European Court rules on uniform policy and religious beliefs

Posted: 15/01/2013

Following a long legal battle, the European Court of Human Rights has today ruled that British Airways' uniform policy was discriminatory because it infringed the religious belief of an employee.

Nadia Eweida was sent home from her customer-facing role at British Airways in 2006 after she refused to remove a visible crucifix, which was incompatible with BA’s uniform policy. The European Court held that the UK courts had given too much weight to BA’s desire to project a certain image. As Ms Eweida's cross was discreet, and there was no evidence that the wearing of items such as turbans (by Sikhs) and hijabs (by Muslims) by other employees had any negative impact on British Airways' brand, the airline’s uniform policy was held to be unlawful.

However, in another case involving a nurse, who was dismissed after she insisted on wearing a crucifix in breach of her employer's uniform code, the European Court held that the hospital’s reason for asking Shirley Chaplin to remove the cross was for the protection of health and safety in a ward. As the interference in this case was necessary in a democratic society, there was no breach of her human rights.

Two other employees who took their cases to the European Court also lost their appeals. Gary McFarlane, a relationship counsellor, was dismissed for his objection to offering sex therapy to same-sex couples while Lillian Ladele, a registrar, was disciplined after refusing to conduct same-sex civil partnership ceremonies. The European Court commented that member states have a wide margin of appreciation when it comes to striking a balance between competing Convention rights, in this case between a person’s sexual orientation and another person’s religious beliefs. The margin of appreciation was not exceeded by either case so the two employees had not been discriminated against because of their religious belief.

Commenting on today’s judgment, employment partner Sally Nesbitt said: “Employers should review their current uniform policy to ensure that any specific requirements or prohibition do not discriminate against employees with certain religious beliefs, either directly or indirectly. Where possible, reasonable requests by employees to display their symbols of faith should be accommodated and if this is not possible for any business reasons, the decision should be objectively justified and corroborated by employers.

“As to competing rights, it would be difficult for employees to refuse to perform their contractual obligations where they feel that this would conflict with their religious views. Therefore, banqueting staff who refuse to work at a civil partnership reception hosted by the hotel may not have much legal redress if they are disciplined or their contract is terminated by the hotel for refusing to perform their duties.”

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