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Gay cakes and dress codes – when beliefs and rights clash

Emma Burrows
trans equality

The conflict between religious freedom and other rights was captured in last year’s high profile “gay cake case”.  Contributor Emma Burrows – Trowers & Hamlins LLP.

Although the Supreme Court concluded that the bakery’s refusal to bake a cake for a homosexual customer with a caption “Support Gay Marriage” was not discrimination on grounds of his sexual orientation (the reason for the less favourable treatment was the message he wanted to be iced on the cake), it highlighted the need to balance competing rights.

Employers must negotiate the tricky balance that has to be achieved between conflicting rights.  Employees should not be discriminated against because they hold certain religious views or beliefs, but this does not mean that they can manifest or express these beliefs regardless of the impact on others.  

The tensions highlighted in the “gay cake case” (Lee v McArthur and ors) are nothing new.  In Mbuyi v Newpark Childcare (Shepherds Bush) Ltd an employment tribunal held that a Christian nursery nurse was discriminated against by her employer on the grounds of her religion or belief when it dismissed her for expressing negative views about a colleague’s homosexuality (these arose out of her belief that homosexuality was a sin). 

By contrast, in Wasteney v East London NHS Foundation Trust the Employment Appeal Tribunal (EAT) held that disciplinary action taken against a Christian senior manager for imposing her religious views on a Muslim junior employee was not discriminatory.

There are a number of other decisions dealing with the conflicts between sexual orientation and religious belief.  In Ladele v London Borough of Islington a Christian registrar refused to carry out civil partnership duties as same-sex relationships were against her religious beliefs.  The case went to the European Court of Human Rights (ECHR).  The ECHR held that differences in treatment based on sexual orientation require serious reasons by way of justification, and the council’s aim of providing a non-discriminatory service was legitimate.

In McFarlane v Related Avon Ltd, a Christian relationship counsellor with Relate was dismissed because he refused to provide psycho-sexual counselling to same-sex couples as it conflicted with his religious beliefs.  The EAT held that where an employee refuses to comply with principles that are fundamental to an employer’s ethos (in this case, Relate’s equal opportunities policy), and which the employer has pledged to the public to maintain, the employer does not have to compromise those principles by making or considering arrangements to accommodate the employee’s requests.

It will be legitimate for employers to have a policy prohibiting behaviour which could amount to unlawful harassment, even though the behaviour in question merely consists of the expression of a strongly held religious belief.  However, any such policy must be proportionate and applied equally to all religious groups.

Dress codes at work can also impact on the expression of an individual’s religious belief.  Any restriction on an employee’s right to wear things associated with their religious beliefs should be avoided.  If there is a restriction then the balance between the reason for it and the disadvantage to the employee must be properly considered.

The Court of Justice of the European Union (CJEU) considered dress codes in Bougnaoui v Micropole Univers and Achbita and another v G4S Security Systems.  In Bougnaoui, a design engineer was sent by her employer to clients.  A customer complained that the veil she wore “embarrassed” a number of its employees.  Accordingly her employer asked her to observe a principle of “neutrality” in relation to her dress.  When she refused she was dismissed.

In Achbita a Muslim receptionist informed her employer that she was going to wear a headscarf in the workplace.  Her employer informed her that this was contrary to its “strict neutrality” rule in the workplace and she was dismissed. The CJEU held that the prohibition from wearing outward signs of political, philosophical or religious belief was not discriminatory under the EU Employment Equality Directive, provided that such a ban is based on a general company rule which prohibits political, philosophical and religious symbols from being worn visibly in the workplace.

An individual’s right to manifest their religious beliefs under the European Convention on Human Rights should also be considered.  In Eweida and others v United Kingdom the UK was held to have failed to protect Ms Eweida’s right to wear a discrete cross outside her uniform. Neutral dress codes may have been given the all clear, but there is still a possibility that individuals will rely on Eweida to claim that their employer has interfered with their right to manifest their religious beliefs.

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