In Eweida and others v the United Kingdom, the Strasbourg court has concluded that BA’s refusal to let one of its check-in staff wear a visible cross was an unlawful interference with her human rights. But three other Christians who claimed their human rights were similarly infringed have lost their cases.
Ms Eweida, a devout Christian, was employed by BA from 1999 as a member of their check-in staff. In 2004 BA introduced a uniform policy prohibiting customer-facing members of staff from wearing any visible jewellery. Ms Eweida refused to conceal her cross so was sent home without pay. She remained on unpaid leave for over five months until BA introduced a new policy, permitting employees to display faith or charity symbols with their uniform.
Ms Chaplin worked as nurse and was prohibited from wearing a visible cross on health and safety grounds by her employer.
Ms Ladele was employed by Islington Borough Council as a registrar and refused to conduct civil partnerships (same sex marriages) on the basis that such partnerships are against her beliefs.
Mr McFarlane worked as a counsellor for Relate and refused to provide sexual counselling for same sex couples.
All four claimants were unsuccessful in claiming religious discrimination in the UK courts. They took their cases to the European Court of Human Rights in Strasbourg, complaining that the UK had failed to safeguard their human rights to manifest their religious beliefs in the workplace.
The Court ruled that UK law had failed to safeguard Ms Eweida’s human right to manifest her religious beliefs. BA’s desire to project a certain corporate image was legitimate, but the UK courts had attributed too much weight to it. The cross was discreet and did not detract from professional appearance. The fact that the policy was subsequently changed showed that the earlier prohibition was not of crucial importance.
However, in Ms Chaplin’s case, the reason for not allowing her to wear a cross was health and safety. This reason was “inherently of greater magnitude” than the reason in Ms Eweida’s case. In Ms Ladele’s case, the policy of requiring her to perform same-sex marriages was aimed at protecting the rights of others and the courts had not overstepped the mark in ruling that the policy was justified. A similar conclusion was reached in Mr McFarlane’s case.
As a result, Ms Eweida won her challenge and the three other claimants lost.
Broadly speaking, the judgement supports an employer’s right to restrict employees from manifesting their religious beliefs where the restriction is based on health and safety considerations or the need to protect the rights of others.
But dress codes which are not designed for health and safety purposes do need to pay sufficient regard to employees’ rights to manifest their religious beliefs. This does not mean that employees can wear whatever they like, as long as they cite a religious motivation. But nor can employers set dress codes which prevent employees from wearing religious symbols in situations without good reason and where there is no evidence of this having a negative impact.
There are other interesting aspects to the judgement which may be relevant to UK discrimination law more widely. We will look at these, and the specific implications for dress codes, at our forthcoming employment law update briefing events, which are free for EEF members.