In the long running case; Eweida and Ors v UK, the European Court of Human Rights (ECtHR) held that the employee (Mrs Eweida) did suffer discrimination at work when her employer, British Airways, asked her to cover up her crucifix.
Mrs Eweida, a member of check-in staff for British Airways, brought a claim at the Employment Tribunal for religious discrimination on the grounds that she had been prevented from wearing a visible religious cross at work.
The Tribunal found in favour of British Airways. Mrs Eweida appealed to the Employment Appeal Tribunal and to the Court of Appeal. Both of her appeals failed so she took her complaint to the ECtHR. She claimed, at the ECtHR, that the sanctions she suffered at work breached her rights under Article 9 of the European Convention on Human Rights, which guarantees freedom of thought, conscience and religion, taken alone or in conjunction with Article 14 which guarantees prohibition of discrimination.
In order for an employer to have a defence against claims of indirect discrimination, they must be able to show that any provision, criterion or practice that they have in place is “a proportionate means of achieving a legitimate aim”.
In this case British Airways argued that its legitimate aim in having a uniform policy, which prevented employees from wearing visible religious jewellery at work, was to “project a particular corporate image”. The ECtHR held that, whilst it was a legitimate aim the UK courts had given it too much weight. The ECtHR held that the UK courts failed sufficiently to protect Mrs Eweida’s right to manifest her religion, in breach of the positive obligation under Article 9. The ECtHR also stated: (a) that there was no evidence that other employees wearing authorised religious clothing, such as turbans and hijabs, had any negative impact on British Airways’ brand or image; and (b) the fact that British Airways subsequently amended its uniform policy to allow visible religious jewellery to be worn demonstrated that the previous ban was not crucially important.
It is important to note, that whilst Mrs Eweida was successful, three other Christian applicants, Lilian Ladele, a local authority registrar, Shirley Chaplin, a nurse and Gary McFarlane, a marriage counsellor, who also claimed they had suffered religious discrimination lost their appeals. Taking each in turn:
- Ms Ladele lost her job with Islington Council because she said she could not conduct same-sex civil partnerships. The ECtHR held that the Council’s action was “legitimate”.
- Ms Chaplin was moved to a desk job by Devon and Exeter NHS hospital after refusing to remove a crucifix that he wore. The ECtHR rejected Ms Chaplin’s claims, deeming it a health and safety issue.
- Mr McFarlane lost his job after saying he felt he could not offer therapy to same-sex couples. The ECtHR ruled against him.
Further background regarding some of these claims can be found on our previous blog.
In light of these recent decisions, it is extremely important that employers ensure that they think carefully about whether any provision, criterion or practice that they have in place is a “proportionate means of achieving a legitimate aim”.
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