Issuing a landmark decision on the four joined cases, with one employee successful, the court's ruling illustrates the importance of employers not only having a legitimate aim behind any policy, but being able to show it is a proportionate means of achieving that aim.
In the absence of specific legal provisions regulating the wearing of religious clothing and symbols in the workplace, other than the non-discrimination provisions of the Equality Act 2010, such policies have a key role to play.
The two cases relating to the wearing of symbols of faith were raised by Nadia Eweida (pictured), a BA check-in attendant who took to wearing a small silver cross on a necklace over her clothing at work and Shirley Chaplin, a nurse in a geriatric ward. The actions of both were contrary to their employers' uniform policies, which banned jewellery being worn in this way. In brief, the UK courts held that Christians were not disadvantaged by the uniform policies, as there was no requirement of Christianity that they wear such jewellery.
However, the ECHR held that an employee does not need to show that their actions were a mandatory requirement of the religion, provided they are "intimately linked" to it. Since applying this principle is unlikely to be straightforward for employers, it could readily lead to further disputes and an increased need to be able to justify existing practices. It would be no surprise to now see fresh challenges, for example, in relation to Sunday working requirements.
British Airways' desire to project a certain corporate image was accepted as a legitimate aim. But the court ruled by a majority that the domestic courts had not struck a fair balance between Ms Eweida's desire to manifest her religious beliefs by displaying it to others and the employer's aim in projecting its brand. Perhaps crucially, BA had already decided itself to change its policy to allow visible display of religious symbols, before the outcome of the case. In her case, there was felt to be no real encroachment on the interests of others in what she wanted to do.
By contrast, in the case of Chaplin, the uniform policy had been implemented to protect the health and safety of nurses and patients. Rejecting her claim, the court held that this was a valid reason that outweighed her right to manifest her belief to others.
The remaining two cases were not upheld, as these centred on refusal by a registrar (Lillian Ladele) and by a relationship counsellor (Gary McFarlane) to provide services to same-sex couples as being contrary to their religious beliefs. According to the court, the most important factor was that the employers' actions were taken with a view to providing a service without discrimination. This, as legitimate aims go, is about as good as it gets. An employee will face an uphill struggle to argue that action taken by their employer in pursuit of that legitimate aim is disproportionate, as long as any reasonable alternatives have been considered.
However, there may yet be a further twist in the tale, as the unsuccessful parties are reportedly considering asking the Grand Chamber of the Court to review their cases.
In the meantime, employers looking to limit the impact of the judgments should review why they have particular policies in place, reassess what aims they serve and consider whether current practices can be justified. This will provide the solid foundation for the case-by-case approach that will be necessary in future, in view of the many and varied ways in which employees may choose to demonstrate their religious beliefs.
Alan Delaney is an associate in the employment team at legal firm, Maclay Murray & Spens
