Cherie Booth QC and Andrew Smith, barristers, Matrix Chambers
Staying out of the religious cross-fire
28 January 2013
19 December 2013
12 December 2013
19 March 2014
27 November 2013
9 December 2013
ECHR decisions show where employers can draw the line on displays of religious belief at work
The recent judgment by the European Court of Human Rights (ECHR) in Strasbourg, in which a British Airways employee overturned a ruling of the Court of Appeal (CoA), brings sharply into focus the issue of whether or not you have the right to manifest your religious beliefs at work.
Importantly, however, this was the only one of four cases where the European court disagreed with the stance adopted by the UK courts. In the other three, the rejection of the appeals givesan insight into how the courts seek to strike a balance between the competing rights of individual workers, their colleagues, employers, clients and service users.
Contrary to some suggestions, the European judgment does not provide workers with an absolute right to wear religious dress or symbols in the workplace. Employers are still entitled to impose uniform codes and restrictions, provided that their approach is ‘proportionate’ – in other words, strikes a fair balance between the rights of workers to manifest their religious beliefs at work, with the competing rights of others.
Two of the appeals before the European Court -EweidaandChaplin- concerned challenges to an employer’s decision that they were not permitted to wear necklaces bearing a cross – a symbol of the Christian faith – in the particular manner they desired.
Eweida succeeded in her appeal to the European Court, but Chaplin failed. Why was this?
In the Eweida case, the countervailing interest was not a human right at all but the right of her employer “to project a certain corporate image”. The European Court decided this was not a good enough reason to restrict Eweida’s right to wear her cross, as a symbol of her religious beliefs, especially as the cross was discreet and did not detract from her professional appearance.
Furthermore, there was no evidence that the wearing of other religious clothing, for instance, turbans and hijabs, had any negative impact on British Airway’s (BA) brand or image.
The court also considered it important that BA had in fact already amended its uniform code shortly after Eweida had raised a formal grievance about the issue. Indeed, Eweida has been permitted by BA to wear the necklace, as desired, since February 2007.
Thus, the European Court concluded that in Eweida’s case, there had been “no evidence of any real encroachment on the interests of others” by wearing the necklace.
By contrast, in the case Chaplin, the restriction on the wearing of jewellery was in order to protect the health and safety of both nurses and patients. There were legitimate concerns that a disturbed patient may seize or pull the chain, causing injury, or that the jewellery could come into contact with an open wound.
The court noted that “hospital managers were better placed to make a decision about clinical safety than a court”. Whilst the European court acknowledged that the personal importance to Chaplin of wearing the necklace “must weigh heavily in the balance”, it found that the scales were tipped in favour of the employer’s legitimate desire to protect the health and safety of its staff and patients.
These judgments clearly illustrate that it is permissible for employers in the UK to restrict a worker’s right to manifest their religion in the workplace, but only if they can demonstrate a persuasive justification for doing so.