Religious discrimination after Eweida
On 15th January 2013 British Airways lost the claim brought by Ms Eweida to the European Court of Human Rights. The company refused to allow her to wear a cross when serving the public in uniform and in so doing breached the right to manifest her religious belief. At the same time the same court held that three other claimants lost similar claims. One was a nurse who also wanted to wear a cross with her uniform and the other two provided services to the public, one as a Registrar and the other as a counsellor. Both objected to providing a service to same sex-couples because of their religious convictions.
Decisions of the ECHR are important because under the terms of the Human Rights Act UK courts and tribunals have to take their decisions into account when interpreting the law and it is also unlawful for our courts to act in way that is incompatible with the European Convention of Human Rights.
The right to religious freedom under Article 9 of the European Convention of Human Rights consists of two parts. The first is to freedom of thought, conscience and religion. The right to think and believe what we wish is unqualified. The right to manifest those beliefs and thoughts is, however, qualified by any limitations which are ‘necessary in a democratic society’ in the interests of public safety, or to protect public order, health or morals or the rights and freedoms or others. It is the interpretation of these qualifications that usually govern issues arising in the workplace and which determined each of these cases. In English law this balance is achieved by the requirement of reasonable justification of a legitimate aim for any act that would otherwise be one of indirect discrimination.
The reason Ms Eweida won is that in the view of the majority of judges the commercial aim of British Airways, to preserve its corporate image was outweighed by the public interest in permitting toleration and sustaining pluralism
and diversity. The judges also noted that the cross was “discreet”. The ECHR considered the English courts had not struck a fair balance between these two interests. It is relevant that the commercial aim of the airline is not an interest specifically recognised by Article 9.
A different view was taken in the other three cases because of the reasons given by the employers. In the case of the nurse the hospital argued it was to reduce the risk of injury when handling patients. In the other two cases refusal to allow the claimants to decline to provide services to same sex couples was to uphold its policy of providing services in accordance with its equal opportunities policy and not to allow employees to discriminate against others. Both of these reasons outweighed the genuinely held religious views of the claimants. Also both reasons came within the specific wording of the permitted exceptions in Article 9 (protection of health and the rights of others).
Implications of the decision include the following:
It will be easier to defend dress codes affecting religious practices on health and safety grounds than purely commercial grounds.
If restraints are imposed on employees’ manifesting religious beliefs it is safest to do this for reasons within the specific terms of Article 9 (2).
It remains unclear what commercial grounds will prevail in the future but it is probable some will.
Most courts and tribunals will support employers’ decisions preventing manifestations of belief if the ban is to uphold an equalities policy.
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.