UK laws have recently been criticised by the European Courts for not striking the correct balance between the protections of an employee's right to manifest her religion in the workplace, against interests of others.
Mrs E, a practising Christian, started to wear a cross visibly around her neck as a sign of commitment to her faith. Her employer, British Airways, which imposed strict uniform guidelines, refused to allow her to wear the cross openly insisting that at all times it should be covered up and hidden under a cravat. The airline accepted that religious clothing which could not be concealed such as turbans, hijabs and headscarves may be permitted providing that the clothing was a mandatory religious requirement and in keeping with airline colours and corporate branding. Mrs E refused to conceal the cross and was not allowed to return to work until she chose to comply with the airline's request. The airline did, however, offer her a re-deployed role without customer contact which would not have required her to wear a uniform.
Mrs E refused to accept the alternative role and chose to remain at home (without pay) until such time as the airline was prepared to alter its uniform policy. She remained at home for five months. The airline did eventually alter its policy but not in time to prevent Mrs E from bringing a claim.
Interestingly, the Employment Tribunal agreed with the airline's position; it held that the visible wearing of a cross was not a mandatory requirement of the Christian faith but simply her own personal choice. Mrs E had failed to establish that the uniform policy had put Christians generally at a disadvantage (as was necessary to establish a claim of indirect race discrimination on the grounds of religion). This decision was supported on her appeal to the Employment Appeal Tribunal.
On Appeal it was concluded that the concept of indirect discrimination referred to the potential discrimination of a "defined group" and that Mrs E had failed to establish any evidence of a group disadvantage; in fact the only person affected was her.
Still not happy with the decision, Mrs E pursued the matter to the Court of Appeal which dismissed her appeal and endorsed the approach of the Employment Appeal Tribunal. It decided that for indirect discrimination to be established an employer must make general statements which have a disparate adverse impact on a group of persons. The Court placed emphasis on the fact that noone had ever complained about the uniform policy, with the exception of Mrs E, and that once the issue was addressed she was offered re-deployment to another role (with no loss of pay) that would accommodate her religious beliefs.
Still unhappy with the decision, Mrs E was left with no alternative but to bring her claim before the European Court of Human Rights after the UK's Supreme Court refused her further appeal. She alleged that the laws adopted by the UK Tribunals and Courts breached Article 9 - the right to freedom of thought, conscience and religion.
Counsel acting on behalf of the UK Government argued that the airline's actions had been proportionate to a legitimate aim; the wearing of a uniform played an important role in maintaining a professional image and strengthening recognition of a corporate brand and, as such, had a contractual right to insist employees adhered to the uniform code. Further, the fact Mrs E did not receive a salary for five months was through her own fault; she was offered an alternative post on identical pay but instead chose to stay at home.
Mrs E argued that wearing a cross was a recognised form of practising Christianity and that the airline's actions, together with the decisions of the domestic Tribunals / Courts interfered with her right to the freedom of religion. In her words she found the whole situation "deeply humiliating and offensive".
The European Court agreed; the intention to wear the cross is a clear act of devotion and worship which forms an integral part of the practice of religion and as such attracted the protection of Article 9. The airline's refusal to allow Mrs E to remain in her post whilst visibly wearing a cross did amount to an interference with her right to manifest her religion. The Court commented that Article 9 is a fundamental right; a healthy democratic society needs to tolerate and sustain pluralism and diversity despite an employer's wish to project a certain corporate image.
Whilst the Islands do not officially form part of Europe, any decisions to come out of the European Courts must be taken seriously; these decisions have real significance in the UK where such decisions are highly persuasive in the offshore Courts.
Presently, Guernsey laws only make provision for matters concerning sex discrimination; Jersey as yet has no discrimination laws but will shortly be making provision for race discrimination; the law is currently in draft form and due to be implemented shortly. It is arguable that the Islands' laws fall short of widely recognised international standards and therefore a greater emphasis is being placed on discrimination issues to ensure compliance with international conventions. I therefore suspect that we will, no doubt, be seeing further changes to our laws in the not too distant future and legal practitioners may see fit to rely on other jurisdictional case law in order to set a precedent offshore.
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