11 February 2013

Employers do not necessarily have to take employees' religious faith into consideration

Four cases have been presented to the European Court of Human Rights concerning employees' acts based on religious faith. Two employees were dismissed as they discriminated against homosexual customers and citizens, while two other employees were asked not to visibly wear cross necklaces.

The four cases

Four English citizens commenced legal proceedings before the European Court of Human Rights claiming that they had been discriminated against due to religion, and that their employers had violated article 9 of the European Convention on Human Rights concerning freedom of religion.

The airline company's dress code

The first case concerned an employee working at the check-in counter of an airline company. The company had introduced a dress code according to which all jewels etc. were to be worn under the uniform. However, the company had recognised that certain symbols, inter alia turbans and headscarves, which were impossible to wear under the uniform, could be worn visibly. The employee wore a cross necklace, which she refused to hide under the uniform stating that it was a part of her religion to wear the cross visibly. She was offered relocation to a position with no customer contact, but she refused to take on the position and was then on leave with pay for six months until the company changed its dress code with the result that also cross necklaces could be worn visibly.

The hospital's health and safety instructions

The second case concerned a nurse who was also refused to visibly wear a cross, but the hospital's reasons were based on considerations in terms of health and safety. The hospital suggested that she attach the cross to her name tag, but as she had to take the name tag off during operations, she refused. As in the first case, the nurse also claimed that it was part of her religion to visibly wear the cross.

Registrar and couple therapist rejected homosexuals

In the two last cases, a registrar and a couple therapist - both Christians - were dismissed. The registrar was dismissed as she refused to marry homosexuals due to her faith. The couple therapist refused to counsel homosexual couples on sex referring also to his Christian faith.

The decision of the European Court of Human Rights

The Court found that it was undoubtedly a part of the Christian faith to wear religious symbols. The Court also found that it was undoubtedly legitimate for an employer to wish to protect its brand and image. The Court found, however, that the English courts had attached too much importance to the legitimate purpose in relation to the company brand in the case of the airline company. The Court attached importance to the fact that it had undoubtedly been permitted to wear other religious symbols such as turban and headscarves without this having had a negative effect on the airline company's brand and image. Further, the Court found that the airline company could have changed the dress code subsequently with the result that religious symbols, including jewels, were permitted. This implied that the previous prohibition had not had any decisive effect. The Court therefore found that the employee had been discriminated against in terms of freedom of religion.

The Court found, however, that the nurse's wish to wear the religious symbol had to give way for the employer's considerations in terms of health and safety. In this case, the Court also attached importance as to how other employees had been treated and, in particular, that two Sikh nurses had also been ordered not to wear Kirpan (ceremonial sword or dagger worn by baptised Sikhs) and Kara (special religious Sikh bracelet).

In the two last cases concerning dismissal, the Court also found that the religious faith of the registrar and the couple therapist had to give way for the right not to be discriminated against due to sexual orientation. The Court found that the employer had undoubtedly pursued a legitimate purpose, and that the assessment as to the balance between the rights of the convention had been left to the national authorities and courts. The Court further dismissed that the fact that a person decides to accept employment knowing that the employment will have impact on his/her freedom to manifest his/her religious faith must also be included in the assessment as to whether the employer has violated article 9 concerning the employee's right to freedom of religion.

Our opinion

The European Court of Human Rights is in line with Danish case law, according to which it is possible for an employer to introduce certain limitations as to the employees' wearing of religious symbols. At the same time, the Court's decisions confirm that it is possible for an employer to introduce a dress code, but that the dress code must be factual and the rules must be appropriate and necessary (assessment of proportionality).

The Danish Supreme Court ruled in favour of an employer laying down in the dress code that the employees could not wear religious clothes or jewels as the employer wished that the employees appeared the same and neutral in terms of religion. The Supreme Court found that this purpose was objectively justified by a legitimate purpose, and that the means to achieve the purpose were appropriate and necessary.

The Supreme Court attached importance to the fact that the dress code only applied to employees having direct customer contact and that it was executed consistently vis-á-vis all religions.

Still not allowed to discriminate against due to religion

The above practice must not be confused with the possibility of direct discrimination due to religious faith. It is still contrary to the Anti-Discrimination Act to dismiss an employee due to religion. In the above cases, the employees were dismissed due to the fact that they refused to perform the work they had been employed to do according to the guidelines factually laid down by the employers.

The content of this Newsletter is not, and should not replace, legal advice.

Time to give notice of remaining holiday

According to the Holiday Act, notice concerning remaining holiday, meaning holiday in excess of the three weeks the employee is entitled to take during the summer period, must be given at minimum one month's notice. The holiday year ends on 30 April 2013, and if you are to give notice of the employee's remaining holiday, such notice must be given no later than 30 March deducting the number of days that have already been taken.

If you have a lot of employees who need to take remaining holiday, you should plan this as soon as possible in order to avoid that all the employees take holiday on the last days of April. 

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