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Eweida: ban on wearing a cross was religious discrimination

In a judgment released today, the European Court of Human Rights has found that Ms Eweida, the British Airways employee who was not allowed to wear a cross under her uniform, suffered discrimination at work over her religious beliefs. However, the other three employees in the jointly heard case all lost their claims.

All four employees are practising Christians who claimed that they had been discriminated against on religious grounds. Ms Eweida, a check-in worker with BA, and Ms Chaplin, a geriatrics nurse, both complained that their employers prevented them from visibly wearing Christian crosses while at work. Ms Ladele, a Registrar of Births, Deaths and Marriages, and Mr McFarlane, a Relate counsellor, complained after they were dismissed for refusing to undertake civil partnerships and counselling for same-sex couples.

Eweida The ECHR found that the correct approach was to balance the competing interests of the employer and the employee: in this case the wish to project a certain corporate image against the desire to manifest a religious belief. However, the UK courts had attached too much weight to the employer’s interest, particularly as other BA employees had been permitted to wear religious clothing such as turbans and BA later amended its uniform code to allow for the visible wearing of religious symbolic jewellery. As Ms Eweida’s right to express her religion had been unfairly restricted she was awarded €2000.

Chaplin Ms Chaplin’s case, although very similar on the facts to Ms Eweida’s, was unsuccessful because the reason for asking her to remove her cross – the protection of health and safety on a hospital ward – was more important than that which applied to Ms Eweida. Hospital managers were found to be better placed to make decisions about clinical safety than a court.

Ladele and McFarlane The ECHR found that the disciplinary proceedings against Ms Ladele and Mr McFarlane were justified. Both Islington Council and Relate had policies which promoted equal opportunities and required employees to act in a way which did not discriminate against others. This had the legitimate aim of securing the rights of same-sex couples, who are also protected under the European Convention on Human Rights. As a result neither employer could support an employee who refused to work with homosexual couples.

Whether an indirect discrimination claim can be justified depends on whether the employer’s actions are a proportionate means of achieving a legitimate aim. As these cases demonstrate, this is a balancing exercise which very much depends on the particular facts.

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