European guidance on objective justification: religion The European Court of Justice held in Eweida and others v UK [2013] All

ER (D) 69 (Jan) that while tribunals operate within a wide margin of appreciation when attempting to strike a balance between the fundamental rights of employees to manifest their religious beliefs and the competing rights of employers, too much weight had been accorded to the legitimate aims of employers.

Background The Court heard a consolidated appeal brought by four appellants against the refusal of national courts (either Employment Tribunals or the Court of Appeal) to protect the article 9 rights of each Appellant in the workplace. Eweida was prevented from wearing a Christian cross, contrary to British Airways uniform policy, while working as cabin crew. Chaplin was also prevented from wearing a Christian cross while working as a nurse on the grounds of health and safety. Ladele was dismissed for refusing to register same-sex partnerships as a Registrar for a local authority due to her Christian belief that marriage was a union between a man and woman. Finally, McFarlane was dismissed by Relate for refusing to counsel same-sex couples based on his belief that homosexuality was sinful and that he could do nothing to endorse it. Each Appellant had complained of either direct or indirect discrimination. The issue before the Court was whether or not, in refusing to find indirect discrimination had taken place, the UK courts failed to protect the Appellants rights under article 9 (freedom of religion) and/or article 14 (prohibition on discrimination). In each case, the employer had succeeded in establishing the objective justification defence, defeating any claim for indirect discrimination.

Decision
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In dismissing the appeals of Chaplin, Ladele and McFarlane, the Court held that the UK national authorities acted within a wide margin of appreciation in balancing the legitimate aims of employers against the article 9 rights of employees. Each of these Appellants fought a strong objective justification. However, in Eweida, the Court held that domestic courts attached too much weight to the legitimate aim of projecting a certain corporate image over the fundamental rights of employees who wished to manifest their religious belief. The Court held that the margin of appreciation available to national courts where fundamental rights were concerned was narrower.

Analysis Eweida was alone successful as the Court found that her fundamental rights to religion expression had not been adequately protected by English courts according too much weight to the business aims of employers. However, this decision is notable for three reasons. Firstly, it is clearly fact specific. The Court drew attention to the fact that unlike in Chaplin, where the employers legitimate aim was of an inherently greater magnitude, namely the health and safety of patients, British Airways sought only to project a certain corporate imagine by preventing Eweida wearing the cross. Even so, it is not necessarily the case that such an aim cannot outweigh an employees article 9 rights, for the reasons below. Secondly, the UK courts had not carried out the balancing exercise with due regard to the facts in this case. Eweidas cross was discreet and cannot have detracted from her professional appearance. Furthermore, there was no evidence that other authorised religious clothing, such as turbans or hijab, had negatively impacted on BAs brand. Furthermore, BA was able to easily amend its uniform code to allow Eweida to wear the cross. As a result, those Tribunals should carefully and proportionately balance the competing rights in any indirect discrimination claim, which had not been done in this case.

Finally, the dismissal of the other appeals shows that the European Court approved English jurisprudence in general on this issue. In particular, the contentious cases of Ladele and McFarlane, where employees refuse to carry out employers instructions or contractual duties, respectively, on religious grounds. The Court emphasised that any difference of treatment based on sexual orientation required particularly serious reasons by way of justificationmeaning that it was unlikely an employer will have acted unlawfully in refusing to accommodate religious beliefs that discriminated against homosexuality. National courts enjoyed a wide margin of appreciation in deciding how best to balance the fundamental rights of employees under article 9 and the fundamental rights of others. Notably, in Ladele and McFarlane, the European Court referred to the fact that it is relevant to look at whether an employee had waived their rights to express their religion by entering into a contract. While it was not determinative, it was relevant that McFarlane had agreed to his employers equal opportunities policy to provide counselling without filtering couples based on sexual orientation. While this was not the case in Ladele, the Court specifically noted it was a relevant consideration.

Conclusions Those advising clients in claims for indirect discrimination should bear in mind that Tribunals will firstly want to see evidence of the employers legitimate aim and whether the means to achieve it are proportionate. If they are, then any indirect discrimination is likely to be justified. In considering proportionality, the Tribunal must consider the effect of allowing or limiting the provision, criterion or practice (PCP) complained of. The more adverse the effect on the employee, the more important the legitimate aim should be to justify it. As for claims based on religion, it clear that where an employer can show that its PCP is required to protect the rights of others, for example their health, safety or access to services

in a non-discriminatory manner, Tribunals are unlikely to find that such a PCP is discriminatory where an employee is adversely affected because of their religious beliefs.

IQBAL MOHAMMED