religion in the workplace – unsurprisingly a lack of clarity from the ECHR but some pointers for employers
Last month I reported the decision of the Employment Appeal Tribunal in the case of Celestine Mba v London Borough of Merton and, as promised, I am now returning to the issue of religious observance in the context of employment law.
The decision of the European Court of Human Rights (ECHR) in the combined cases of Eweida, Chaplin, Ladele, and McFarlane has unsurprisingly attracted a good deal of attention, and it seems certain to have a big impact. All of the cases centred around the right to manifest a religious belief, and whether UK law protected that right sufficiently. Two of the cases concerned how far an employer has to accommodate an employee’s wish to wear a necklace with a crucifix pendant at work, and the others concerned a relationship counsellor and a registrar respectively, who did not want to perform those parts of their jobs which conflicted with their views on same sex relationships, which in turn were based on their Christian beliefs.
In the cases relating to the wearing of crosses one failed, the ECHR taking the view that the employing health authority’s health and safety concerns justified their “no crosses” rule. The other succeeded because British Airways’ wish for corporate uniformity did not justify a rule which hampered an employee’s freedom of expression. Neither of the cases in which an employee wished to opt out of duties they regarded as inconsistent with their religious beliefs succeeded. In these cases there was a need to balance the right to manifest a religious belief which entailed disapproval of homosexuality and the right not to suffer discrimination on the ground of sexual orientation – within which there is a fairly broad margin. In the case of the registrar, the employer’s legitimate aim of providing a non-discriminatory service justified their decision to insist that all registrars conduct civil partnership ceremonies. Another factor to weigh in the balance was the question of choice – the relationship counsellor had gone into the job knowing what the duties entailed and that he could be required to perform duties he regarded as inconsistent with his beliefs, namely offering psychosexual counselling to same sex couples.
However, the tricky overlap between religion and employment law remains. Notwithstanding the decision of the European Court the Most Reverend Dr John Sentamu, Archbishop of York, unsurprisingly takes the view that entitlement to demonstrate religious observance should prevail: