Religious Beliefs in the Workplace – Decision of the European Court of Human Rights
These were all cases relating to the conflict between employer's policies and the employees’ religious beliefs in the workplace and have all been the subject of much discussion in the news over recent years.
They raise very important issues and I strongly recommend that every employer gets to grip with these as soon as possible.
Eweida concerned a lady employed by BA who wanted to wear a crucifix openly at work which was contrary to BA's dress code at the time.
Chaplin concerned the same issue but in the context of employment as a nurse in a geriatric ward.
Ladele dealt with the conflict between Ms Ladele's objection (based on her religious beliefs) to carrying out registrations of civil partnerships and Islington Council requirement that she do so.
McFarland concerned Mr McFarland's objection to providing sex therapy to same-sex couples which might have been required of him in his role as a counsellor at Relate.
Some of those claims succeeded in the UK initially but ultimately they all failed in their claims in the UK courts for one reason or another.
The ECHR decision is well worth reading even if you are not particularly interested in employment law - if only to see how carefully Human Rights issues are debated in the ECHR and how difficult it can be to make these decisions, something the Daily Mail for example obviously has difficulty grasping.
The ECHR was not unanimous in its decision in these cases, having particular difficulty with the cases of Eweida and Ladele.
The ‘Cross’ Cases
With regard to the cross-wearing cases, the UK courts had held that in order for the religious discrimination legislation to be relevant in such cases, the wearing of the cross (or whatever other issue causing the dispute) had to be a mandatory requirement of the faith or at least be considered to be so by a significant portion of that faith.
The UK courts held that wearing a cross was not a mandatory requirement of the Christian faith and therefore the claimants’ rights to religious freedom simply did not come into play.
The evidence did not show that Christians were put under any particular problems by the dress code requirements as a group and it was held that for indirect discrimination to apply there had to be a group of affected people – not just one or two individuals.
The ECHR held that the claimants’ rights in relation religious freedom had been engaged. They repeated that not every act which is motivated by religious belief would count but once a belief has reached the necessary threshold of cogency, seriousness, coherence and importance, it is not for the state to decide on the legitimacy of those beliefs or how they are expressed.
The ECHR held that any act which is intimately linked with the belief will attract protection under the Convention. Whether any act is so connected is a question of fact in each case.
They then held that in both cases the desire to wear a cross openly was a manifestation of religious belief.
In Ms Chaplin’s case, they went on to hold that the decision to ban the wearing of necklaces and other kinds of jewellery on health and safety grounds was one that the hospital was entitled to take. Her claim was therefore dismissed.
In Ms Eweida’s case, BA had in fact changed their policy not long after the events caused by Ms Eweida. The majority of the ECHR held that this showed that there was no need for the policy in the first place and that it was therefore clearly not a proportionate means of achieving a legitimate aim.
The Dissenting Judgments
Two members of the court felt that this was not the right way to look at the case. They felt that BA was entitled to have such a policy and the fact that they changed it once it was made known to them that there was an issue with it should not be used to undermine the legitimacy of the policy in the first place.
The difficulty with Ms Eweida’s case from this perspective was that she did not raise her issue with the policy with the company at any stage before she attended work openly wearing her cross and refused to return to work unless allowed to wear it –even though BA offered to move her to a non-customer facing position at the same salary where she would have been allowed to wear her cross openly.
The dissenting judges of the ECHR on that aspect felt that the fact that BA subsequently changed their policy showed that there were sufficient safeguards in place to protect her religious freedoms rather than the opposite.
The Bottom Line
The ECHR took that offer by BA into account by holding that Ms Eweida was not entitled to compensation for loss of earnings for the period between her refusing to attend work and her return after the policy was changed. They did award her 2,000 Euros for distress and 30,000 Euros in costs.
Their decision on loss of earnings may have been swayed somewhat by the evidence that Ms Eweida was in fact receiving rather more that twice her salary during the period she was not at work – some through other work, some through gifts and donations.
The ‘Same-Sex’ Cases
These two case whilst both dealing with issues arising out of the Claimant’s religious beliefs about same-sex relationships were rather different and the differences are worth highlighting.
Ms Ladele joined Islington in 1992 and became a Registrar in 2002. At that time there were no same-sex partnership ceremonies and all indications where that if any such were introduced there would be provisions so that Registrars who objected to them could opt out.
However when civil partnerships were introduced Islington took the decision that it would simply designate all its Registrars as Registrars for civil partnerships as well.
Ms Ladele was initially allowed to make informal arrangements with colleagues so that she did not herself perform civil partnership ceremonies. Eventually some of her colleagues objected to this and Ms Ladele was asked to perform civil partnership ceremonies in future.
The Majority Decision
The majority of the ECHR held that Ms Ladele’s rights had been infringed and that the question was therefore whether doing so was a proportionate way of achieving a legitimate aim. The UK courts had held the same thing and decided that it was. Islington wanted to ensure that it did not discriminate and therefore required all Registrars to perform same-sex ceremonies.
The ECHR held that this was a case where Convention rights were in conflict – the rights of same sex couples and those of Ms Ladele as a person with a religious objection to same-sex couples.
The majority held that there was a wide margin of discretion for individual states on how to balance such competing rights and that the local authority and the UK courts’ did not overstep the limits of that discretion.
The Dissenting Opinion
The dissenting judges (different to those who dissented in relation to Ms Eweida) pointed out that when Ms Ladele became a Registrar there was no reason for her to expect that there was any likelihood that she might be required to officiate at same-sex ceremonies.
They further argued that this was not a case of conflicting Convention rights – no service user had complained or been discriminated against. Islington’s aim was to provide a fair and non-discriminating service. It could have done that whilst still allowing Ms Ladele to opt out of performing such ceremonies herself – something which many other local authorities do without problems.
They essentially took the view that Islington’s policy was political correctness gone mad to put it in Daily Mail terms. They had let their desire to champion ‘gay rights’ override the right of Ms Ladele to object to something which was contrary to her conscience.
The Bottom Line
This is an interesting case in that the majority view allows a much wider view of when a public body can take the view that conflicting rights are involved. It is in my view hard to argue with the dissenting opinion when they point out that there was no question in this case of anyone being discriminated against by Islington if they allowed Ms Ladele not to perform same-sex ceremonies. They could still have provided adequate Registrars for civil partnerships which was all they were required to do.
Mr McFarland’s case was superficially similar to Ms Ladele’s but with some important and ultimately decisive differences.
Mr McFarland is a practising Christian and believes that homosexual activity is prohibited by the Bible and is sinful and that he should do nothing that promotes such activity.
He was also a Relate counsellor. As part of that, he was required to counsel same-sex couples. The evidence was that whilst he had some concerns about doing that, he was able to be persuaded that counselling same-sex couples did not involve endorsing such a relationship (I have to say that I have some difficulty understanding how that can be the case but that is apparently the view he took). He subsequently did counsel two lesbian couples.
In 2007 Mr McFarland began Relate’s post-graduate diploma in psycho-sexual therapy. By the end of the year there were apparently concerns that he was unwilling to work on sexual issues with homosexual couples.
He was approached by a manager and confirmed that he would have difficulties reconciling counselling homosexual couples on sexual matters with his religious beliefs. He never actually refused to provide such therapy but despite being asked several times to confirm whether he would be prepared to do so, he never gave a wholehearted confirmation either.
At one point he said that if he was instructed to provide such services, he would comply and if any problems arose he would contact his supervisor.
Subsequently, further concerns about his willingness to provide such therapy was raised and the most he was prepared to say was that his views were still evolving and that he would address the issue if and when it arose.
Relate were not prepared to accept that and dismissed him on the grounds that they had lost confidence that he would perform his duties if asked to do so.
The UK courts held that he had not been directly discriminated against – he was not dismissed because of his beliefs but because of his refusal to comply with the employer’s policy. There was no indirect discrimination because although the policy would have a detrimental impact on people with Mr McFarland’s beliefs, the policy was a proportionate means of achieving a legitimate aim. Unlike Islington in Ms Ladele’s case, Relate could not realistically filter clients to ensure that Mr McFarland was not put in a position where he might be required to counsel same-sex couples on sexual issues.
The ECHR held that whilst Mr McFarland’s religious freedom was impinged by the policy, any decision as to whether that was legitimate had to take into account the fact that he voluntarily enrolled on Relate’s course in psycho-sexual counselling, knowing that Relate would expect him to also counsel same-sex couples.
Bearing that in mind, the ECHR held that the UK courts were entitled to decide that Relate’s desire not to discriminate against same-sex couples outweighed Mr McFarland’s rights in that case.
What does all this mean for you?
Well, there are a number of things to take away:
Just because one person’s view of what their religion requires is not shared by the majority or even a large number of their faith, you cannot ignore it when considering your policies.
If a policy adversely impacts on followers of a particular faith or belief, you are more likely to be able to justify it if there is a health and/or safety reason for the policy.
If someone volunteers for a post which requires them to do things that they consider to conflict with their religion or belief, whilst you cannot rely on that to protect you from claims for discrimination, it may be easier to show that your policy is proportionate and legitimate.
Conversely, if there is no need to force people already in a job to perform tasks which they find contrary to their faith, it will be much harder to justify the policy.
From a pragmatist’s point of view, one thing to take away is that if you get these issues wrong or even if you get them right legally, they can cause you an awful lot of problems especially if any of the many groups with vested interests get involved in your particular case.
Realistically, none of the people in these cases are likely to have had the means to take these cases as far as they did without the support of others who felt strongly about the issues in those cases.
If you get caught up in what is ultimately an ongoing societal debate, it can cost you dearly.
If you are faced with these sort of issues, contact Gardner Croft Solicitors – early.