ECHR find BA guilty of breach of Human Rights

25 January 2013

Niall McMullan of Worthingtons Solicitors discusses the recent ECHR decisions in four claims all asserting breach of Article 9) of the European Convention on Human Rights.

In a recent decision handed down by the European Court of Human Right (ECHR) a Christian female worker has been successful against British Airways in a religious discrimination case.

In the case Eweida & Ors - v- UK the ECHR took the view that because Ms Eweida was refused the right to wear a crucifix while working as a check-in clerk, her right to protection from discrimination on the grounds of her religious beliefs had been compromised.

At the same time, the ECHR considered three other cases on similar issues. Ms Chaplin worked as a geriatric nurse and, in contravention of her employer's uniform policy, sought to wear a cross whilst performing her duties.  This was the case in Ms Ewieda’s situation also. Ms Ladele was a registrar, whose former employer required her to perform civil partnership ceremonies. The fourth case considered by the ECHR was that of Mr. McFarlane who provided counselling services for Relate but was unwilling to provide sexual counselling for same sex couples. Unlike Ms Eweida, these three claimants were unsuccessful in bringing their claims that Article 9 of the European Convention on Human Rights had been breached by their respective employers.

Article 9 of the Human Rights Act 1998 states there is a right to freedom of thought, conscience and religion, but a qualified right to manifest one’s religion or beliefs. Within Ms. Eweida’s case the ECHR determined that the UK courts gave too much weight to British Airway’s desire to maintain a corporate image. The ECHR held that British Airway’s justification argument that the wearing of a cross whilst working as a check-in clerk tainted the employer’s image as an international brand was not accepted as sufficient by the ECHR. They stated that Ms Eweida’s cross was discreet, and they could find no evidence that the wearing of the cross had a prejudicial impact on British Airways as a business entity.

In respect of the 3 other cases – the ECHR accepted as justification Ms. Chaplin’s employer’s position that the wearing of a cross on a hospital ward could have health and safety ramifications, and it was therefore legitimate to request in those particular circumstances that she refrain from wearing the jewellery.

In the cases of Ms Ladele and Mr McFarlane the ECHR dismissed both cases on the basis that religious beliefs alone are not a good enough reason to justify a worker’s unwillingness to do their job and any lack of tolerance shown by workers on the grounds of sexual orientation could also be viewed as a source of conflict in the workplace.

All employers should be aware of such decisions when seeking to implement or review policies. When drafting a uniform policy the employer should be as concise as possible when identifying what is and what is not appropriate attire for the work place. If the wearing of jewellery or any other item of clothing interferes with an individual’s ability to do their job, it may be reasonable for an employer to ask the employee not to wear such items regardless of whether this could impinge on the religious beliefs of the employee.

While employers must continue to take a worker’s right to freedom of thought, conscience and religion seriously, this should not impact on the employee's ability or willingness to do their job.

Niall McMullan is a Solicitor for Worthingtons Solicitors and specialises in Employment Law.

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