The European Court of Human Rights (ECHR) was asked to rule in four UK cases in which Christian employees claimed to have suffered discrimination at work on account of their religious beliefs. Two of the cases concerned women who were prevented from wearing a crucifix at work and two involved employees who were expected to perform work that was inconsistent with their religious beliefs.
Article 9 of the European Convention on Human Rights protects an individual’s right to freedom of thought, conscience and religion. This includes a right to manifest one’s beliefs, subject only to such limitations that are ‘in accordance with law’ and are ‘necessary in a democratic society’.
The judges ruled in favour of Nadia Eweida, the British Airways employee who lost her case at the Court of Appeal that she had been the victim of religious discrimination after she was suspended for refusing to conceal her cross when asked to do so as she regarded it as an important visible expression of her faith.
Ms Eweida was reinstated after BA changed its uniform policy to allow staff to display a symbol of their faith. However, she was of the view that the airline had been guilty of having different rules for different minority groups, and pursued her case through the courts.
The ECHR ruled that the UK courts had erred in attaching too much importantance to BA’s desire to present a particular image. There was no evidence that the wearing of religious clothing, such as turbans, by adherents of other faiths had negatively affected BA’s brand. In this particular case, Ms Eweida’s rights under Article 9 had been breached.
The ECHR rejected the claim of Shirley Chaplin, however. Mrs Chaplin, a former nurse, had been asked not to wear her crucifix necklace by her employer, the Royal Devon and Exeter Foundation NHS Trust, for health and safety reasons. When she refused, she was moved to a desk job that did not involve working with patients. The ECHR held that although her right to manifest her religion had to be taken into consideration, it was outweighed by the need to ensure health and safety in a hospital ward. There was therefore no breach of her rights under Article 9.
Lillian Ladele, a former registrar who was disciplined by Islington Borough Council after she refused to carry out civil partnership ceremonies lost her action as did Gary McFarlane, a counsellor for Relate who was dismissed after he expressed concerns about the possibility of having to carry out relationship work involving same-sex sexual issues. In reaching its decision, the ECHR concluded that national authorities are allowed ‘a wide margin of appreciation’ exactly how they achieve a balance between competing rights under the Convention. The scope of this margin will vary according to the circumstances, the subject-matter and the background and, in these cases, it was not exceeded.
In a further case on this topic, a Pentecostal Christian has failed to persuade the Employment Appeal Tribunal (EAT) that the Employment Tribunal (ET) erred in dismissing his claim that he had suffered direct and indirect discrimination on the grounds of his religious beliefs (Trayhorn v The Secretary of State for Justice).
Barry Trayhorn worked at HM Prison Littlehey as a gardener. The prison houses approximately 1,200 inmates including sex offenders and young offenders. Mr Trayhorn is an ordained Pentecostal minister and volunteered to help at services in the prison chapel. Following a complaint from a prisoner that he had said that same-sex marriage was wrong and 'needed stopping', he was told not to preach at services in future but was permitted to continue to lead the singing.
At a service a few weeks later, however, Mr Trayhorn spoke out forcefully on damnation and homosexuality when commenting on a passage from the Bible (1 Corinthians 6:9-11). There were further complaints about his preaching from prisoners, one objecting to the way in which he had goaded the congregation, telling them to complain about him if they didn't like what he was saying. As a result, Mr Trayhorn was told to stop volunteering at chapel services. After being notified that he would be required to attend a disciplinary hearing, he went on sick leave and was signed off work for three months. He resigned before the disciplinary process had been completed, the outcome of which was to issue him with a final written warning.
The ET rejected Mr Trayhorn's claims of unfair constructive dismissal and direct and indirect discrimination on the grounds of religion or belief. Firstly, his employment was terminated by his resignation, not because he was constructively dismissed. As regards his discrimination claims, the reason he was stopped from volunteering and made the subject of disciplinary proceedings was not his religious beliefs but because his sermon went far beyond mere quotation of scripture and lacked context and sensitivity of approach. The ET also found that Mr Trayhorn's claims of indirect discrimination were without foundation. He had not produced evidence to support his contention that the prison's Conduct and Disciplinary Policy and its Equality of Treatment for Employees Policy each amounted to a provision, criterion or practice (PCP) that put employees who were of the Christian faith and/or of the Pentecostal denomination at a particular disadvantage, either singly or as a group. His argument was that they were more likely to quote from or discuss passages from the Bible that those attending chapel services might find offensive or to make comments based on their beliefs that could be deemed to be a breach of the equality policy, but the ET observed that members of other religions and no religions hold firm views on homosexuality. Nor was there evidence to support his claim that there was an 'unwritten practice that issues involving discussion of religion, moral condemnation of homosexual practice or any expression of Christian sexual ethics could not be mentioned or that views thereon could not be expressed in the workplace'.
Mr Trayhorn took his case to the EAT and lost. In the EAT's view, the ET had applied the correct tests for direct and indirect discrimination. His employer did not object because he had quoted from the Bible – a manifestation of his belief – but because of the way in which he had addressed the congregation. Nor did the EAT support Mr Trayhorn's argument that the ET had erred in relying on 'group disadvantage' (Section 19(2)(b) of the Equality Act 2010) as a necessary condition for him to establish indirect discrimination or that doing so was incompatible with his rights under Article 9 of the European Convention on Human Rights, which protects freedom of thought, conscience and religion. Although the ET had referred to group disadvantage, it had not reached its decision on that basis. On the facts, it had not been satisfied that the two PCPs put Mr Trayhorn at a disadvantage because of his religious beliefs or that other Christians, whether singly or as a group, were disadvantaged.
Lastly, the ET had found no evidence that the prison's discipline and equality policies had disproportionately restrained Mr Trayhorn's manifestation of his religious beliefs. In the circumstances, his employer had established that the application of the policies was a proportionate means of achieving the legitimate aim of protecting order and security within the prison.