Redefining justification defences in religious discrimination claims

There is much more to the case of Eweida and others v UK decided by the Strasbourg court last week than the right to wear a cross at work. As the implications of the case unfold over the coming years we may come to see this as the point at which human rights law and employment law met and joined forces.

There were four cases before the European Court of Human Rights (ECtHR) which the court combined into one. Nadia Eweida was a check-in assistant who was sent home without pay for some months because she refused to comply with the BA uniform policy and cover the small silver cross which she wore as a necklace. Shirley Chaplin was a nurse who insisted on wearing a small crucifix on a chain around her neck and who was moved to work with no patient contact because wearing the necklace violated her employer’s health and safety rules. The other two cases concerned Lilian Ladele – a registrar who was threatened with disciplinary action if she refused to conduct civil partnerships – and Gary McFarlane, a Relate counsellor who was sacked because he would not undertake to counsel same-sex couples on issues affecting their sex lives.

Each of the four claimed religious discrimination in the UK courts and lost (although Ladele won at first instance). In support of their claims they also relied on article 9 of the European Convention on Human Rights which guarantees freedom of thought, conscience and religion. It also guarantees the right to ‘manifest’ religion or belief in ‘working, teaching, practice or observance’. In all four cases, however, the UK courts gave short shrift to arguments based on article 9, holding that human rights law had little relevance to the interpretation of domestic discrimination law. Case law from the ECtHR had stressed that not everything done as a result of someone’s religious belief was protected under article 9 – and that an employee who was not able to manifest his or her religious belief at work was free to walk away and work elsewhere.

Intimate link

That view can no longer hold. The Strasbourg court held that while a manifestation of a belief must be ‘intimately’ linked to the religion or belief, the act need not be required by the belief and was not limited to an act of worship or devotion. The court held that an employee’s insistence on wearing a cross in a visible way or refusing to engage in work conflicting with his or her belief was a ‘manifestation’ of belief within article 9.

The judges also held that in each case (Ladele’s case was argued in a slightly different way, but that needn’t concern us at this point) there had been an interference in the employee’s right to manifest his or her belief. The court declined to hold that the fact that an employee can resign and go elsewhere meant that a condition imposed in employment could not be an interference in the right.
Rather, it took the view that the ability of the employee to resign was one factor to be taken into account when considering the overall question of proportionality.

And it was on the question of proportionality that these cases ultimately turned. There is no breach of article 9 if ?the interference in someone’s right to manifest their religion or belief is, according to article 9.2, “necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others”.

Fair balance

On this point individual states enjoy a ‘margin of appreciation’ in deciding what is necessary in a democratic society and when a measure which interferes with an individual’s right to manifest a religious belief is justified. The ECtHR said that a “fair balance” had to be struck between the “competing interests of the individual and of the community as a whole”.

At first sight this seems to be similar to the ‘proportionate means of achieving a legitimate aim’ test that we find in domestic indirect discrimination cases – and in the cases of Chaplin, Ladele and McFarlane the ECtHR held that the domestic application of that test fell within the margin of appreciation. In other words, the court declined to interfere with the finding that the actions of the employer were justified.

In Eweida, however, the court held that the right balance had not been struck. The domestic courts had attributed too much weight to BA’s right to project a particular corporate image. The cross worn by Ms Eweida was discreet and did not detract from a professional appearance. There was no evidence that other permitted religious symbols had any negative impact on BA’s brand or image, and the fact that the policy was subsequently changed showed that the requirement was not of crucial importance.

There has been some criticism of the court’s approach in Eweida, with the suggestion that it overreached its remit by substituting its own findings of fact for those of the domestic courts. However, the original tribunal finding in Eweida was that BA had failed to show justification for their uniform code so the court is really doing no more than agreeing with the initial findings of fact.

Nevertheless, the ECtHR is quite dismissive of the importance of BA’s corporate image. There seems to be a suggestion here that a purely business-?based justification for interference is harder to establish than one based on issues such ?as ‘health’ or the ‘rights of others’. If so, ?that will cause some problems in the domestic discrimination sphere where it is the needs of the business rather than the community as a whole that have to be weighed against the discriminatory impact of the measure at issue.

Discriminatory impact

Take a case such as Cherfi v G4S Security (EAT/0379/10) in which the Employment Appeal Tribunal held that there was no discrimination when a security guard was prevented from leaving the workplace on a Friday to attend prayers at the nearest Mosque. The employer’s action was held to be justified – but on the purely commercial grounds that its client had insisted on a certain number of guards being on site at all times. If, as now seems clear, preventing the employee from attending prayers was an interference in his right to manifest his religion, how would that affect the issue of justification? It is at least arguable that more weight should have been given to the rights of the employee.

More recently in Mba v Merton London Borough Council (UKEAT/0332/12/SM) the EAT upheld a finding that an employer was justified in requiring a Christian to work on a Sunday. Clearly that case now has to be seen as raising an article 9 issue – but the work in that case involved providing respite care for particularly vulnerable children. Would that fact alter the balance and help justify the employer’s actions as necessary to ‘protect the rights of others’? Of course not all indirect discrimination cases will engage a convention right. Perhaps there will now be a two-tier system with one standard of justification in human rights cases and a different standard for the rest? Clearly we need some clarification from the courts as to whether Eweida has altered the justification defence in cases of indirect discrimination.

Whatever the answer, we can certainly expect many more domestic employment law cases to rely on convention rights. Article 9 is wider than just religion and encompasses a range of philosophical beliefs that meet the test of ‘cogency’ and being ‘worthy of respect in a democratic society’. Expect to see a line of cases in the coming years testing the extent to which an employee’s moral objections to an employer’s business practices need to ?be accommodated.
Article 8 of the convention (respect for private and family life) may also be a source of fresh case law as employees challenge an employer’s right to take account of their out-of-hours activities, or insist on flexible working options to enable them to meet their family responsibilities.

Employment lawyers should start brushing up on their human rights law now – it may be the next big thing.