Religious discrimination employment law cases have been in the news for most of the last year and with four important UK cases going to the European Court of Human Rights in September 2012, we thought we’d have a look at this in more detail. Religion or belief is a ‘protected characteristic’ that should not be discriminated against, as outlined in the Equality Act 2010:
- Religion includes any religion. It also includes a lack of religion, in other words employees or jobseekers are protected if they do not follow a certain religion or have no religion at all
- Under the Act, a religion must have a clear structure and belief system. To be protected, a belief must satisfy various criteria, including that it is a weighty and substantial aspect of human life and behaviour.
- Discrimination because of religion or belief can occur even where both the discriminator and recipient are of the same religion or belief.
The cases going to Strasbourg this month are about practising Christians who believe they were discriminated against in the workplace – and relate to the freedom for Christians to wear crosses at work and for a Christian to refuse to support same-sex relationships. All the cases have been through the extensive English Court system and all four applicants invoke article 9 (freedom of religion) and article 14 (prohibition of discrimination) of the European convention on human rights in their claims. The test cases may define the limits of religious liberty in the UK.
What’s been happening this year?
Earlier in the year
Following several rulings by Judges against Christians who had claimed their faith bought them into conflict with the law or their employer, a report from a cross-party Christian parliamentary group found that Britain was failing to protect the rights of Christians to follow their faith. The Group analysed 32 recent cases where Christians claimed they received unfair treatment under the law. Cases in their investigation included:
- Celestina Mba, a Christian who claimed she was forced from her job as a carer for disabled children with Merton Council because she refused to work on Sunday. This was a complicated case, which appears to have involved misunderstanding on both sides of what was expected/required. Ms Mba eventually resigned and claimed indirect discrimination on the grounds of religion or belief and constructive dismissal. The Employment Tribunal held that the employer’s business requirements outweighed Ms Mba’s desire not to work on a day she believes is a day of worship and rest. The Tribunal also found that Ms Mba’s belief about Sunday working was not a ‘core component’ of the Christian faith and rejected her claims.
- Gary McFarlane, a Christian relationship counsellor was sacked by Relate, the counselling service, for refusing to give sex therapy to gay couples. Mr McFarlane claims his dismissal was religious discrimination and his case is one of the four at Strasbourg.
- Lillian Ladele, a registrar of births, deaths and marriages from London who declined to officiate at same-sex civil partnership ceremonies, claimed her dismissal constituted religious discrimination and her case is one of the four at Strasbourg.
- Nadia Eweida, who was sent home from her job as a British Airways check-in clerk for wearing a silver cross. Wearing visible jewellery was in breach of the Company’s dress code, unless it was a religious requirement. Miss Eweida claimed religious discrimination and harassment, even though she accepted that wearing the cross was a personal preference and not a requirement of her religion, but was unsuccessful at an Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal. Miss Eweida’s case is now at the European Court of Human Rights who have to decide if BA, in refusing to make an exception for Miss Eweida, unjustifiably interfered with her freedom to manifest her religious beliefs.
- Shirley Chaplin, a nurse from Exeter, who was barred from her job in a hospital for wearing a cross. Ms Chaplin’s case is also at Strasbourg, asking the European Court to overturn the UK rulings against her.
- Peter and Rosemary Bull who owned a Guest House in Cornwall, who refused to allow a gay couple to stay in a double room.
The group’s report found the Equality Act 2010 had set the rights of different groups in competition with each other, with those of Christians relegated below those of the others.
The Group called on the Government to consider requiring Judges “to weigh up whether employers have taken ‘reasonable’ steps to accommodate the religious beliefs of workers,” to help balance ‘competing’ rights, and ensure that “religious liberty and identity is preserved by accommodating those who by their deeply held beliefs would prefer not to provide them certain goods and services”.
A London-based retailer was found to have forced a Muslim employee to resign after she wore a headscarf to work. Ms Farrah bought a claim for unfair discrimination and direct religious discrimination against her former employer, Global Luggage Company, after the Company moved Ms Farrah to a different store to maintain it’s “trendy” image and later forced her to resign.
Ms Farrah worked in both the Oxford Street and Piccadilly branches of the shop, however the day after she work a headscarf to work one of the Company directors moved her to the Oxford Street store and changed her rota so that she no longer worked at the Piccadilly store.
Ms Farrah asked whether the reason for the move was because she had worn a headscarf and she was told that the company was “trying to maintain an image at Piccadilly” and that it was “trying to be trendy”. A couple of months later Ms Farrah was forced to resign after she took an extended lunch break. The Tribunal ruled that the Company had ‘seized on the claimant’s admitted misconduct as a pretext for dismissing her’ and that the real reason for her forced resignation was that she had worn a headscarf.
Ms Farrah won her claim for unfair dismissal but lost her claim for direct religious discrimination. However, the Judge said that had she brought a claim for indirect discrimination instead they would have likely been ruled in her favour!
This case followed David Cameron’s announcement in July 2012 that he would ‘change the law’ to allow people to wear religious symbols at work, when commenting on Nada Eweida’s case at Prime Ministers Questions in Parliament.
His words were criticised by some as the Government is opposing the application to the European Court of Human Rights of this and the other cases. Employment law experts have commented that “specifically changing the law to allow religious symbols to be worn seems an unnecessary step – there is no rule banning religious symbols at work … any new law would cause more problems than it solved.”
The two cases at the European Court of Human Rights involving the wearing of a cross, are being represented by the Government body, the Equality and Human Rights Commission, which says that British Judges have interpreted UK discrimination laws too narrowly. The other two cases are not being supported by the Equality and Human Rights Commission.
A successful outcome in Strasbourg for the complainants would mean changes or adjustments to UK legislation and the way it is interpreted which may require Employers in future to ‘accommodate expression of religion’ by their workers. The outcome should be known in a few months!
Workline is supported by Employment Lawyers Goodman Derrick LLP. Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.
Photo by Phillie Casablanca
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