Not everything is as it seems in yesterday's much misunderstood Eweida and Others ruling from the European Court of Human Rights.The issue at stake, in basic terms, was whether there had been a
Not everything is as it seems in yesterday's much misunderstood Eweida and Others ruling from the European Court of Human Rights.
The issue at stake, in basic terms, was whether there had been a violation of the European Convention on Human Rights in four UK cases. The European Court confirmed that the UK had breached the human rights of a Christian employee (Eweida) who was not allowed to wear a visible cross at work. However, the right balance had apparently been struck by the UK in a similar case (Chaplin) where the employer had relied on health and safety reasons to justify its defence. It has been reported that the European Court's reasoning appears to support employers who take a bullish approach to enforcing equal opportunity policies at the expense of individual human rights.
In Eweida, the UK courts were criticised for placing too much weight on the defence of the employer, British Airways, who had argued that it had prohibited the wearing of religious symbols at work to protect its public image. By contrast, in Chaplin, it was accepted that the UK courts had struck the right balance where a nurse had been prohibited from wearing a visible cross at work on health and safety grounds.
Some commentators have said that this means that it will now be more difficult for employers to justify having a dress code that could discriminate against religious groups. Others have said that it will be easier for employers to justify such discrimination on health and safety grounds. Neither of these statements is necessarily true.
The European Court in Eweida did not criticise the legislative framework in the UK. The charge against the UK is only that the courts struck the wrong balance on this occasion in weighing up the interference with individual human rights against the importance of the employer's objective. However, this is not to say that the European Court could have reached a different view on similar facts. The main criticism in Eweida seems to have been the view of the European Court that there was "no evidence" that in fact the wearing of other, previously authorised, religious clothing, such as turbans and hijabs, had any negative impact on British Airways' brand. What if there had been such evidence? Would a different view have been reached? Quite possibly, especially when it is remembered that the European Court was not unanimous in its decision. The dissenting opinion from the minority judges in Eweida was that the criticisms of the UK courts by the majority did not do "justice to the decision or reasoning of the Court of Appeal".
The European Court also considered two other cases. In McFarlane, a Christian counsellor was dismissed on the basis that he had said that he would provide sexual counselling to same-sex couples without having any intention of doing so. In Ladele, a Christian registrar was disciplined after refusing to conduct civil partnership ceremonies. In both cases, the employers had taken action because the views of these individuals were considered to be incompatible with their equal opportunities policies. The European Court ruled that the UK had a wide margin of appreciation when it comes to striking a balance between competing human rights. On the facts, the European Court held that this margin of appreciation had not been exceeded.
However, again, it would be prudent for employers to exercise caution before jumping to any general conclusions on this case. Once again, there was a dissenting opinion from the minority judges that the UK had violated Ms Ladele's human rights and that her employer could have easily accommodated her conscientious objection to officiating at same-sex unions.
So what does all this mean for employers? Arguably, it means the same as it has always meant. Employers should not be afraid to have uniform policies which place limitations on the wearing of religious clothing or symbols. However, they should think carefully why this is needed, have the evidence to support it, enforce it consistently and keep it under regular review. This might, for example, mean that different approaches apply to back-office staff compared with public facing employees. A one-size-fits-all approach is unlikely to be appropriate.
Employers should also be careful not to adopt what might be perceived to be "knee jerk" reactions in cases where an employee's beliefs appear to conflict with their equal opportunities policies. It should be remembered in another recent European Court decision, a UK employer was criticised for not considering whether a member of the BNP could be moved away from a public facing job dealing with disabled persons and ethnic minorities.
The issue at stake, in basic terms, was whether there had been a violation of the European Convention on Human Rights in four UK cases. The European Court confirmed that the UK had breached the human rights of a Christian employee (Eweida) who was not allowed to wear a visible cross at work. However, the right balance had apparently been struck by the UK in a similar case (Chaplin) where the employer had relied on health and safety reasons to justify its defence. It has been reported that the European Court's reasoning appears to support employers who take a bullish approach to enforcing equal opportunity policies at the expense of individual human rights.
In Eweida, the UK courts were criticised for placing too much weight on the defence of the employer, British Airways, who had argued that it had prohibited the wearing of religious symbols at work to protect its public image. By contrast, in Chaplin, it was accepted that the UK courts had struck the right balance where a nurse had been prohibited from wearing a visible cross at work on health and safety grounds.
Some commentators have said that this means that it will now be more difficult for employers to justify having a dress code that could discriminate against religious groups. Others have said that it will be easier for employers to justify such discrimination on health and safety grounds. Neither of these statements is necessarily true.
The European Court in Eweida did not criticise the legislative framework in the UK. The charge against the UK is only that the courts struck the wrong balance on this occasion in weighing up the interference with individual human rights against the importance of the employer's objective. However, this is not to say that the European Court could have reached a different view on similar facts. The main criticism in Eweida seems to have been the view of the European Court that there was "no evidence" that in fact the wearing of other, previously authorised, religious clothing, such as turbans and hijabs, had any negative impact on British Airways' brand. What if there had been such evidence? Would a different view have been reached? Quite possibly, especially when it is remembered that the European Court was not unanimous in its decision. The dissenting opinion from the minority judges in Eweida was that the criticisms of the UK courts by the majority did not do "justice to the decision or reasoning of the Court of Appeal".
The European Court also considered two other cases. In McFarlane, a Christian counsellor was dismissed on the basis that he had said that he would provide sexual counselling to same-sex couples without having any intention of doing so. In Ladele, a Christian registrar was disciplined after refusing to conduct civil partnership ceremonies. In both cases, the employers had taken action because the views of these individuals were considered to be incompatible with their equal opportunities policies. The European Court ruled that the UK had a wide margin of appreciation when it comes to striking a balance between competing human rights. On the facts, the European Court held that this margin of appreciation had not been exceeded.
However, again, it would be prudent for employers to exercise caution before jumping to any general conclusions on this case. Once again, there was a dissenting opinion from the minority judges that the UK had violated Ms Ladele's human rights and that her employer could have easily accommodated her conscientious objection to officiating at same-sex unions.
So what does all this mean for employers? Arguably, it means the same as it has always meant. Employers should not be afraid to have uniform policies which place limitations on the wearing of religious clothing or symbols. However, they should think carefully why this is needed, have the evidence to support it, enforce it consistently and keep it under regular review. This might, for example, mean that different approaches apply to back-office staff compared with public facing employees. A one-size-fits-all approach is unlikely to be appropriate.
Employers should also be careful not to adopt what might be perceived to be "knee jerk" reactions in cases where an employee's beliefs appear to conflict with their equal opportunities policies. It should be remembered in another recent European Court decision, a UK employer was criticised for not considering whether a member of the BNP could be moved away from a public facing job dealing with disabled persons and ethnic minorities.