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Is your business free of discrimination?

The European Court of Human Rights (ECHR) has recently made a ruling that may change your view on whether your policies and procedures are justified or whether they constitute religious discrimination.

In particular, it deals with how you should handle discrimination issues around your staff wearing religious jewellery and attire, and where you stand if they complain that you are asking them to perform duties that conflict with their religious beliefs.

In the case of Eweida & Others v the UK, the ECHR has ruled that UK law does not always provide sufficient protection against discrimination for employees who may wish to display their religious beliefs in the workplace. This brings into question whether you as an employer can rely on UK law in isolation as protection against discrimination claims. However, it also gives useful guidance on the best approach to adopt in these situations.

What were the facts of this discrimination case?

In this case, there were two discrimination issues involved. Firstly, Ms Eweida and Ms Chaplin both wanted to wear a visible cross whilst at work, which was in breach of their employers’ respective uniform policies. So the question here was whether they had a right to wear their crosses.

Secondly, another two Claimants said they should not be asked to perform work tasks that conflicted with their religious beliefs. These Claimants were Ms Ladele, a registrar, whose employer required her to perform civil partnerships and Mr McFarlane, a couples counsellor, who was refusing to provide counselling for same-sex couples due to his religious values.

To decide this case, the ECHR considered several established legal principles.

Article 9 of the European Convention of Human Rights provides a right to freedom of thought, conscience and religion. This is a qualified right. This means that a person’s freedom to display their religion or beliefs can be curtailed if to do so is required in certain circumstances.

These circumstances are relatively narrow and include “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”. It is this potential ability to limit a person’s right to display their religion or beliefs that was in question in this case.

UK Law deals with this under the Equality Act 2010 – discrimination on the grounds of religion or belief. In this case the discrimination complained of was indirect discrimination. This means that their employers were seeking to implement a provision criterion or practice (in each case a policy of the employer) that had an adverse effect on people of a particular religion or belief (in each case Christianity). Indirect discrimination is capable of being objectively justified provided that the employer can establish that the discrimination complained of was a proportionate means of achieving a legitimate aim. This is a relatively high test.

The decision

In this case the ECHR made the following findings:

  • Ms Eweida’s was entitled to wear her cross at work. This was because her cross was discrete. In addition, the employer’s argument for not allowing her to wear it was because they wanted to “protect their positive image”. The ECHR found that there was no evidence to suggest that the wearing of the cross would have any negative impact on the employer’s brand.
  • Ms Chaplain was not entitled to wear her cross. This was because she was asked to remove her cross due to health and safety in the hospital ward. The ECHR found that this outweighed her rights under Article 9 and so it was lawful to ask her not to wear it.
  • Ms Ladele and Mr McFarlane’s cases dealt with whether they or their clients had the superior right not to be discriminated against; in other words, were the employees’ rights of religion and belief inferior to the rights of others to not be discriminated against because of their sexual orientation? This is a fine balancing act and the ECHR decided that the right balance had been reached and the employees had not been discriminated against in this case.

It can be seen by the above that each case was decided on the particular facts involved. This decision highlights that justification of indirect discrimination will depend on the particular circumstances of each case. However, it is clear that employers will now be required in many cases to accommodate reasonable requests in respect of uniform.

How does this affect you?

For employers this means that you will have to take great care when enforcing the terms of any policy when an employee makes requests to depart from your policies or procedures for reasons of their religion or belief. Each case should be given careful consideration on the facts of that specific case.

 Getting it right

To make sure you comply with the new law, it is strongly recommended you seek legal advice to ensure your policies and procedures protect both you and your employees and that you make the right decision in each case.

For more information, please contact our Employment & HR team on 01332 340 211.

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