Indirect discrimination: Protecting religious beliefs - what are employers required to do?

12 March 2013

The European Court of Human Rights (ECHR) has given its decision in the cases of four British employees who complained that UK law did not give enough protection to their freedom to manifest their religion or belief as required by the European Convention on Human Rights (the Convention).

Only one claimant succeeded. Readers may remember the case of Eweida v BA. All the UK courts had rejected MS Eweida’s claim that BA’s uniform code, which banned the visible wearing of a crucifix, amounted to indirect discrimination against her on the grounds of religion or belief.

The ECHR has now said that the UK anti-discrimination law (the Equality Act) had not done enough in that case to protect Ms Eweida’s religious beliefs. The UK courts had focussed too much on the legitimacy of the uniform code and the proportionality of the measures taken by BA but had not given enough weight to Ms Eweida’s beliefs. A fair balance had not been struck between the two competing rights.

The ECHR rejected the following arguments that had been successfully argued by the employer in the UK courts and stated that -

  • The fact that the wearing of a crucifix is not a religious requirement did not mean that it could not be considered as a ‘manifestation’ of religious belief. 

  • The fact that an employee always has the option of resigning from a job does not mean that there has been no interference with their religious freedom. This will simply be a matter to be weighed in the balance when deciding whether a fair balance was struck between employer and employee.

The ECHR did however go on to reject the other three claims. It considered that in each of those cases the UK law fell within the ‘wide margin of appreciation’ that was required when trying to balance competing rights against each other.

Points to note –

  • Where do employers go from here? The key words are still ‘proportionality’ and a ‘reasonable accommodation’ so each case will depend on its facts. The ECHR has, it seems, very deliberately decided not to give any general guidance to employers. 

  • However, note that Ms Eweida‘s claim succeeded even though it was only she who was disadvantaged by not being allowed to wear a crucifix. Under UK law, to succeed in a claim of indirect discrimination, the claimant must show that the ‘provision criterion or practice’ disadvantages not only them but also all employees who share their ‘protected characteristic’ (in this case her religion). This will remain the case unless or until the UK law is changed.