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Noughts and crosses - European Court of Human Rights rules on long-running religious discrimination cases

Published 30 January 2013

he European Court of Human Rights has published its long awaited decision in the cases of Nadia Eweida, Shirley Chaplin, Lillian Ladele and Gary McFarlane – the first two cases centred on wearing crucifixes at work, and the latter two on refusing to carry out civil partnerships and relationship counselling for same-sex couples.

The Judges ruled that Ms Eweida’s rights had been violated under article 9 of the European Human Rights Convention (which provides that there is a right to freedom of thought, conscience and religion), but found that the rights of the other three individuals had not been breached.Nadia Eweida was sent home from her role on the check-in desk at British Airways in 2006 after she refused to remove a visible crucifix. This was in breach, at that time, of British Airways’ uniform policy. Ms Eweida then brought an employment tribunal claim against BA, but the tribunal decided that she had not been discriminated against on grounds of religion. Ms Eweida then took her complaint to the European Court of Human Rights and that Court has now ruled that her right of religious expression was unfairly restricted by BA.

The Court’s view is that employers need to strike a balance, weighing up an employee’s right to freedom of religion in the workplace against the rights of others (i.e. the impact on the employer, colleagues and customers). Employers need to consider whether imposing any kind of restriction is proportionate or not. In Ms Eweida’s case, the Court found that her crucifix was discreet and that there was no evidence to suggest that the wearing of items such as turbans and hijabs by other employees had had any negative impact on the British Airways brand. However, in respect of Shirley Chaplin, a qualified nurse, the Court held that the protection of health and safety on a hospital ward outweighed her religious rights and so made it lawful for her employer to require her not to wear her crucifix.

Like most case law decisions, the judgment in these cases is highly fact specific. However, the decision in the case of Ms Eweida means that employers must give careful consideration to reasonable requests from workers to be able to display their religious beliefs.

The decision also serves as a timely reminder of the importance of having up-to-date policies in place dealing with dress code and equal opportunities. Employers should review and consider the content of any such policies in light of the European Court’s decision.

(The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Berg or any of its partners or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.)

Nigel Crebbin
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Berg Solicitors
www.berg.co.uk
0161 817 2817

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