[Thanks to Sarah Russell, solicitor at Russell, Jones and Walker, part of Slater & Gordon Lawyers, for preparing this case summary]
In many situations, but not all, says the European Court of Human Rights in Eweida & Others v UK.
Ms Eweida worked for British Airways, and Ms Chaplin as a geriatric nurse. Both had sought to wear visible crosses, in breach of their employers' respective uniform policies. Ms Ladele was a registrar, whose employer required her to perform civil partnership ceremonies. Mr McFarlane provided counselling services for Relate. He was unwilling to provide sexual counselling for same sex couples.
Article 9 of the European Convention on Human Rights provides that there is a right to freedom of thought, conscience and religion, but a qualified right to manifest one's religion or beliefs. This is subject to 'only such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health, or morals, or for the protection of the rights and freedoms of others'.
The Court essentially departed from previous case law and held that where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would remove any interference with the right, the approach at the ECtHR level is to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate.
The Court held that the domestic courts accorded too much weight to British Airways' desire to project a certain image. 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 State had breached its obligations under Article 9 in failing to protect Ms Eweida's rights.
In respect of Ms Chaplin, the Court held that the importance of her being permitted to manifest her religion must weigh heavily in the balance. However, the reason for asking her to remove the cross, the protection of health and safety on a hospital ward, was more important. The interference was necessary in a democratic society and there was no breach of her Article 9 rights.
In respect of Ms Ladele and Mr McFarlane, the Court has previously held that differences in treatment based on sexual orientation require particularly serious reasons by way of justification. The Court commented that national authorities have a wide margin of appreciation when it comes to striking a balance between competing Convention rights. The margin of appreciation was not exceeded by either case.
The judgment highlights that the justification of indirect discrimination will continue to be a highly fact specific exercise, although employers will now be required in many cases to accommodate reasonable requests in respect of uniform.
Note from Daniel Barnett: For more information on this decision, see blogposts here and here.
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