European Court of Human Rights Supports the Right to Wear a Cross at Work

by Morgan Lewis

Court provides clarity for UK employers on wearing religious symbols in the workplace, but difficulties in balancing issues of religion and sexuality remain.

On 15 January, the European Court of Human Rights (ECtHR) handed down its decision in the combined judgment of Eweida and Chaplin v. United Kingdom, [2011] ECHR 738, and Ladele and McFarlane v. the United Kingdom, [2011] ECHR 737.[1]

Significantly, the ECtHR ruled that the UK failed to protect Ms Eweida's right to the freedom to manifest her faith in the workplace under Article 9 of the European Convention of Human Rights because her employer did not allow her to wear a cross with her workplace uniform. However, the ECtHR rejected Ms Chaplin's claim, which was similar in its scope, and drew a distinction between the facts of each case. The ECtHR also went on to reject the parallel appeals of Ms Ladele and Mr McFarlane. The decision in all four cases provides some guidance for UK employers on an employee's rights relating to religion and belief.


Ms Eweida, Ms Chaplin, Ms Ladele, and Mr McFarlane each brought claims against their employers contending that they were discriminated against because of their Christian beliefs.

Ms Eweida worked for British Airways at a check-in desk and requested permission to wear a small silver cross with her uniform as an expression of her faith. This contravened British Airways' uniform policy, which did not allow adornments to uniforms except for "mandatory" religious items that could not be concealed, such as Sikh turbans and Jewish yarmulkes. Ms Eweida brought a claim against British Airways alleging indirect discrimination on the grounds of her religion or belief. Ms Eweida's claim ultimately failed before the Court of Appeal, where it was held that the uniform policy did not put any recognisable group of people at a disadvantage (a requirement for indirect discrimination).

In very similar facts, Ms Chaplin, who worked as a nurse for a National Health Service trust, was told to remove her crucifix from around her neck as her employer claimed that it represented a health and safety risk. The Employment Tribunal agreed with the National Health Service trust, and her claim failed.

Ms Ladele worked for Islington Council as a registrar. In 2005, the scope of her duties was extended to performing civil partnership ceremonies. Ms Ladele objected to participating in civil partnerships due to her Christian beliefs. After being disciplined by her employer following complaints from other staff members, she brought claims alleging direct and indirect discrimination and harassment on the grounds of her religion or belief. The Court of Appeal found that Ms Ladele was not discriminated against and held, amongst other things, that the policy requiring all registrars to perform civil partnerships was justified because of the council's overarching policy of promoting equal opportunities.

Mr McFarlane worked for Relate as a relationship counsellor, where he raised concerns about working with same-sex couples, including querying whether he could be excused from providing such services. Following a disciplinary proceeding, Mr McFarlane was dismissed. He brought claims alleging, amongst other things, direct and indirect discrimination and harassment on the grounds of his religion or belief, but the Employment Appeal Tribunal found that Mr McFarlane's treatment was lawful as it was justified and necessary to ensure that Relate's services were equally available to all regardless of their sexual orientation.

The Court's Decision and Implications

Although the nature of the claims was very similar, the ECtHR drew a distinction between the claims of Ms Eweida and Ms Chaplin on health and safety grounds. In Ms Chaplin's case, the ECtHR found that "[T]he reason for asking her to remove her cross, namely the protection of health and safety on a hospital ward, was inherently of a greater magnitude than that which applied in respect of Ms Eweida." In addition, the ECtHR accepted that the hospital managers were "better placed to make decisions about clinical safety than a court, particularly an international court which has heard no direct evidence". In noting that there were no such health and safety concerns in Ms Eweida's case, the ECtHR concluded that her treatment was unlawful. This suggests that, in future cases where issues of health and safety arise in the workplace and are at odds with a claimant's expression of religion or belief, an employer's first responsibility will be to ensure the health and safety of its workers and customers.

The justification for indirect discrimination will continue to turn on the facts of each case. However, it appears that employers will need to accommodate reasonable requests by employees to wear items or symbols that can be associated with their religion or beliefs unless there is a compelling reason not to do so (most obviously where complying with such a request may give rise to genuine health and safety concerns). Employers should therefore consider reviewing their uniform and or dress code policies accordingly.

The judgment in respect of Ms Ladele's and Mr McFarlane's claims is interesting, as the ECtHR balanced the individual claimants' Article 9 rights (freedom of thought, conscience, and religion) and Article 14 rights (nondiscrimination on grounds including religion) against an individual's right not to be treated differently for reasons of sexual orientation. The ECtHR commented that national authorities have "a wide margin of appreciation" when seeking to strike this balance, and, in both cases, the ECtHR upheld the earlier decisions that the employer had acted lawfully.

In circumstances where the issue of competing rights arises, the ECtHR's decision suggests that employers should place more weight on the requirement that staff should not discriminate against others in the discharge of their work duties or in the performance of their role than on whether such duties or performance may be potentially incompatible with their personal religious beliefs.

[1]. View the decision here. View the press release about the decision here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morgan Lewis | Attorney Advertising

Written by:

Morgan Lewis

Morgan Lewis on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.