OMG! Don’t cross me: religion and belief in the workplace

Earlier this year, the European Court of Human Rights (ECHR) ruled on various cases relating to the ability of employees to express their religious beliefs within the workplace.  In Eweida and others v UK, the ECHR held that Ms  Eweida had been discriminated against on grounds of religion and belief because her employer had asked her to remove a small cross which she wore.  Article 9 of the European Convention on Human Rights confers a right to freedom of thought, conscience and religion.  The ECHR found that the UK courts (who had previously rejected Ms Eweida’s claims) had placed too much emphasis on her employer’s desire to project a certain corporate image and had not correctly balanced this against Ms Eweida’s right to manifest her religious beliefs.

The three other cases which were heard along with Ms Eweida’s claim were rejected.  For example, in the case of Ms Chaplin, a nurse who had been asked to remove a cross necklace, the ECHR held that the employer had not been guilty of unlawful discrimination because their decision was necessary to protect the health and safety of other nurses and patients.

Given the uncertainty that these decisions has created for employers, the Equality and Human Rights Commission rather helpfully produced some guidance on managing religion and belief in the workplace.  The guidance is available at:  http://www.equalityhumanrights.com/advice-and-guidance/guidance-for-employers/religion-or-belief-new-guidance-february-2013/

In addition to including an explanation of the Eweida judgment, the guidance also offers suggestions as to how employers might handle relevant requests.  Employers should take all requests seriously.  Requests might include employees seeking time off on religious grounds or for variations to uniform policies to allow religious dress/jewellery to be worn.  Employers must consider various factors in deciding whether or not allow a request.  These include: the cost and possible disruption to the business; the health and safety implications; the disadvantage to the employee if the request is refused; the impact of any change on customers; and whether workplace policies to ensure uniformity are justifiable.

Employers must be cautious and deal with all requests in relation to religious beliefs consistently.  If an employer prevents an employee from manifesting their religious belief, they must have objective justification for doing so (going beyond a mere protection of their corporate image).

Jack Boyle
Solicitor – Employment Law

Who is the fat-ist in your business?

The Employment Appeal Tribunal (EAT) recently gave some further guidance as to how obesity should be treated for the purposes of disability discrimination.  In Walker v Sita Information Networking Computing Limited, the EAT held that an employment tribunal had erred in finding that a 21-stone employee was not disabled for the purposes of discrimination legislation.

What guidance was given by the EAT?

When considering the issue of whether obesity can amount to a qualifying disability, the first question which should be asked is whether or not the individual has an impairment.  The second question which should be asked is whether or not the condition is a physical or mental impairment.  The EAT stated that the question of “cause” of the disability should only be relevant when a tribunal considers that a disability has no “recognised cause”.  Importantly, despite finding that this employee suffered from a qualifying disability, the EAT refused to find that obesity is a qualifying disability in its own right.

What does this mean for employees?

If, as an employee, your ability to carry out your duties and responsibilities is affected as a result of your weight, then your employer may be required to make reasonable adjustments to your job or work place to accommodate your condition.  Such adjustments could include providing you with an auxiliary aid.

Additionally, if your condition is so serious that it amounts to a disability, you will also be protected from being subject to any unwanted conduct related to your weight which has the purpose or effect of violating your dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for you.

What does this mean for employers?

If an employee’s weight is so significant that it has an effect on that employee’s ability to do their job, you should consider whether it is possible to make reasonable adjustments to that role.  Employers should remember that it is lawful for them to refuse to make such adjustments and an employer is entitled to take into account such factors as the practicability of the step, the extent of the employer’s financial or other resources and the extent of any disruption caused when reaching this decision to refuse to make adjustments.

An employer should also ensure that, if it becomes aware of any unwanted conduct which is related to an employee’s weight, such conduct is dealt with by way of the disciplinary procedures and any employees who are involved in such behaviour should be dealt with accordingly on the grounds of misconduct.

Simon Allison
Partner – Employment Law