Balancing an Employee’s Human Rights with the needs of an Employer
A recent ruling by the European Court of Human Rights (ECHR) that a Christian employee had her human rights breached by not being allowed to wear a visible cross at work has been talked about a lot in the media, but what does it mean for employers?
Nadia Eweida took her case to the ECHR after being sent home from her role at British Airways after she refused to remove a cross that was at odds with the company's dress code.
However, the consequences of the Eweida ruling mean that the outcome of the case will not necessarily have a far-reaching impact for all workplaces, beyond the fact that there is now an increased requirement for employers to justify any dress code that could be discriminatory against religious groups. Such dress codes could include those that preclude employees from wearing items such as a visible cross, hijab or turban.
But some employers' bans on items that pose health and safety risks - such as hospital staff being unable to wear jewellery for hygiene reasons - will be more easily justified. This relates to one of the three other cases heard alongside Eweida's - that of Shirley Chaplin, a nurse who claimed she had been discriminated against for being unable to wear a cross at work. Her employer's dress code required jewellery not to be worn for hygiene reasons. She lost her case.
Taken together, these cases mean that a rule in a uniform policy that leads to a prohibition of the wearing of religious items such as visible crosses and hijabs will be very hard to justify purely on the basis of the items not fitting a particular company image. However, a ban on an item that genuinely poses health and safety risks is likely to be justified.
Therefore reasonable requests from employees cannot be refused without seriously considering them, and that uniform policies and dress codes need to be made with consideration of the issues of religious dress and symbols.
As well as the Eweida and Chaplin cases, the ECHR also ruled on two other cases brought by Christian employees who objected to carrying out certain duties on the basis of their religious beliefs. Gary McFarlane, a relationship counsellor, was dismissed for his objection to offering sex therapy to same-sex couples. Lillian Ladele, a registrar, was disciplined after refusing to conduct same-sex civil partnership ceremonies. The ECHR did not rule in their favour.
The cases of the registrar and the counsellor show that employees cannot expect every request to be allowed - especially not if it interferes with a human right of another person - not to be discriminated against on grounds of sexual orientation. This means that employers are not generally expected to compromise their equal opportunities policies for the sake of allowing individuals to 'opt out' of duties that they happen to disagree with because of their religious views.
Posted on 19 Nov 2016