EU: Employers may need to accommodate an individual's religious belief, even if it is not held by others

The European Court of Human Rights has this morning given its judgment in the widely-reported Christian belief cases: Eweida and Chaplin (who were prevented from wearing a cross at work) and Ladele and McFarlane (who refused to carry out duties providing services to same-sex couples). 

Only Mrs Eweida won her claim, with the ECHR ruling that it was not proportionate to prevent her wearing a cross in order to maintain a corporate image, particularly as no-one else's interests were affected, there was no persuasive evidence that there would be a negative impact on brand, and the rule was subsequently changed anyway.  In contrast Mrs Chaplin lost because health and safety concerns trumped her rights. 

Mrs Ladele and Mr McFarlane also lost, with the ECHR ruling that national states have a wide degree of freedom in how they strike the balance between competing convention rights.  In deciding whether the employers' actions were proportionate, it was crucial that the employers' policy was aimed at protecting the convention rights of others. 

The judgment determines some important issues:

• The ECHR departed from its previous stance in work-related cases (that restrictions on manifestation of religious belief did not engage human rights because of the employee's option to leave their job).  Following this judgment, the possibility of an employee changing job is just one factor to consider when deciding whether a restriction is proportionate.  Employees seeking to establish a breach of human rights in being required to work on religious days, or conform with dress codes, will no longer fall at the first hurdle.
• The judgment confirms that "manifestation" of religious beliefs will cover conduct which has a sufficiently close and direct connection to the religious belief, but it does not have to be a requirement of the faith.  It will include both bearing witness to one's faith through the wearing of a religious symbol, and conscientious objections to carrying out certain duties directly motivated by religious faith.
• In finding for Mrs Eweida, the ECHR implicitly disagreed with UK caselaw requiring employees to show a "group disadvantage" in order to claim  indirect discrimination.  At least in relation to religious discrimination, it should be enough that there is disadvantage to a single individual, whether or not there are others similarly disadvantaged.

The last two points are important particularly for religions such as Christianity, which are not prescriptive and which allow for many different ways of manifesting commitment to the religion.  Employers will need to bear this expanded protection in mind when considering policies that impact on the manifestation of religious belief.  The key question is whether a restriction is proportionate and it will be relevant to this whether others are similar disadvantaged, whether an accommodation is possible and whether it would impact on others' rights.  It seems that, for the time being, employers providing a service to the public can require employees not to manifest beliefs in a way that involves discriminating against gay people.

The judgment is not yet final and a request can be made to have the case considered by the Grand Chamber.  In a minority opinion two judges suggested that a distinction should be made between a belief that religious rites (concerning food, attendance at worship etc) should be observed and a conscientious objection to certain conduct on the grounds of faith.  They considered that the latter should receive greater protection and, where the duties concerned are imposed after the employment has started, be accommodated if possible.  In their view, Mrs Ladele should have won her case.