19 March 2019 - Article
In a landmark judgement, the European Court of Human Rights (ECHR) has ruled that a British Airways employee’s right to express her religion was violated when she was prevented from visibly wearing a small silver cross with her uniform as a sign of her commitment to her faith. However, in the same judgement, the ECHR dismissed the appeals of three other applicants; Ms Chaplin, a nurse who was also prevented from wearing a cross in the geriatrics ward where she worked, and Ms Ladele, a Registrar employed by the London Borough of Islington, and Mr McFarlane, a Counsellor for Relate, both of whom did not want to carry out their duties in relation to gay couples because of their religious beliefs.
In these combined cases, the ECHR examined the extent to which an employee has the right to express their religion in the workplace and, where this impinges on the rights of others, the extent to which restrictions can be justified. In each case, the Court considered whether a fair balance had been struck between various competing rights and interests. In relation to British Airways’ employee, Ms Eweida, the ECHR found that too much importance had been given to the airline’s wish to project a certain corporate image compared with Ms Eweida’s desire to manifest her religious belief and communicate that belief to others. By contrast, Ms Chaplin was asked to remove her cross for health and safety reasons, which the ECHR held were inherently of much greater importance, and therefore outweighed Ms Chaplin’s rights – the interference with her freedom to manifest her religion had been necessary in a democratic society. Similarly, in relation to Ms Ladele and Mr McFarlane, their employers’ policies had the legitimate aim of promoting equal opportunities and requiring employees to behave in a way that does not discriminate against others, such as same-sex couples. As a result, the ECHR decided that the employers had a wide discretion in striking a balance between securing the rights of others and the employees’ right to manifest their religion and that the right balance had been struck.
Ms Eweida’s victory has implications for public sector employers whose employees wish to wear religious symbols in the workplace, since judgements of the ECHR are directly enforceable against public sector employers. This is not the case in the private sector but employees bringing claims for discrimination will be able to argue that the law should be interpreted in line with this decision.
The distinctions made between these cases shed important light on how employers should approach the difficult issue of the freedom of employees to express their religion in the workplace. Employees can wear religious symbols as long as they do not impinge on the rights and interests of others and employers have a relatively wide discretion when deciding where the balance should be struck. An employer should be able to justify preventing employees from manifesting their religion in the workplace if it can show that it does so to protect the competing rights or interests of other employees or service users, particularly in the realms of discrimination or health and safety. For example, it is unlikely that the decision in Azmi v Kirklees MBC, where a local authority was found not to have discriminated against a Muslim teaching assistant by asking her to remove her veil when working directly with children, would be decided differently in the context of this judgement. Asking the teaching assistant to remove her veil should still be justifiable on the basis that it affected her performance of her duties because it deprived the children of non-verbal signs, an important part of communication, thus outweighing her right to manifest her religion.
However, while Ms Eweida wanted to wear a simple silver cross it is far from clear what the position would be if an employee wanted to wear a more obvious religious symbol. Perhaps now is a good time for the Government to address the lack of explicit legislation regulating the wearing of religious clothing and symbols in the workplace?