Defining the limits of religious protection in the workplace

The four religious discrimination cases heard before the European Court of Human Rights yesterday have aroused strong emotions. That makes for exciting news coverage but unfortunately gets in the way of rational analysis. The cases are backed by a Christian lobby group, but there is more substance to them than the rather flimsy claims of Christian ‘persecution’ made by public figures who should know better.

The four claimants - Eweida, Chaplin, Ladele and McFarlane - claim that UK law has failed to protect their right to manifest their religious beliefs under article 9 of the European Convention of Human Rights and failed to protect them against discrimination based on their religious beliefs under article 14.

The cases divide neatly into two pairs. Eweida and Chaplin are concerned with appearance - specifically an employee’s right to wear a visible religious symbol at work. Ladele and McFarlane are concerned with the extent to which an employee is entitled to opt out of tasks or responsibilities that conflict with his or her religious or philosophical beliefs. Significantly, the Equality Commission has intervened with a submission in support of at least some aspects of the claims. In particular the commission argues that the UK courts have failed to give due consideration to human rights issues when considering discrimination cases based on religion or belief.

‘Manifestation’ of belief

A key issue identified by the commission is what counts as a ‘manifestation’ of religion or belief for the purposes of article 9. One reason the domestic courts were not swayed by the human rights arguments put forward in these cases is that the Strasbourg court has tended to stress that not everything motivated or inspired by a religious belief is protected by article 9 (see Sahin v Turkey (2007) 44 EHRR 5) and that a manifestation of belief is only protected if it can be shown to be an essential requirement of that belief rather than merely behaviour which is prompted by it (Arrowsmith v United Kingdom (1980) 19 DR)). Influenced by this restrictive approach, the UK courts have tended to give short shrift to claims where the expression of religious belief has clashed with a requirement imposed on an employee by his or her employer (Copsey v WWB Devon Clays Ltd [2005] EWCA 932).