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10th September, 2012

Christians take religious discrimination claims to European Court of Human Rights

Discrimination law exists in order to protect employees from being subject to unlawful discrimination in the workplace.

Under the provisions of the Equality Act 2010 an employer will be held to have indirectly discriminated against an employee where they apply a provision, criterion or practice that would apply equally to other employees, but puts or would put those who share that employee’s protected characteristic (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation) at a particular disadvantage; and the employer cannot objectively justified its use.

For many employers, questions can remain over how these protective provisions are to be applied in practice. For example, can an employee be required to refrain from wearing religious symbols in the workplace? Or can an employee be dismissed for refusing to act in a manner which is against their beliefs? These challenging questions have now been put to the European Court of Human Rights as four individuals cases’ will be considered for the clarification of the correct interpretation and application, of the law in this area.

Nadia Eweida, a Pentecostal Christian and former British Airways’ employee is one such individual. She recently lost her claim for religious discrimination in the work place after she was sent home for refusing to remove a necklace with a cross pendant.

Further evidence of this narrow interpretation of the law can be seen in the case of Nurse Shirley Chaplin. In 2010 she lost her claim for religious discrimination because it was said that wearing a cross contravened health and safety guidelines. Relationship counsellor Gary McFarlane failed in his application to challenge his dismissal following his refusal to provide therapy to homosexual couples.

Furthermore, in 2010 the Supreme Court ruled against registrar Lilian Ladele who sought to challenge disciplinary action taken against her due to her refusal to conduct a same sex civil partnership ceremony. All four lost their claims separately in the Employment Tribunals and are now having their claims heard together in the European Court of Human Rights. Miss Eweida and Mrs Chaplin are claiming that UK law “failed adequately to protect their right to manifest their religion” contrary to Article 9 of the European Convention on Human Rights. They are also claiming that the previous tribunal rulings breached Article 14 of the Convention, which renders discrimination based on religion unlawful. In addition, Mr McFarlane is claiming his right to a fair trial and right to a private life in the UK have been breached and Miss Ladele is claiming she lost her right to an “effective remedy”.

These cases are set to be heard in the European Court of Human Rights in the coming weeks and could lead to a landmark ruling in terms of how employers should manage the religious beliefs of their employees. The National Secular Society has said that a ruling in favour of these individuals would serve to undermine the current UK equality law. James Eadie, who is representing the government in this matter, has said that employees’ rights have to be limited in order to protect the rights of others: “these four linked cases at their core raise questions about the rights, and the limits to the rights, of employees to force their employers to alter employment conditions, so as to accommodate the employees’ religious practices.” Whatever the decision of the court may be, it will undoubtedly provide much needed clarification in respect of the interpretation and application of current discrimination law in respect of religious beliefs.

For further information and guidance on claims of discrimination in the work place please contact Claire Brook on 01244 405575 or send an email to [email protected]



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