· 2 min read · Features

The implications for employers of cases of discrimination on grounds of religious beliefs

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In recent months there has been a number of cases involving discrimination on the grounds of religious beliefs. The latest of these concerned a Christian nurse who refused to remove a necklace bearing a crucifix.

Mrs Chaplin worked as a nurse for the Royal Devon and Exeter NHS Trust Hospital. From the commencement of her employment in 1989 she wore a visible crucifix necklace to her work as a personal expression of her faith.

Last year, the Trust asked Chaplin to remove the necklace as the Trust was concerned, in general, about the health and safety of patients grabbing necklaces.

It was suggested by the Trust that Chaplin pin the cross inside her uniform. She refused and claimed that it would "violate her faith" and that it was "clear discrimination against Christians".

As Chaplin failed to comply with the Trust's request, she was initially threatened with a disciplinary sanction and thereafter with formal disciplinary action. It was eventually agreed that Chaplin would move to a permanent, desk-based role.

Earlier this year, in a similar case, British Airways was taken to an employment tribunal (and thereafter to the Court of Appeal) by one of its employees, Ms Eweida, a devout Christian, when it required her to remove a crucifix she wore to work in line with its uniform policy. The Court of Appeal held that British Airways had not discriminated against Eweida.


What were the grounds of Chaplin's claim?

The Employment Equality Religion and Belief Regulations 2003 (the Regulations) provide that it is unlawful to discriminate against anybody in the workplace because of their religion or belief. By forcing her to remove her cross, the company indirectly discriminated against her, Chaplin argued

Under the Regulations, an employer will indirectly discriminate against an employee where it adopts a neutral practice, which, on the face of it, applies equally to everybody but nonetheless adversely affects those of a particular religion or belief and cannot be justified.


The Trust, on the other hand, argued that it was implementing a general policy and it was nothing to do with the religious nature of the jewelry.

The decision

The employment tribunal held that the Trust had not indirectly discriminated against Chaplin. It was found that the Trust had treated its employees from all ethnic minorities equally - for example, Sikhs were ordered to remove their wrist bangles and Muslim doctors were required to wear tighter-fitting hijabs.

Although the written judgement is not available yet, it is understood that in reaching its decision, the employment tribunal followed the Court of Appeal's reasoning in the aforementioned British Airways case.

The tribunal judge held that the Trust had ‘acted in a reasonable manner' by offering a variety of compromises to Chaplin. Furthermore, it held that any damage she suffered was ‘slight'.

Implications for employers

In reaching its decision, the tribunal was particularly influenced by the fact that the wearing of a cross was not a requirement of the Christian faith. 

However, an employer's dress codes may be found to be discriminatory if it prohibits the wearing of an item that is a mandatory requirement of an employee's faith (as opposed to it being a personal preference), for example, it might be discriminatory to require Sikh men to wear a helmet on a construction site as their religious belief makes it a mandatory requirement for men to wear a turban.

Furthermore, in the present situation, Chaplin was the only person that felt disadvantaged by the policy. Tribunals are more likely to find that discrimination has taken place in these circumstances where several employees feel disadvantaged by the policy. However, an employer would still be able to try to argue that it could objectively justify such a policy if there was a real business need for the policy which prevailed over any adverse impact it may have on any specific religious group.

Conclusion

Chaplin has indicated that she will appeal against the decision to the Employment Appeal Tribunal while it is understood that Eweida is in the process of appealing to the Supreme Court. We await the developments with anticipation.

Ashley Brown is an associate in Morgan Lewis's Labour and Employment Practice