Our German Desk
Recently, the European Court of Human Rights (“ECHR”) ruled on claims brought by four applicants based upon what they saw as discrimination against them in their workplaces on the grounds of religion.
The first applicant, Ms Eweida, had been employed as a member of British Airways’ check-in staff. Until May 2006, Ms Eweida wore a cross at work concealed under her clothing, but then decided to start wearing the cross openly. British Airways had a uniform policy covering the wearing of visible religious symbols, and asked her to either remove the cross or conceal it under her cravat. Ms Eweida refused and was sent home without pay until such time as she chose to comply. In October 2006 she was offered administrative work which would not bring her into contact with customers, but rejected that offer.
British Airways received a spate of negative publicity concerning Ms Eweida’s circumstances. Following consultation with its staff and union representatives, British Airways decided to adopt a new policy with effect from February 2007, under which the display of religious symbols would be permitted where authorised. Ms Eweida returned to work with permission to wear her cross openly, but British Airways refused to compensate her for her some five months off work.
The second applicant, Ms Chaplin, was a nurse on a geriatric ward and had worn a cross visibly around her neck since 1971. She believed that to remove it would be a violation of her faith.
The hospital asked Ms Chaplin to remove her cross as it considered it might cause injury if an elderly patient pulled on it, or might swing into an open wound. When Ms Chaplin insisted that the cross was a religious symbol, it was suggested that she could secure her cross to the lanyard which held her identity badge. As the badge and lanyard were removed when nurses were performing close clinical duties, Ms Chaplin found this offer unacceptable.
The third applicant, Ms Ladele, originally worked as a births, deaths and marriages registrar but, upon the passing of the UK law recognising civil unions, her employer designated her as a civil partnership registrar. Ms Ladele refused to conduct same-sex civil ceremonies as requested, on the grounds of her Christian beliefs, and rejected her employer’s offer of an administrative role instead.
The fourth applicant, Mr McFarlane, was part of a relationship counselling service. His employer dismissed him as it found it had no confidence that Mr McFarlane would comply with its policies and provide counselling to same-sex couples as he had indicated an unwillingness to do so.
All of the applicants had pursued claims in the UK domestic courts without success. In particular, the domestic courts had found that the applicants’ actions, respectively the wearing of visible crosses, and refusing to ‘endorse’ homosexual relationships in the course of their employment, were not mandatory requirements of the Christian religion and, as such, there was no discrimination on religious grounds.
The ECHR interpreted religious belief more widely and found that it could manifest in the form of worship, teaching, practice and observance. The ECHR was satisfied that the wearing of a cross in the case of the first and second applicants, and, in the case of the third and fourth applicants, the refusal to create and/or endorse same-sex relationships was, in the case of those individual applicants, a manifestation of religious belief attracting protection.
However only Ms Eweida’s claim was successful. For each of the applicants, the ECHR undertook a balancing exercise between each applicant’s desire to manifest his or her religious belief and:
- For Ms Eweida: the employer’s wish to project a certain corporate image. The ECHR found that the domestic courts had afforded the employer’s wish too much weight. Moreover, the company later amended the uniform code indicating that the earlier prohibition on visible religious symbols was not of great importance.
- For Ms Chaplin: the health and safety of nurses and patients. The ECHR found that the protection of health and safety on a hospital ward was inherently of greater magnitude. It accepted the employer’s view that there was a risk that a disturbed patient might seize and pull the chain, causing injury to either the patient or Ms Chaplin, and a risk that the cross could come into contact with an open wound.
- For Ms Ladele and Mr McFarlane: the employer’s policy aimed at protecting the human rights of others (i.e. no discrimination based on sexual orientation). The ECHR found that religion could not trump those rights.
In our view
Would the position be different in New Zealand?
In New Zealand, the Human Rights Act 1993 (“HRA”) sets out 13 prohibited grounds of discrimination, which are:
- Sex (which includes pregnancy and childbirth)
- Marital status
- Religious belief
- Ethical belief (which means the lack of a religious belief)
- Colour
- Race
- Ethnic or national origins
- Disability (which includes physical or psychiatric illness, along with the presence in the body of organisms capable of causing illness)
- Age
- Political opinion
- Employment status
- Family status (for example having the care of children, or being related to a particular person)
- Sexual orientation
The HRA provides that where a religious or ethical belief requires its adherents to follow a particular practice, an employer must accommodate the practice so long as any adjustment of the employer’s activities required to accommodate the practice does not unreasonably disrupt the employer’s activities. This will involve a factual inquiry.
Were Ms Eweida in New Zealand, it seems that she would have a good argument under the HRA that her employer could accommodate her without unreasonable disruption (particularly as British Airways instituted a policy under which Ms Eweida was allowed to wear the cross shortly thereafter apparently without any trouble).
But the unsuccessful applicants in the ECHR would likely encounter difficulties under New Zealand law as well. Their employers could argue that the accommodation sought by the applicants was unreasonable – for example Ms Ladele and Mr McFarlene were refusing to perform a core function of their roles. Moreover, in a case like Ms Chaplin’s, the employer also has the duty under the Health and Safety in Employment Act 1992 to ensure the safety of people in the workplace.
Although sometimes there may be competing considerations such as health and safety, employers need to be alert to the broad prohibited grounds of discrimination, particularly when something as simple as an amendment to a policy can avoid liability. Where there are conflicts, for example, between an employee’s religious belief and an employer’s policy on freedom of sexual orientation, employers should consider the possibility of a reasonable accommodation of its business to allow that employee to express his or her religious beliefs. Remember those fundamental duties of good faith!
If you have any questions about the Human Rights Act 1993 and your obligations, please give us a call on (09) 375 8699 to talk through your situation or email us at employmentnews@heskethhenry.co.nz
