Whether to allow employees to wear religious symbols at work has been a difficult question for employers for the last few years. Last week, Prime Minister David Cameron waded in to the debate by stating that employees ought to be allowed to wear religious symbols.
The question arose during Prime Minister’s question time on Wednesday 11 July and was based on the referral of the Eweida case to the European Court of Justice (ECJ).
Employees’ Rights On Religious Grounds – Eweida
In Eweida, British Airways sent Mrs Eweida home from work after she refused to remove her crucifix necklace or keep it underneath her uniform, a breach of the dress code which prohibited staff from wearing visible jewellery. The policy also stated that accessories or clothing required for mandatory religious reasons should be covered by uniform unless this was not possible due to the nature of the item and the way it was to be worn. This meant that Muslim hijabs and Sikh turbans were permitted to be on show, but Sikh bangles were not.
She claimed discrimination and harassment but was unsuccessful in the Employment Tribunal, Employment Appeal Tribunal and the Court of Appeal. The reasoning behind this was that it was a personal decision by the employee to wear a cross, and she could not show that the policy put Christians at a disadvantage. Her case has now been referred to the ECJ.
During the question session, the PM said that if necessary, he would change the law to allow employees to wear religious symbols.
David Cameron’s comments have confused commentators because this message is at odds with the stance that the Government has taken in its submissions to the ECJ.
Case Law
Currently, under the Equality Act 2010, employees (and others) are protected from discrimination, harassment and victimisation in the workplace on grounds of religion or belief.
This has led to variety of cases being brought to test the boundaries of this protection:
In Chaplin, a Christian nurse claimed discrimination when she was not permitted to wear a crucifix necklace. The Tribunal held that the policy did not put Christians at a disadvantage and that in addition, the policy was in accordance with protecting employee and patient health and safety.
In Dhinsa, a trainee prison officer brought a claim of discrimination after he was not permitted to carry his kirpan (Sikh dagger) inside the prison. The Tribunal accepted that the policy did place Amritdhari Sikhs at a disadvantage but that this was justified with regard to the legitimate aim of ensuring safety and security within prisons.
In Azmi, a Muslim teaching assistant was dismissed after she refused to remove her veil while teaching. The Employment Tribunal and the Employment Appeal Tribunal dismissed her claims of discrimination on the grounds that a non-Muslim employee who also covered their face would be treated the same.
Other areas to be tested by the courts have included refusals to carry out certain duties, Sunday working and proselytising.
In Ladele, a Christian registrar was disciplined for refusing to carry out civil partnership ceremonies for same sex couples. Her claims were also dismissed on the grounds that an employee who refused to carry out the tasks for other reasons would also have been disciplined and that it was objectively justified for the Council to require her to conduct these ceremonies and likewise, in MacFarlane, a sex counsellor who was dismissed for refusing to counsel same sex couples on the grounds of his Christian beliefs could not succeed in his claim for discrimination.
In Monaghan, the Claimant worked for the YMCA and was told by his manager to stop trying to convert service users to Christianity. His claim for discrimination failed as the ET felt he was dismissed for trying to convert people to his beliefs, not because of his beliefs.
Also, in Chondol, it was not discrimination for an employee to be dismissed for gross misconduct for “improperly foisting” his religion on to service users.
In Power, an employee was safely dismissed were part of the reason for dismissal was him inappropriately distributing posters and CD-Roms at work relating to spiritualism and the ability of mediums to communicate with the dead.
Sunday working was the concern in Williams-Drabble and Estorninho and both Claimants were found to have been discriminated against where their employer tried to require them to work on Sundays, putting them at a disadvantage because of their Christian beliefs. In both cases, the employers were not able to establish that the Sunday working requirements were objectively justified in that they had not considered alternatives.
However, in James, the employer could objectively justify the requirement for all employees to take a turn working on Saturdays even though this put the Claimant, a Seventh Day Adventist, at a particular disadvantage. This was because it was necessary for the business’ trading success to be open on Saturdays and to make an exception to the rota for one employee would have been de-stabilising to the team.
Comment
The case law illustrates that employers do not have to accommodate every facet of religion in the workplace. However, decisions not to accommodate religious requirements need to be taken carefully, with full consideration of the impact and any alternatives available, as the Tribunals will challenge employers to establish objective justification.
Employers faced with requests or complaints should take legal advice before engaging with the employee to ensure that the approach and handling of the issue is sensitive and appropriate.
If the law is changed to further enhance an employee’s right to manifest their religion at work then employers will need to reconsider their policies, particularly dress codes and uniform requirements in light of this. This will also mean more uncertainty for employers and more challenges from employees.
For more employment law advice or to comment on this article, please contact Laura Kearsley, one of our employment law specialists, on 0800 024 1976 or via our online form.