21 Jan 2013

Cross Discrimination Case - Impact for Employers

Cross Discrimination Case - Impact for Employers

Neil Fraser, Partner, analyses the implications for employers of the well publicised ECHR decision on religious discrimination in the workplace.

Neil Fraser, Partner, analyses the implications for employers of the well publicised ECHR decision on religious discrimination in the workplace.

15th January 2013 saw a significant decision issued by the European Court of Human Rights (ECHR)[1], which has profound consequences for all employers and employees in the UK, and for that matter the rest of Europe.

The decision was actually separate decisions about four individuals who found their religious beliefs coming into conflict with their employer and their workplace.  The employees were: 

  • A stewardess who refused to adhere to a policy against wearing jewellery, which prevented her from wearing a necklace with a cross;
  • A nurse who refused to remove her necklace with a cross when "performing close clinical duties"; 
  • A registrar of Births Deaths and Marriages whose job was expanded to include registering civil partnerships, which she was disciplined for refusing to do as she believed that "that same-sex civil partnerships are contrary to God’s law"; 
  • A Relate Counsellor who refused to work with gay, lesbian and bi-sexual clients because he believed "that the Bible states that homosexual activity is sinful and that he should do nothing which directly endorses such activity". 

These cases are particularly difficult problems for employers because an employer is not allowed to treat an employee or customer badly because they have particular religious beliefs any more than they are allowed to treat an employee or customer badly because they are of a particular sexual orientation. 

So how does an employer decide what to do when an employee says their religious beliefs mean they have to behave in a way which amounts to the discrimination of another employee?  

We now have the ECHR's decisions in each of the cases above.  It turns out, perhaps unsurprisingly, that it is all a question of balance. 

The reason that the stewardess was not allowed to wear a cross was to project a certain corporate image.  The court decided 5-2 in favour, that her cross was discrete and could not have detracted from her professional appearance.  They decided that she was unfairly sent home without pay for refusing to take off her cross, and she won her case. 

The reason the nurse was not allowed to wear her cross was "the protection of health and safety on a hospital ward".  The court decided 7-0 in favour that this was "inherently of a greater magnitude" than permitting the nurse to manifest her religion by visibly wearing a cross. 

The court had some sympathy for the registrar, whose job had been changed, but decided 5-2 in favour that the policy in place "aimed to secure the rights of others which are also protected under the Convention".  The court gave a wide margin of appreciation when it came to balancing the competing rights and did not consider that margin to have been exceeded. 

Finally the Relate counsellor voluntarily enrolled in their training scheme, knowing that he would have to counsel gay, lesbian and bi-sexual clients.  The court decided 7-0 in favour that the most important factor to be taken into account is that the employer’s action was intended to secure the implementation of its policy of providing a service without discrimination.  Again, the wide margin given was not exceeded. 

So what lessons can we take from these decisions?  If an employer's only reason for preventing discrete religious symbols from being displayed is image related, then they are likely to be discriminating.  On the other hand, a health and safety reason for such a restriction will likely be justified.  

Finally, an employer is likely to be entitled prevent employees from manifesting their religious beliefs where those religious beliefs conflict with a non-discrimination policy.  Care should, however, be taken where an employees terms and conditions are altered so that they are asked to start doing something they find religiously objectionable. 

The Court's decisions are useful and will help to point the way for employers in the future.  The key message to take from these decisions is that having robust and clear policies in force in the workplace is a vital first step in reducing the potential risk of claims.


Neil Fraser, Partner

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