Four religious discrimination cases that have been taken to the European Court of Human Rights (ECHR) could have wide-ranging implications for employers if they are successful, an employment lawyer has claimed.
The ECHR has begun hearing the cases of Nadia Eweida, Shirley Chaplin, Lillian Ladele and Gary McFarlane today, the first two of which centre on wearing crucifixes at work, and the other two on refusing to carry out civil partnerships and counselling for same-sex couples.
Further details on the cases being heard by the ECHR
Simon Rice-Birchall, partner at law firm Eversheds, argues that, if the ECHR upholds complaints in the two cases on wearing religious symbols, then it could result in a change in the law, or an adjustment in the way it is interpreted.
“If the Court upholds the complaints made by Mrs Eweida and Mrs Chaplin this could, in effect, introduce a duty on employers, where reasonable, to accommodate workers’ desires to manifest their religious beliefs.
“Similar duties exist in the US and Canada, but only where making an adjustment would not cause undue hardship to the employer. However, although this would shift the legal focus, it will still be the case that employers only have to make adjustments where it is reasonable to do so.”
Rice-Birchall added that the ECHR will also have to decide where the line should be drawn between an employee’s right to act on their religious convictions and an employer’s discretion as to how it operates.
Earlier this year, David Cameron indicated that he would “change the law” to allow people to wear religious symbols at work when he was asked about the Eweida case during Prime Minister’s Questions.
John Read, employment law editor at XpertHR, added that the Court’s decision in McFarlane’s case, where the claimant was dismissed after declining to provide counselling to same-sex couples on the grounds of his religious beliefs, and Ladele’s, in which the registrar was disciplined for refusing to conduct civil partnership ceremonies between same-sex couples, will also be important.
“The Ladele and McFarlane cases, which deal with the issue of conflicting rights, should hopefully see the Court provide some guidance on the issue of justification – achieving a legitimate aim by proportionate means,” Read explained.
“It will be interesting to see what the Court has to say on this issue with regard to McFarlane, where the employer was a private organisation and did not – unlike the public-sector employer in the Ladele case- have a statutory duty to positively advance equality of opportunity. The Court’s findings on whether or not the employees’ refusal to carry out their employment duties constituted a ‘manifestation’ of their beliefs under art.9 of the Convention will also be welcome.”
While the cases are now being heard, it will be some time before the outcome of the claims are decided.
Rice-Birchall added that it could be hard for the claimants to argue their cases successfully.
“Past cases based on human rights law suggest the claimants will not find it easy to persuade the Court that there was an unjustified infringement of their rights when the option of resigning was available to them if they felt strongly that they must act on their beliefs rather than in accordance with their employer’s requirements,” he said.