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Balancing religion in the workplace

Balancing religious and philosophical needs of employees is becoming a challenge for employers, particularly as recent case law suggests that political beliefs may amount to being a philosophical belief. Therefore the pertinent question is – how far do employers have to go to accommodate an employee’s religious or philosophical belief?

The European Court of Human Rights (ECHR) recently dealt with this question in the high profile case of Eweida, Chaplin, Ladele and McFarlane.

Background

Ms Eweida’s and Ms Chaplin’s complaints related to restrictions placed by their employers on their wearing of a cross visibly around their necks. Ms Ladele and Mr McFarlane complained about sanctions imposed on them by their employers as a result of their concern about performing services which they considered to condone homosexual union.  All the complainants were Christian.

Ms Eweida

Ms Eweida had been an air hostess with British Airways (BA) since 1999. BA had in place a uniform policy which set out that all religious accessory and clothing should be covered at all times unless it was approved by management. Until 20 May 2006, Ms Eweida wore a cross that was concealed under her clothing, after this date she started wearing the cross openly, BA refused to grant approval. On 20 September 2006 she refused to conceal the cross and was sent home without pay until such time as she complied with her contractual obligations.

In mid-October 2006 BA changed their policy to allow employees to display religious and charitable symbols when authorised. The cross and the star of David were given immediate authorisation. Ms Eweida returned to work, however BA refused to pay her for the loss of earning during the period she had chosen not to come to work. Ms Eweida lodged a claim for indirect discrimination on the grounds of religion or belief.

Ms Chaplin 

Ms Chaplin was a qualified nurse who worked on a geriatric ward at the Royal Devon and Exeter NHS Foundation Trust. The hospital uniform policy was, jewellery if worn must be discreet. If an employee wished to wear a particular type of clothing or jewellery they would need approval from management, and this approval would not be unreasonably withheld. In 2007 new uniforms were introduced, which included a V-neck tunic. Ms Chaplin sought approval to wear her cross around her neck; this was refused on grounds of health and safety – patients could pull on the chain and if worn in any other manner it would pose a risk to patients during the performance of her clinical duties.

Ms Ladele

Ms Ladele, a registrar, held the view that marriage is the union of a man and woman for life, and sincerely believes that same-sex civil partnerships are contrary to God’s law. She was employed by London Borough of Islington (the Borough), who had a “Dignity for All” equality and diversity policy in place.

In 2005 the Borough decided to designate all existing registrars of births, deaths and marriages as civil partnership registrars. Initially Ms Ladele made informal arrangements with colleagues so she would not have to conduct civil partnerships; however, in 2006 two of her colleagues complained that her refusal was discriminatory. The Borough asked her to commence performing the civil partnerships and she refused. Ms Ladele was later disciplined for her refusal and the Borough asked her to sign a new contract where she was under an obligation to deal with straightforward signings of the civil partnership register and administrative work connected with civil partnership, but was not required to conduct ceremonies.

Ms Ladele brought claims of direct and indirect discrimination on grounds of religion or belief and harassment.

Mr McFarlane

Mr McFarlane, was a counsellor, employed by Relate Avon Ltd (“Relate”), a national private organisation which provided confidential sex therapy and relationship counselling service. Relate and its counsellors are members of the British Association for Sexual and Relationship Therapy (BASRT). Relate had in place codes of ethics and an equal opportunities policy in place.

Mr McFarlane held a deep and genuine belief that the Bible states that homosexual activity is sinful and that he should do nothing which directly endorses such activity. At an initial disciplinary hearing he confirmed that he would comply with the company policies including working with all their clients. He continually refused to work with same sex or bi-sexual clients and as a consequence he was eventually dismissed for gross misconduct.

Be brought claims of direct and indirect discrimination on grounds of religion and belief, unfair dismissal and wrongful dismissal.

ECHR decision

All bar Ms Eweida’s claim were dismissed by the ECHR on the following basis:

–       Ms Chaplin’s approval was legitimately refused on health and safety grounds.

–       Both Ms Ladele and Mr McFarlane’s employers required to balance the right to manifest a religious belief which entailed disapproval of homosexuality and the right not to suffer discrimination on the grounds of sexual orientation.

–       In Ms Ladele case, the Borough’s legitimate aim of providing a non-discriminatory service justified their decision to insist all registrars conduct civil partnership ceremonies.

–       Another factor to consider was choice, Mr McFarlane, had gone into the job knowing that he was required to offer psychosexual counselling to same sex couples and that this conflicted with his religious belief.

Ms Eweida’s case was upheld on the grounds that BA’s wish for corporate uniformity did not justify a rule which affected an employee’s freedom of expression.

Conclusion

It is clear from this decision that as an employer, you will: 

1.    No longer be able to seek solace from accommodating compulsory faith symbols, you will also have to consider whether “optional symbols” can be accommodated. If you decide you cannot, you need to be able to justify the reason;

2.    Need to think through dress policies more carefully, and continue to accommodate reasonable requests to manifest a religious or philosophical belief; and

3.    Need to continually assess the impact of policies on particular groups.

Finally, do not forget the principles of this case apply to all employees who follow a religion or belief which is “worthy of respect in a democratic society”, not just Christians.  

If you need advice in managing a discrimination complaint or of you feel that you have been discrimination on the ground of your religion and belief please contact a member of our team on 01133 50 40 30 or at hello@scesolicitors.co.uk for a free initial consultation


Samira Cakali

Solicitor Advocate LLB (Hons), Higher Rights (Civil) at SCE Solicitors
Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.
Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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