24th February 2015

Discrimination at Work – Have employees have won the ‘right to wear a cross’?

You may have heard of the prominent cases in the news recently on the subject of religious discrimination at work. What rights do employees have at work to express their faith, and what must employers do to ensure that their employees are not discriminated against on grounds of their religion or belief?

The decision in January was made by the European Court of Human Rights (ECHR). Some sections of the popular press have reported the decision as establishing a clear-cut ‘right to wear a cross’ at work. The truth is actually a bit more complicated.

Briefly, there were four cases involving alleged religious discrimination, and in three of them, the ECHR decided that no unlawful discrimination had taken place. The one case in which there was discrimination was the most publicised case of all, involving a clerk who worked for British Airways, who had not been allowed to wear a necklace with a crucifix on display above her uniform. The important point has always been that religious discrimination is a matter of balancing different rights. In this case, the ECHR decided that the balance had not been struck properly, and the employee should have been allowed to wear her necklace/crucifix.

Crucially, in one of the less other less well-publicised cases, it was decided that a clinical nurse was justifiably barred from wearing a similar crucifix in the course of her job for health and safety reasons. The ECHR felt that the NHS employer was in the best position to make that judgement, rather than the Court. The Court would not normally interfere with a health and safety-based discretion, unless it had been abused in a completely ridiculous manner. And therefore, there had been no unjustified religious discrimination.

Similarly, in the other two religious discrimination cases, which involved other issues than the wearing of crucifixes, the ECHR decided that whatever discrimination there was, had been effectively justified for other reasons, such as the need to provide a non-discriminatory service for all of the wider community.

So, in summary, whether or not any kind of possibly discriminatory treatment can be justified depends upon the particular facts of the case. Whether you are an employee or employer, taking proper professional advice on your circumstances is the only way to be clear that you have not been treated unlawfully, or have perhaps acted unlawfully without knowing it. An advisor who has experience of dealing with discrimination claims will be able to judge whether a ‘faith-based’ right at work is likely to succeed or not.

Discrimination is of course unlawful on other grounds as well, such as race, sex, age, disability, and sexual orientation, and when it does occur it may give rise to a valid legal claim.

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