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ECHR confirms no changes to UK religious discrimination law required, says expert

Anti-discrimination provisions set out under UK employment law provide adequate protection to individuals asserting their right to manifest their religion or beliefs, an expert has said.16 Jan 2013

Rebecca Stephen of Pinsent Masons, the law firm behind Out-Law.com, was commenting as the European Court of Human Rights (ECHR) found that a member of British Airways staff was entitled to wear a cross to work, regardless of her employer's uniform policy. At the same time the ECHR rejected three other claims for religious discrimination by Christians, stating that the right to manifest religion "must be balanced against the rights of others".

Both the British Airways employee, Nadia Eweida, and a nurse, Shirley Chaplin, had argued that they had been unlawfully prevented from wearing crosses in the workplace due to their employers' uniform policies. Chaplain's claim was rejected, as were the claims of a registrar and counsellor who had argued that their religious beliefs prevented them from providing services to homosexual couples.

"These have been long awaited decisions and the cases confirm that no change in the law is required," employment law expert Stephen said. "National discrimination law does adequately provide sufficient protection for individuals asserting their rights to manifest religion; this right is however qualified, allowing limitations for the protection of the rights and freedoms of others. It is clear that every case is going to turn on its facts."

"Banning the wearing of crosses does interfere with an individuals' right to manifest their belief and this argument does not fail because the individual cannot show that all Christians believe that it is necessary to wear a cross. However, whether the action taken by the employer is unlawful turns on balancing the individual rights on the one hand, against the employer's 'business case' behind the rule on the other."

As the objections of Chaplin's employer were based on the protection of health and safety in a hospital ward, this "tipped the scales in favour of the employer", Stephen said. This did not happen in Eweida's case, as the court held that the UK courts had put too much emphasis on British Airways' desire to project a certain corporate image, she said.

Eweida began working as a part-time member of check-in staff for British Airways in 1999. The company's uniform code required women to wear a high-necked shirt and cravat, with no visible jewellery. Items that staff had to wear for religious reasons had to be covered by the uniform unless specific approval was given. She began wearing a cross openly as a sign of commitment to her Christian faith in May 2006, and was sent home without pay in the September until she agreed to comply with the uniform code. The company made an offer of administrative work without the need for a uniform or customer contact to Eweida in October 2006, which she refused. She returned to work in February 2007, when the company's policy was changed.

Chaplin was working as a nurse on a geriatrics ward in February 2007, when new uniforms with 'v-necks' were introduced in the hospital. She asked to be allowed to continue to wear a cross on a chain around her neck, which was refused on the grounds that it could cause injury if a patient pulled on it or if it came into contact with an open wound. She was moved into a non-nursing temporary position in November 2009 and was made redundant the following July.

"As with Ms Eweida ... the Court considers that [Chaplin's] determination to wear the cross and chain at work was a manifestation of her religious belief and that the refusal by the health authority to allow her to remain in the nursing post while wearing the cross was an interference with her freedom to manifest her religion," the ECHR said in its judgment.

"The Court considers that, as in Ms Eweida's case, the importance for the second applicant of being permitted to manifest her religion by wearing her cross visibly must weigh heavily in the balance. However, the reason for asking her to remove the cross, namely the protection of health and safety on a hospital ward, was inherently of a greater magnitude than that which applied in respect of Ms Eweida," it said.

"Moreover, this is a field where the domestic authorities must be allowed a wide margin of appreciation. The hospital managers were better placed to make decisions about clinical safety than a court, particularly an international court which has heard no direct evidence," it concluded.

In the third and fourth cases, the ECHR ruled that both employers were correct to require their employees not to discriminate against others on the grounds of their sexual orientation, regardless of their personal beliefs. The cases involved Lillian Ladele, a registrar who refused to carry out same-sex partnership ceremonies, and Relate counsellor Gary McFarlane.

"Weighing the balance, the court was mindful that in requiring these employees to carry out these aspects of their job, the employers were seeking to ensure that their service users were not discriminated against on the grounds of their sexual orientation," employment law expert Rebecca Stephen said.

"These latter two cases highlight a difficult area, showing that there is no hierarchy of rights. An individual cannot seek to use their right not to be discriminated against on the grounds of religion or belief to 'trump' the rights of others," she said.

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