Manifesting Religion in The Workplace

There has been a broad swathe of news coverage this month concerning the religious discrimination case of Nadia Eweida, a Coptic Christian who was told to remove her crucifix whilst working at her job as a check in operator for British Airways (BA). Mrs Eweida took her case to the European Court of Human Rights (ECHR), which in January of this year made a landmark ruling that the action by British Airways constituted discrimination

The dispute between Mrs Eweida and her employers began in 2006 when she was asked to cover up a piece of jewellery that depicted a Christian cross, and when she refused to do so, was put on unpaid leave. Wearing the jewellery outside her uniform contravened BA’s uniform policy on jewellery with respect to the position occupied by Mrs Eweida, and she was offered the opportunity to move to a different position where she would not be required to cover up the jewellery but she refused.

When the case hit the media, accusations of double standards were levelled at BA, as Sikh and Muslim employees were not prevented from wearing religious garments at work. The reason given was that they were impractical to cover up and whilst the donning of certain garments is a requirement in some faiths, the British national carrier did not believe that the crucifix was necessary in the same way for Christianity.

Whilst BA did change its policy a year later to allow employees to openly wear a symbol of faith ‘on a chain,’ Mrs Eweida still took her case to an employment tribunal, which cited the original ruling from BA as a form of discrimination against Christians. Mrs Eweida was offered an out of court settlement but refused it and eventually lost her case. After unsuccessful appeals to the Employment Appeals Tribunal and the Court of Appeal, as well as a refusal by the Supreme Court to hear her case, Mrs Eweida joined forces with three other religious discrimination claimants in September 2012 and took her case to the ECHR.

When she refused to take the cross off, [Shirley Chaplin] was transferred to a desk job by Royal Devon and Exeter NHS Trust Hospital.

The decision by the ECHR in January of this year to find that Mrs Eweida’s rights had been violated under Article 9 of the European Convention of Human Rights (the right to freedom of thought, conscience and religion) came as a surprise to many – particularly as it was the first defeat for the UK under Article 9. The ECHR overturned the UK court rulings against her on the basis that in the balancing act between Mrs Eweida’s desire to manifest her religious beliefs and BA’s wish to project a certain corporate image, the latter had been given too much weight. Even more controversial has been the finding by the ECHR that whilst Mrs Eweida had suffered discrimination, the other three claims that accompanied hers had not.

The other cases were those of Shirley Chaplin, Gary McFarlane and Lillian Ladele. Chaplin’s discrimination claim was based on her being an NHS nurse banned from wearing a cross on health and safety grounds. When she refused to take the cross off, she was transferred to a desk job by Royal Devon and Exeter NHS Trust Hospital. Chaplin had worn the crucifix for 30 years and only encountered problems when the staff uniforms where changed to a V-neck in 2007. It was found that her religious rights were outweighed by the health and safety concerns put forward by her employer, for example that a disturbed patient might make a grab for the crucifix or it could fall into an open wound. In the cases of McFarlane – a counsellor – and Ladele – a registrar –both claimants asserted that they could not deal with same sex couples in the course of their work as a result of their religious values and both were dismissed.

Whilst equality experts have pronounced the victory in Mrs Eweida’s case to be a triumph of common sense, concern has also been expressed that in allowing her circumstances and not the other three, the ECHR risks creating a hierarchy of rights. Interestingly, the case also caused some division between the ECHR judges hearing it – whilst the majority finding in Lillian Ladele’s case was that there was no discrimination in comparison to a registrar with no religious objection to same-sex unions, one of the minority judges highlighted that “a combination of back-stabbing by her colleagues and the blinkered political correctness of the Borough of Islington (which clearly favoured ‘gay rights’ over fundamental human rights) eventually led to her dismissal.”

For employers, the ECHR findings essentially create a situation in which it is becoming increasingly difficult to refuse an employee’s request to wear a religious item, unless there are clear health and safety grounds that would justify that refusal. The Eweida case clearly highlights the need to have a tightly drafted, unequivocal workplace policy covering this area that takes into account recent developments. In addition to this there has been some suggestion that UK discrimination laws are inadequately equipped to deal with religious discrimination and should be amended so include a duty to make adjustments to accommodate religion, as is the case in the US and Canada.

With respect to the implications of the cases of McFarlane and Ladele, it is clear that a company can force staff to comply with what is essentially a reasonable workplace policy, even if this conflicts with their religious beliefs. Those religious beliefs can be overridden where there is a cause with a higher priority – such as ensuring that gay people receive equal treatment in the provision of services such as counselling and administering civil partnerships. Another recent religious discrimination case, fresh from the Employment Appeals Tribunal, also reflects a reasonable workplace policy winning out on the balancing of interests. Mba v Mayor and Burgesses of the London Borough of Merton concerned a council policy that required Ms Mba to work Sundays at a children’s home. In this case the tribunal felt that the policy of providing continuous care for the disabled children at the home overrode Ms Mba’s religious needs.

For now the path laid by the ECHR closes no doors; the individual has a right to manifest their religion against the rights of an employer – unless there is a good reason not to, such as health and safety – but not against the rights of individuals. Whilst Christianity triumphed over BA it did not triumph over gay rights. However, although three of these four cases were not decided in favour of religious groups, the way has been left open for more challenges like Nadia Eweida’s to be successful in future.