There has been a huge amount of commentary on the European Court of Human Rights decision yesterday in the case of Nadia Eweida. But away from the ideological battlegrounds, what does it actually mean for employees?
Well, the basic position for employees following these cases is that you will find it easier to argue that your employer should accommodate your desire to wear a religious symbol. The decision related to 4 individual cases. That of Ms Eweida, who worked for British Airways and Ms Chaplin, a geriatric nurse, both of whom had sought to wear visible crosses, in breach of their employers’ respective uniform policies.
The others, Ms Ladele and Mr McFarlane, were a registrar and counsellor who were required to perform civil partnership ceremonies and sexual counselling for same sex couples respectively. Ms Eweida was the only one whose case succeeded. In both of the “cross wearer” cases, the employers had sought to accommodate the employees, but the employees did not consider the offers to be adequate.
British Airways offered Ms Eweida a non-customer facing role which would have allowed her to wear her cross, while Ms Chaplin, was offered the option wear her cross on her name badge, to resolve apparent concerns about the necklace itself as a choke hazard.
Crucially, in respect of Ms Eweida’s case, the European Court of Human Rights (ECHR) held that the UK courts had given too much weight to BA’s desire to project a certain image of its brand by implementing a strict uniform policy. Ms Eweida’s cross was discreet, and there was no evidence that the wearing of items such as turbans and hijabs by other employees had any negative impact on British Airways’ brand.
In the circumstances, the Court therefore said that Ms Eweida’s right to manifest her religion had been breached. For Ms Chaplin however, the Court considered the importance of her being permitted to manifest her religion, but decided that the hospital should be allowed to rely on the fact that the necklace constituted a threat to health and safety. The ECHR considered this a stronger justification for not wearing a cross and they found there was no breach of her Convention rights as a result.
In respect of Ms Ladele and Mr McFarlane, the Court reiterated the importance of avoiding differences in treatment based on Sexual Orientation, and commented that states who are parties to the European Convention are given a lot of discretion when it comes to striking a balance between the competing rights of different groups and there was no basis for interfering with the way the UK had struck that balance in these cases. They both lost their cases for that reason.
The lesson from the “cross wearer” cases is that if your employer has not given you a good reason for refusing to allow you to express your religion at work, it might be a good idea to refer to your employment grievance policy and submit a request in writing. Your employer can refuse, but it must have a very good reason for doing so. For more information also see Religious Discrimination at Work.
Sarah Russell is an Employment Solicitor at Slater and Gordon Lawyers in Manchester.
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