sexual orientation. The aim of protecting the rights of others not to be discriminated against has been upheld as a valid justification for not accommodating an employee’s religious views, even where the effect on the employee is that of losing their job. 

Employers really need legislation that will deal with the ECHR ruling and clarify the scope of religion and belief discrimination. We have suggested an alternative “duty to accommodate” religious beliefs in a previous journal article. Such a duty would be practical and easy for employers to understand, and provide protection for genuine religious beliefs while allowing employers to justify not making accommodations where this is necessary. It is a relatively simple idea that might just work.

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