Commission welcomes European Court of Human Rights ruling on religious discrimination cases

The Equality and Human Rights Commission has announced that it will work with employers and religious groups to help them interpret the European Court of Human Rights’ ruling on a series of cases involving religious freedom in the workplace. Four cases will be of practical interest to providers.

Two cases - the Case of Nadia Ewida and the Case of Shirley Chaplin, involved the right to wear a cross at work. For Eweida, the Court agreed that Eweida's rights to religious freedom had been violated when she was prevented from openly wearing a small silver cross on a chain around her neck. This overturns the decision of the UK Courts. However, for Shirley Chaplin, a nurse, the Court ruled that health and safety considerations meant that the UK court reached the right conclusion in supporting her employer’s actions to prevent her wearing a cross at work.

Mark Hammond, CEO of the Equality and Human Rights Commission said:

‘The right of people to express their religious belief is a vital freedom… so we welcome part of today’s decision by the European Court…people should not suffer unjustified discrimination on the grounds of wearing of religious symbols. However there is a lot of scope for confusion following the ruling, so the Commission will be issuing guidance to employers and employees’

The remaining two cases - the Case of Lillian Ladele and the Case of Gary McFarlane, involved sanctions taken by their employers as a result of their concerns about providing services for gay and lesbian couples. Ms Ladele was disciplined for refusing to carry out civil partnership ceremonies at the Register Office where she worked. Mr McFarlane was dismissed for refusing to provide counseling to same-sex couples. The European Court of Human Rights’ ruling on both these cases was that there had been no violation of rights to religious freedom, and Courts in the UK had reached the right decision in upholding the employers’ actions as legitimate.

Practical implications for providers:

• The cases are concerned with how a person’s religious belief is compatible with their professional roles and responsibilities rather than the validity or otherwise of that belief
• Employers should carefully consider all employee requests related to religion or belief. However, requests should be balanced by the business needs of the organisation. Providers need to be aware that they can justify some types of discrimination. In legal speak, this means making sure that your decision is a ‘proportionate response to a legitimate aim’ for ‘objective discrimination for indirect discrimination’. In plain English – this involves balancing the benefits to the business against the discriminatory effect on the individual. You can get further advice by reading the Technical Guidance that is discussed below. 
• Services offered by a provider must be free from discrimination. It is reasonable to expect all staff to deliver services in a non-discriminatory way
• People are concerned about the freedom to hold their religious beliefs. It is helpful to make clear that all are entitled to hold their religious beliefs providing conduct at work or during learning doesn’t discriminate or harass others
• Employees are free to hold religious beliefs but employers are entitled to require them to comply with their policies. An employer's commitment to an equal opportunities policy can, in appropriate circumstances, objectively justify any indirectly discriminatory treatment. Providers should have clear and explicit policies including, for example an E&D policy and a dignity at work policy, and these should be well-known and robustly implemented. The most important factor in the Ladelle and McFarlane cases was the employers’ policies, which had the legitimate aim to promote equal opportunities and to require employees to act in a way that did not discriminate others.
• Providers should ensure that their policies and practices are not discriminatory. This highlights the importance of assessing the equality impact on policies and decisions, such as a as dress code.

For the judgment, click here

For the EHRC response, click here

For report on the BBC website, click here