Conflicting rights – What is an employer to do?

Employers and employees are well aware that certain characteristics are protected by anti-discrimination laws. These characteristics include preventing an employer treating a person less favourably on the grounds of their sex, race, religious belief, sexual orientation, age, disability, gender reassignment, marriage, civil partnership and pregnancy. Some of these characteristics have been protected for a number of decades, others are more recent. The question arises what is an employer to do when there is a conflict between their own policies and these protected characteristics or indeed where one employee’s protected characteristic conflicts with that of another employee’s.
The Courts have wrestled with this conflict and ultimately, the European Court of Human Rights has handed down a decision on these issues in Eweida and others v UK. In the first of four appeals to be heard together, the ECHR held that Ms Eweida, who claimed her employer, British Airways, had been a breach of her right to practice her religious beliefs by failing to permit her to wear a visible cross at work. BA argued it was contrary to their uniform policy. The ECHR disagreed and confirmed that Ms Eweida had been discriminated against. Compensation was awarded.
In what may appear at first blush an almost identical case and heard at the same time, Ms Chaplin, a nurse, complained that the uniform policy which prevented her from wearing a cross was an act of discrimination. The Court disagreed. It held that the hospital had made the decision that wearing a cross was contrary to the interests of health and safety for both the nurse and the patients and not simply a matter of uniform. The Court held that the hospital was in a much better position to make decisions about clinical safety than a Court and therefore applied a margin of appreciation given to national authorities and confirmed there was no violation of the nurse’s rights.
Clearly, cases involving almost identical factual issues were decided in different ways which can only lead to further confusion for employers in the future.
The Court was also asked to consider competing or conflicting interests between employees. In the case of Mr McFarlane, employed as a marriage counsellor, who was dismissed after saying he would object to giving sex therapy advice to gay couples and a registrar, Ms Ladele, who was disciplined after she refused to conduct same sex civil partnership ceremonies. These objections were on the grounds that such actions were contrary to their Christian religious beliefs. In both cases, the Court held there was no unlawful discrimination by the employer. Of paramount importance was the employer’s intention to implement policies which were non-discriminatory against any of its employees or the people to whom they provided services.
Clearly, there are lessons to be learned but most importantly, there needs to be a dialogue between employers and employees. A Little common sense and diplomacy can often resolve the issue.
If you would like to discuss workplace discrimination issues, need further guidance on implementing appropriate policies or any other employment law issues, please contact James Leo by email: [email protected]