Following important guidance from the European Court of Human Rights on the extent to which religious observance in the workplace is protected, the UK Equality and Human Rights Commission (EHRC) has issued guidance for employers.
In the case of Eweida v British Airways, Ms Eweida (who had lost her claim in the UK courts) argued that a uniform policy that prevented her from wearing a visible cross on her uniform breached her Article 9 right to manifest her religion. In all the circumstances the Court decided that the ban was disproportionate.
At the same time, the European Court of Human Rights considered three linked cases from the UK.
In another uniform case, a ban on a nurse wearing a cross was upheld on grounds of health and safety (Chaplin).
In the Ladele case, the Court did not uphold the claim by a registrar who did not wish to carry out civil partnerships for same sex couples and was disciplined, that her human rights had been breached. Likewise a relationship counsellor who did not wish to provide sexual therapy for same-sex couples was not protected (Mcfarlane).
These cases might cause confusion for employers trying to navigate the tricky issue of respecting religious beliefs in the workplace, especially where this might involve a clash between the views of one group and another.
Employers must not discriminate against staff on grounds of their religion, religious belief or philosophical belief, and must take steps to ensure that harassment on one of these grounds does not occur.
It’s clear that employers are entitled to operate a uniform policy in the interests of projecting a corporate image, or of promoting health, safety and hygiene.
What is also clear from the European judgement is that in introducing such policies, employers must carefully weigh up the impact on different members of staff, and where possible must adjust the policy to allow for different religious or cultural practices. So for example many organisations now permit women to wear trousers where because of their beliefs, it is not appropriate for them to reveal their legs.
The same would apply to working arrangements, or job rotas, which required staff to work during periods of religious observance.
The new guide from EHRC aims to provide practical guidance to employers on how to deal with these issues, and it offers a number of case studies which may be of value.
The guide encourages employers to consider carefully any request for an adjustment to policies or working arrangements.
This might revolve around:
- Uniform or dress code;
- A request not to be rostered to work on a Friday evening by a Jewish member of staff;
- A request for breaks during the day to allow a Muslim employee to pray.
In all cases, the guide suggests that employers think about whether the adjustment can be offered, bearing in mind the impact this may have on other staff members. It may not always be possible to only provide particular shifts where, for example, 24 hour patient care is needed.
The most difficult questions will relate to situations where a person’s deeply held convictions clash with the needs or interests, either of other employees or of the group to which the organisation offers services.
Thus in the Ladele case, offering civil partnerships was a fundamental requirement of the role; and in the Mcfarlane case, it was part of the ethos of the organisation that they should offer their services to everyone without any discrimination.
Our advice to employers is:
- Maintain an open-minded and flexible attitude and be prepared to accommodate different beliefs in the workplace.
- Be informed about the diverse cultural and religious practices within your workforce.
- If a particular request is made, weigh this up carefully before making a decision, taking into account factors such as how easy it is to grant the request; any health and safety issues; and the effect on other staff if it is granted.
- Make sure that you have a policy in place forbidding harassment of any kind, that staff are aware of it and that it is implemented.
For more information, see the EHRC guide.