Religious principles and the workplace

13 February 2013 | David Widdowson

We now have guidance on the controversial area of religious beliefs that compete with workplace requirements.

The UK and European courts have handed down decisions to guide employers who are grappling with the competing rights of religious belief and workplace requirements.

Sunday working

Ms Mba was a devout Christian who refused to work on Sundays. After managing to avoid scheduling her shifts on a Sunday, her employer, Merton Council, required her to carry out some Sunday shifts at certain times that did not interfere with her church services. She resigned in protest and claimed constructive dismissal and religious discrimination.

The EAT found that Merton Council could objectively justify the need for Ms Mba to work on a Sunday particularly as management had made substantial attempts to try to accommodate her beliefs.

The ECHR four

Ms Eweida and Ms Chaplin wanted to display a crucifix around their neck whist working respectively as a check in staff member for British Airways (“BA”) and a nurse for the NHS. Ms Ladele, a registrar, claimed that her religious beliefs regarding same-sex couples meant she would not be able to preside over civil partnerships. Mr MacFarlane, a Relate relationship counsellor, claimed that his religious beliefs meant he would not be able to counsel same-sex couples in relationship and psycho-sexual advice.

All 4 had lost their claims for religious discrimination in the UK courts and took their cases to the European Court of Human Rights (“ECHR”). They claimed that the UK courts were not interpreting UK equality laws in line with the European Convention on Human Rights. Ms Eweida, the only claimant still employed by the respondent to her UK court claims, was the only one who succeeded in her claim at the ECHR.

Commentary

The principle to be drawn from these cases is that no general rules of application can be laid down but rather that the courts will look carefully at the employer’s justification in each case for taking its chosen steps.

In the case of Ms Chaplin, the ECHR accepted the hospital’s explanation that the reason for not allowing her to wear a crucifix around the neck related to health and safety risks, whereas in Ms Eweida’s case, no such justification was found.

It is clear, therefore, that there is a balancing act for every employer and for the UK courts to consider. They need to determine:

  •  whether the reason for prohibiting the religious symbol is a tenet of the religion (such as a turban for a Sikh man or a bangle for a Hindu man); and
  •  whether the refusal to accommodate the religious belief is a
    • preference – such as BA’s desire to project a specific corporate image and uniform policy – in which case there may be a genuine case of religious discrimination; or
    • a strict rule – such as a genuine health and safety requirement or a policy and ethos not to discriminate against clients on the grounds of their sexual orientation; the latter was successfully argued by London Borough of Islington regarding their registry office and Relate regarding their counsellors.

Seemingly common sense prevails. Following the ECHR’s decision in Ms Eweida’s claim, employers should take comfort that they may still exercise their discretion regarding religious rights within the workplace but they must ensure they strike a fair balance between their employees’ religious beliefs and the business’ requirements.

Resources

Mba v Mayor and Burgesses of the London Borough of Merton

Eweida and others v United Kingdom

For further information or to discuss the issues raised, please contact Emma Clark or David Widdowson on +44 (0)20 3051 5711.

The author

David Widdowson
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D: +44 (0) 207 036 8388
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