So on Tuesday we will get an important ruling from the European Court of Human Rights on four UK religious discrimination cases. Actually there are two cases and four claimants. Eweida and Chaplin are the first case, Ladele and McFarlane are the second. I have no idea what the result will be and make no predictions – but I thought it might be useful to summarise the facts in each case because its just possible that what you read in the press will not be entirely accurate!
I’ve written at some length about the facts in Eweida here. But to summarise, Ms Eweida is a practising Coptic Christian who began working as part of the British Airways Check-in staff in 1999. The post requires the wearing of a uniform and until 2004 the uniform included, for women, a high-necked blouse. In 2004 a new uniform was introduced which included an open-necked blouse wth a Cravat which could be tied loosely around the neck or tucked in. The uniform policy stated:
“Any accessory or clothing item that the employee is required to have for mandatory religious reasons should at all times be covered up by the uniform. If however this is impossible to do given the nature of the item and the way it is to be worn, then approval is required through local management as to the suitability of the design to ensure compliance with the uniform standards, unless such approval is already contained in the uniform guidelines. … NB No other items are acceptable to be worn with the uniform. You will be required to remove any item of jewellery that does not conform to the above regulations.”
Ms Eweida wore a small silver cross around her neck which until May 2006 she kept hidden under the uniform in accordance with the policy. On 20 May she wore the cross openly but eventually agreed to cover it up after discussion with her manager. On 7 August 2006 she again came into work with the cross visible but then reluctantly agreed to comply with the uniform policy. On 20 September 2006 she refused to cover up her cross and was sent home without pay. In October she rejected an offer to work in administrative role without customer contact which would have allowed her to keep her cross on display.
From 1 February 2007 British Airways adopted a new policy allowing the display of religious symbols over the uniform. Ms Eweida returned to work from 3rd February 2007.
Ms Chaplin was employed as a nurse and was employed by the Royal Devon and Exeter NHS Foundation Trust from April 1989 to July 2010. At the relevant time she worked on a geriatric ward. The Hospital’s uniform code said this:
“5.3.6 To minimise the risk of cross infection will be [sic] keep jewellery to a minimum (see 5.1.11). That is:
- One plain smooth ring which will not hinder hand hygiene,
- One pair of plain discreet earrings.
- No necklaces will be worn to reduce the risk of injury when handling patients.
- Facial piercing if present should be removed or covered.”
It also stated:
“Any member of staff who wishes to wear particular types of clothes or jewellery for religious or cultural reasons must raise this with their line manager who will not unreasonably withhold approval”.
In June 2007, new uniforms were introduced which included a V-necked tunic. Ms Chaplin wore a small crucifix on a chain around her neck and in June 2009 she was asked to remove it. She objected to doing so and discussions ensued about a potential solution. Ms Chaplin rejected a suggestion that she could wear a turtle neck T-shirt under her uniform so that the necklace would be covered up. She felt that displaying the cross to others was an essential part of her religious faith. She also refused to wear the crucifix and chain secured firmly to her identity badge rather than around her neck.
In November 2009 she was moved to a non-nursing temporary position which lasted until July 2010 when she was (apparently) made redundant. Her Tribunal claim was decided before July 2010 however and so no issues in relation to the ending of her employment arise.
Ms Ladele is a Christian who believes that civil partnerships are contrary to God’s law.She worked for the London Borough of Islington from 1992 until 2009. In 2002 she became a registrar of births, marriages and deaths (until December 2007 she was a statutory post holder rather than an employee). According to the Council’s ‘Dignity for All’ policy:
“Islington is proud of its diversity and the council will challenge discrimination in all its forms. ‘Dignity for all’ should be the experience of Islington staff, residents and service users, regardless of the age, gender, disability, faith, race, sexuality, nationality, income or health status. …
The council will promote community cohesion and equality for all groups but will especially target discrimination based on age, disability, gender, race, religion and sexuality. …
…It is the council’s policy that everyone should be treated fairly and without discrimination. Islington aims to ensure that:
- Staff experience fairness and equity of treatment in the workplace
- Customers receive fair and equal access to council services
- Staff and customers are treated with dignity and respect
The council will actively remove discriminatory barriers that can prevent people from obtaining the employment opportunities and services to which they are entitled. The council will not tolerate processes, attitudes and behaviour that amount to discrimination, including harassment, victimisation and bullying through prejudice, ignorance, thoughtlessness and stereotyping. …
All employees are expected to promote these values at all times and to work within the policy. Employees found to be in breach of this policy may face disciplinary action.”
The Civil Partnerships Act 2004 came into force on 5 December 2005. Ms Ladele had a deeply held religious objection to conducting civil partnerships. However in December 2005 Islington (though it was not required to do so) designated all of its Registrars of Births Marriages and Deaths as Civil Partnership Registrars. Unlike some local authorities, they did not allow any of their Registrars to ‘opt-out’.
Initially, Ms Ladele was allowed to make informal ‘swapping’ arrangements with colleagues in order to avoid carrying out civil partnerships. In March 2006, however, two gay Registrars complained about her refusal. Tensions grew in the Department. In May 2007 disciplinary proceedings were commenced against Ms Ladele on the basis that she was in breach of the Dignity for All policy. A disciplinary hearing took place on 16 August 2007. The outcome was that Ms Ladele could be excused from conducting civil partnership ceremonies but would be required to undertake straightforward signings of the register and other administrative tasks associated with civil partnerships. She refused and brought discrimination proceedings in November 2007. At the time of the Tribunal decision she was still employed by Islington, but she resigned in September 2009.
Mr McFarlane is a Christian who believes that homosexual activity is sinful and that he should do nothing to endorse it. He worked for Relate Avon Ltd as a counsellor from May 2003 until March 2008. He initially had concerns about counselling same-sex couples but after a discussion with his manager agreed that counselling did not involve any endorsement of the relationship.
In 2007 he began Relate’s Post-Graduate Diploma in Psycho-Sexual Therapy (PST) which is concerned with improving a couple’s sexual activity with a view to improving the overall relationship. However by late autumn 2007 there was a perception that he was unwilling to work on sexual issues with same-sex couples. Mr McFarlane was then asked to provide written confirmation that he would be willing to counsel same-sex couples in both relationship counselling and PST. He replied that he was happy to counsel same-sex couples but that his views were still evolving with respect to PST.
That was taken as a refusal to comply and disciplinary proceedings began. Mr McFarlane then stated that he would do PST work with same-sex couples if asked and that if any problems arose he would speak to his supervisor. In response to this the disciplinary proceedings were dropped. However concerns were again raised after a conversation between Mr McFarlane and his supervisor. It was felt that either he was confused about same-sex PST or was being dishonest about his views. When challenged he simply said that he had nothing to add to his previous comments. He was dismissed for gross misconduct on 18 March 2008 on the basis that he had said that he would undertake sexual counselling of same sex couples when in fact he had no intention of doing so. It was subsequently conceded that this was a wrongful dismissal in that notice should have been given.