The Changing Shape of Religious Discrimination Law in the UK

Prior to 2003, there was no explicit UK statutory protection against discrimination on the grounds of religion or belief. Employees instead had to seek protection under the Race Relations Act 1976 or the Human Rights Act 1998. This led to some perplexing results ' for example, Jews and Sikhs were recognized by the courts as ethnic groups, but Muslims and Rastafarians were not. In general, UK courts narrowly interpreted claims based on infringement of the right to freedom of religion under the Human Rights Act, on the grounds that an employee was free to find new employment, thereby removing himself from the situation that allegedly restricted his religious freedom.

The law in the UK changed in December, 2003, when the Employment Equality (Religion or Belief) Regulations 2003 (the 2003 Regulations) came into force. The 2003 Regulations prohibited direct and indirect discrimination, and discrimination by way of victimization or harassment on the grounds of any religion or religious or philosophical belief.

The Equality Act 2010 combined previous legislation addressing discrimination on a number of different grounds ' such as age, sex, race and religion or belief ' into one overarching anti-discrimination law. With regard to religious discrimination, the terms of the legislation remained consistent with the 2003 Regulations.

The Current Shape of Religious Discrimination Law

The recent decision in Eweida has sharpened employers' focus on the requirements of religious discrimination law. The case concerned four separate applicants who complained that UK domestic law failed adequately to protect them from interference with their right to manifest their religious beliefs as Christians.

Ms. Eweida, a British Airways employee, and Ms. Chaplin, a nurse, were prohibited from wearing visible crosses on necklaces at work. The other two claimants, Ms. Ladele and Mr. McFarlane, were disciplined for their refusal to comply with instructions from their employers to provide services to same-sex couples. Ms. Eweida was the only successful claimant.

Religious Discrimination And Employer Uniform Policies

The UK courts found that wearing a cross was not a mandatory requirement of the Christian faith and held that Ms. Eweida was therefore unable to show that British Airways' uniform policy discriminated against a defined group, i.e., Christians ' a necessary component of a claim for indirect discrimination under UK law. However, she was successful in the European Court, which found that the UK courts had failed to strike a fair balance between Ms. Eweida's desire to manifest her religious belief and British Airways' wish to project a certain corporate image.

Even though the European Court held that a corporation's desire to project a particular image was a legitimate interest, it found that, when balanced with the claimant's right to protection against religious discrimination, the UK court had accorded too much weight to the company's goal. It found that Ms. Eweida's cross was discreet and could not have detracted from her professional appearance. In addition, the European Court noted there was no evidence that the wearing of other items of religious clothing, such as hijabs or turbans, had any negative impact on British Airways' brand or image. It also found relevant that British Airways subsequently amended its uniform policy to permit the visible wearing of religious symbolic jewelery, demonstrating that the earlier prohibition was not of crucial importance.

An important aspect of this decision is that it establishes a right to protection against religious discrimination even where the manifestation in question, i.e., wearing a visible cross, is not required by the particular religion and the employee cannot necessarily demonstrate disadvantage to a group.'

In finding in Ms. Eweida's favor, the European Court effectively overruled the decision of the UK courts that she had not been discriminated against on the grounds of her religion. National courts in all European Member States are obliged to interpret their respective domestic law in line with decisions of the European Court. This means the European Court's judgment in Eweida will have a bearing on any future claims brought in the UK, and other European jurisdictions, relating to religious discrimination and employers' policies which may infringe upon employees' rights to manifest their religion.

The European Court's decision against Ms. Chaplin focused on her job responsibilities as a nurse for the National Health Service. Her employer denied her permission to wear a cross on the grounds of health and safety concerns, including that the cross could be tugged by a patient or could come into contact with open wounds. In contrast to the decision on Ms. Eweida's claim, the European Court found that the employer's legitimate interests outweighed Ms. Chaplin's right to be protected against religious discrimination.

Conflict Between Religious Beliefs and Discrimination on Grounds of Sexual
Orientation

Ms. Ladele was a registrar of births, deaths and marriages for a local authority. Following the implementation of the Civil Partnership Act in December, 2005, which allowed same-sex couples to enter into a union similar to marriage, her employer required all registrars who performed marriage ceremonies to act as civil partnership registrars. Ms. Ladele brought a claim for indirect religious discrimination, asserting that the authority's policy violated her Christian religious beliefs.

The European Court found that the local authority's interest in promoting equal opportunities was legitimate, in view of the legal recognition and protection of the relationships of same sex-couples. It held that Ms. Ladele's desire to have her religious views respected did not override the authority's concern to ensure that services were provided in a non-discriminatory manner to the homosexual community.

Mr. McFarlane served as a relationship counselor for a private counseling service. The counseling service dismissed him following his refusal to provide counseling services to gay couples. The European Court reached a similar outcome, finding that his dismissal was a proportionate means of achieving the legitimate aim of providing counseling services to all sections of the community regardless of sexual orientation. The European Court held that the employee's decision to enter into a contract of employment and to undertake responsibilities which he knew would have an impact on his freedom to manifest his religious belief tipped the balance in favor of the interests of the community as a whole and the employer's policy of providing services without discrimination.

The Future of Religious Discrimination Law in the UK

While the decisions in the claims of Ms. Eweida, Ms. Chaplin and Mr. McFarlane are easy to understand, it is perhaps more difficult to accept the outcome of Ms. Ladele's application, given that she had been working for her employer for some time before the new policy on civil partnerships was implemented. The Ladele decision, therefore, provides a helpful indication of where the balance of competing rights to protection from discrimination lies under European law. In striving to strike a fair balance between the rights of employees to manifest their religion, and the rights of homosexuals not to be discriminated against, the European Court appears to lean towards the latter, even where the employer's policy was imposed upon the employee years after she commenced work for her employer.

Taken as a whole, the practical effect of the European Court's decision in Eweida is that employers will need to exercise care when taking decisions to discipline or dismiss employees on the grounds of actions they take because of their religious beliefs. It is possible, in light of Eweida, that such decisions may only be justifiable in circumstances where an employer could show that the employee's actions could potentially put his, or others' health and safety at risk or could otherwise infringe on others' human rights. Simply demonstrating that an employee's manifestation of her religion or belief is detrimental to an employer's corporate image may not be sufficient.

However, the location of the boundary lines remains somewhat uncertain. For example, the European Court was influenced by the fact that Ms. Eweida's cross was discreet and British Airways subsequently amended its uniform policy to permit this type of religious expression. It is impossible to know whether the European Court would have found in Ms. Eweida's favor if the necklace in question had been particularly obtrusive or if the company had not subsequently amended its policy.

Conclusion

Notwithstanding the fact that there is some uncertainty surrounding the exact impact of this decision,' employers with operations in the UK are advised to carefully consider their current workplace rules and policies. Even where other members of a particular religion may not feel' strongly about a particular manifestation of faith, such as the wearing of a visible cross, an employee may still be entitled to protection against unfavorable treatment so long as the manifestation is intimately linked to her religion. Employers will need to replace a zero-tolerance rule with a more nuanced approach.

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John D. Shyer, a member of this newsletter's Board of Editors, is a labor and employment law partner in the New York office of Latham & Watkins LLP and co-chair of the firm's Employment Law practice group. Catherine Drinnan is a partner in the Benefits & Compensation practice group in the firm's London office, and Gretchen Lennon is an associate in that group.

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Multinational companies with operations in the United Kingdom should take note that the law pertaining to protection against religious discrimination in the workplace is evolving. Until very recently, employers in the UK faced little risk from claims of religious discrimination, especially as compared with the legal environment in the United States, where employees' rights to engage in many forms of religious expression have been protected for decades. As a result of a recent decision, employers in the UK need to take a fresh look at their practices.

The European Court of Human Rights (the European Court) has handed down an important decision concerning discrimination on the grounds of religion in the workplace in the case of Eweida and Others v United Kingdom. In this decision, the European Court sought to clarify the extent to which employees may manifest their religious beliefs in the workplace, even when their actions violate their employer's established personnel policies. The decision explores factors offered by employers as objective justification for potentially discriminatory policies and balances those against employees' rights to freely manifest their religion.

Development of Statutory Protection Against Religious Discrimination

Prior to 2003, there was no explicit UK statutory protection against discrimination on the grounds of religion or belief. Employees instead had to seek protection under the Race Relations Act 1976 or the Human Rights Act 1998. This led to some perplexing results ' for example, Jews and Sikhs were recognized by the courts as ethnic groups, but Muslims and Rastafarians were not. In general, UK courts narrowly interpreted claims based on infringement of the right to freedom of religion under the Human Rights Act, on the grounds that an employee was free to find new employment, thereby removing himself from the situation that allegedly restricted his religious freedom.

The law in the UK changed in December, 2003, when the Employment Equality (Religion or Belief) Regulations 2003 (the 2003 Regulations) came into force. The 2003 Regulations prohibited direct and indirect discrimination, and discrimination by way of victimization or harassment on the grounds of any religion or religious or philosophical belief.

The Equality Act 2010 combined previous legislation addressing discrimination on a number of different grounds ' such as age, sex, race and religion or belief ' into one overarching anti-discrimination law. With regard to religious discrimination, the terms of the legislation remained consistent with the 2003 Regulations.

The Current Shape of Religious Discrimination Law

The recent decision in Eweida has sharpened employers' focus on the requirements of religious discrimination law. The case concerned four separate applicants who complained that UK domestic law failed adequately to protect them from interference with their right to manifest their religious beliefs as Christians.

Ms. Eweida, a British Airways employee, and Ms. Chaplin, a nurse, were prohibited from wearing visible crosses on necklaces at work. The other two claimants, Ms. Ladele and Mr. McFarlane, were disciplined for their refusal to comply with instructions from their employers to provide services to same-sex couples. Ms. Eweida was the only successful claimant.

Religious Discrimination And Employer Uniform Policies

The UK courts found that wearing a cross was not a mandatory requirement of the Christian faith and held that Ms. Eweida was therefore unable to show that British Airways' uniform policy discriminated against a defined group, i.e., Christians ' a necessary component of a claim for indirect discrimination under UK law. However, she was successful in the European Court, which found that the UK courts had failed to strike a fair balance between Ms. Eweida's desire to manifest her religious belief and British Airways' wish to project a certain corporate image.

Even though the European Court held that a corporation's desire to project a particular image was a legitimate interest, it found that, when balanced with the claimant's right to protection against religious discrimination, the UK court had accorded too much weight to the company's goal. It found that Ms. Eweida's cross was discreet and could not have detracted from her professional appearance. In addition, the European Court noted there was no evidence that the wearing of other items of religious clothing, such as hijabs or turbans, had any negative impact on British Airways' brand or image. It also found relevant that British Airways subsequently amended its uniform policy to permit the visible wearing of religious symbolic jewelery, demonstrating that the earlier prohibition was not of crucial importance.

An important aspect of this decision is that it establishes a right to protection against religious discrimination even where the manifestation in question, i.e., wearing a visible cross, is not required by the particular religion and the employee cannot necessarily demonstrate disadvantage to a group.'

In finding in Ms. Eweida's favor, the European Court effectively overruled the decision of the UK courts that she had not been discriminated against on the grounds of her religion. National courts in all European Member States are obliged to interpret their respective domestic law in line with decisions of the European Court. This means the European Court's judgment in Eweida will have a bearing on any future claims brought in the UK, and other European jurisdictions, relating to religious discrimination and employers' policies which may infringe upon employees' rights to manifest their religion.

The European Court's decision against Ms. Chaplin focused on her job responsibilities as a nurse for the National Health Service. Her employer denied her permission to wear a cross on the grounds of health and safety concerns, including that the cross could be tugged by a patient or could come into contact with open wounds. In contrast to the decision on Ms. Eweida's claim, the European Court found that the employer's legitimate interests outweighed Ms. Chaplin's right to be protected against religious discrimination.

Conflict Between Religious Beliefs and Discrimination on Grounds of Sexual
Orientation

Ms. Ladele was a registrar of births, deaths and marriages for a local authority. Following the implementation of the Civil Partnership Act in December, 2005, which allowed same-sex couples to enter into a union similar to marriage, her employer required all registrars who performed marriage ceremonies to act as civil partnership registrars. Ms. Ladele brought a claim for indirect religious discrimination, asserting that the authority's policy violated her Christian religious beliefs.

The European Court found that the local authority's interest in promoting equal opportunities was legitimate, in view of the legal recognition and protection of the relationships of same sex-couples. It held that Ms. Ladele's desire to have her religious views respected did not override the authority's concern to ensure that services were provided in a non-discriminatory manner to the homosexual community.

Mr. McFarlane served as a relationship counselor for a private counseling service. The counseling service dismissed him following his refusal to provide counseling services to gay couples. The European Court reached a similar outcome, finding that his dismissal was a proportionate means of achieving the legitimate aim of providing counseling services to all sections of the community regardless of sexual orientation. The European Court held that the employee's decision to enter into a contract of employment and to undertake responsibilities which he knew would have an impact on his freedom to manifest his religious belief tipped the balance in favor of the interests of the community as a whole and the employer's policy of providing services without discrimination.

The Future of Religious Discrimination Law in the UK

While the decisions in the claims of Ms. Eweida, Ms. Chaplin and Mr. McFarlane are easy to understand, it is perhaps more difficult to accept the outcome of Ms. Ladele's application, given that she had been working for her employer for some time before the new policy on civil partnerships was implemented. The Ladele decision, therefore, provides a helpful indication of where the balance of competing rights to protection from discrimination lies under European law. In striving to strike a fair balance between the rights of employees to manifest their religion, and the rights of homosexuals not to be discriminated against, the European Court appears to lean towards the latter, even where the employer's policy was imposed upon the employee years after she commenced work for her employer.

Taken as a whole, the practical effect of the European Court's decision in Eweida is that employers will need to exercise care when taking decisions to discipline or dismiss employees on the grounds of actions they take because of their religious beliefs. It is possible, in light of Eweida, that such decisions may only be justifiable in circumstances where an employer could show that the employee's actions could potentially put his, or others' health and safety at risk or could otherwise infringe on others' human rights. Simply demonstrating that an employee's manifestation of her religion or belief is detrimental to an employer's corporate image may not be sufficient.

However, the location of the boundary lines remains somewhat uncertain. For example, the European Court was influenced by the fact that Ms. Eweida's cross was discreet and British Airways subsequently amended its uniform policy to permit this type of religious expression. It is impossible to know whether the European Court would have found in Ms. Eweida's favor if the necklace in question had been particularly obtrusive or if the company had not subsequently amended its policy.

Conclusion

Notwithstanding the fact that there is some uncertainty surrounding the exact impact of this decision,' employers with operations in the UK are advised to carefully consider their current workplace rules and policies. Even where other members of a particular religion may not feel' strongly about a particular manifestation of faith, such as the wearing of a visible cross, an employee may still be entitled to protection against unfavorable treatment so long as the manifestation is intimately linked to her religion. Employers will need to replace a zero-tolerance rule with a more nuanced approach.

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John D. Shyer, a member of this newsletter's Board of Editors, is a labor and employment law partner in the New York office of Latham & Watkins LLP and co-chair of the firm's Employment Law practice group. Catherine Drinnan is a partner in the Benefits & Compensation practice group in the firm's London office, and Gretchen Lennon is an associate in that group.

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