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Nadia Eweida religious bias case sets the bar for European employers

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Nadia Eweida religious bias case sets the bar for European employers

Employers with operations in Europe must balance their employees' right to demonstrate their religious beliefs against the rights of others and corporate objectives, as a result of a landmark ruling by the European Court of Human Rights.

In Nadia Eweida & Others v. the United Kingdom, the court ruled that a workplace dress code that prevented an airline check-in clerk from wearing a visible crucifix violated her right to express religious belief, although wearing a cross is not an express requirement of the Christian faith.

However, in three other cases heard with Eweida involving Christian beliefs, only one of which also was based on wearing a religious symbol on the job, the court ruled that employers' policies did not breach the European Convention on Human Rights.

Ms. Eweida, a Coptic Christian, was employed as a check-in clerk by British Airways P.L.C., which sent her home without pay in 2006 for refusing to remove a crucifix.

At the time, British Airways' uniform policy required women to wear a high-necked shirt and scarf with no visible jewelry. The uniform had to cover any item an employee was required to wear on religious grounds and, if that was not possible, approval to wear was required.

Ms. Eweida was offered administrative work that did not require a uniform or customer contact. In 2007, she returned to her job after British Airways updated its uniform code allowing employees to display symbols of faith or charity.

In 2008, an employment tribunal found that the airline did not discriminate against Ms. Eweida, saying that wearing a visible cross was not a requirement of Christianity. In 2010, the U.K. Supreme Court refused to hear the case.

But this month, the European Court of Human Rights ruled that “a fair balance had not been struck between ... her desire to manifest her religious belief and to be able to communicate that belief to others, and ... her employer's wish to project a certain corporate image.”

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The court ruled that the airline failed sufficiently to protect Ms. Eweida's right to religious freedom and ordered British Airways to pay her !2,000 ($2,664) in damages and !30,000 ($39,963) in costs.

As a result of the ruling, employers with operations in the United Kingdom or elsewhere in Europe may revisit their uniform codes, legal experts said.

“Employers are advised to revisit policies such as uniform and dress codes to check their justification of practices which might prevent employees manifesting their religious beliefs,” said Emma Bartlett, a partner in the employment group at London-based law firm Speechly Bircham L.L.P.

“Employers will be obliged to accommodate reasonable requests relating to uniforms which do not impact the rights of others,” said Claire Dawson, an employment lawyer at Slater & Gordon (U.K.) L.L.P. in London. “This is something many employers already do.”

The ruling shows that the court believes that the right to religious freedom does not “trump” other human rights, said Rachel Dineley, an employment partner at DAC Beachcroft L.L.P. in London. But employers must try to resolve such cases when a conflict arises, she said.

One important element of the Strasbourg court's decision is that it was sufficient for Ms. Eweida to demonstrate that her rights as an individual had been breached, Ms. Dineley said. The previous U.K. rulings in her case dismissed her claim in part because she could not show that a group of people were disadvantaged by British Airways' previous uniform policy.

The court's decision “suggests that any genuine manifestation of religious belief should be protected, even if it is not shared by others,” said Tom Heys, a legal analyst at Lewis Silkin L.L.P. in London.

The judgment “demonstrates that preventing an action on the basis that the action is not a mandatory requirement of their belief — as has been one of the approaches in the U.K. courts — is the wrong approach,” said Tim Forrer, a barrister at Blake Lapthorn Solicitors in Southampton. “The action only needs to be "intimately linked' to the religion,” he said. “Employers must strike a careful balance between the rights of their employees and any policies that tend to conflict with them.”

Companies in the United States with 15 employees or more must adhere to the religious freedom protections in the U.S. Constitution and the Civil Rights Act, which are comparable to those in the European Convention on Human Rights, Ms. Dineley said. But U.S. employers with operations in Europe may wish to study Eweida and revisit their dress codes, if they wish to adopt a common approach across their multinational businesses.