Balancing Act

It seems as though every month there is a new piece of legislation coming out or guidelines being issued applying to employers and imposing new obligations.  Even full-time employment lawyers and HR practitioners may struggle at times to keep up.  Yet businesses must do their best to stay alert to all the developments in the ever changing landscape of employment law to avoid unnecessary claims against them.

Recently, new guidance has been published by the Equality & Human Rights Commission on Religion or Belief in the Workplace.  These guidelines follow the recent decision from the European Court of Human Rights in the combined cases of Eweida and Chaplin -v- United Kingdom.  Both Eweida and Chaplin were prevented from wearing a visible cross/crucifix when in uniform at work.

The court found that Eweida, an airline check-in officer, had been unfairly treated by her employer’s insistence that their corporate image should take precedence over her right to express her religious belief.  The court decided that this amounted to a breach of her rights under Articles 9 and 14 of the European Convention on Human Rights which govern the right to express or manifest religion or belief in practice and protection from discrimination.

In the case of Chaplin, a nurse, whilst accepting that the employer’s decision to prevent Chaplin wearing a cross interfered with her Article 9 rights, the court decided that the health and safety of staff and patients outweighed the right of the employee to wear a visible cross on a chain round her neck.

In a further development in this area, in the case of Redfearn v United Kingdom the European Court of Human Rights decided that a bus driver’s right to freedom of assembly was infringed by the lack of a remedy for his dismissal due to being elected as a local councillor for the British National Party.  Mr Redfearn had insufficient service to bring a case of unfair dismissal and the Court of Appeal had earlier ruled that there was no breach of UK race discrimination law/religion or philosophical belief regulations.  The European Court considered that UK law would need to be changed either to create an exception to the requirement for a qualifying period for unfair dismissal in such circumstances or a free standing claim for unlawful discrimination with regard to political affiliation.

The decisions in the above cases are ground breaking developments which will certainly produce heated debate amongst practitioners, employers, employees and interested bodies as to why and how they should be implemented.  In any event, these decisions should serve as a reminder to employers about the importance of balancing the rights of the individual against the pursuit of legitimate commercial objectives.

This entry was posted in Legal and tagged , by Paul Neilly. Bookmark the permalink.

About Paul Neilly

Paul’s first degree was a BA Honours in Financial Services following which he spent five years working for a large insurance company as a pensions specialist. He then completed his law degree at the University of Strathclyde and Diploma in Legal Practice at the Glasgow Graduate School of Law. Paul subsequently joined Mitchells Roberton as a trainee in July 2006 and qualified as a solicitor in September 2008. Principally concerned with civil litigation, Paul specialises in contract disputes, landlord and tenant issues (commercial and residential), debt recovery, family law, employment law and personal injury claims. He also handles cases involving Adults with Incapacity. Paul regularly appears in the Sheriff Courts throughout Scotland and has experience of appearing before Licensing Boards and instructing matters in the Court of Session. Being a general civil litigator Paul is keenly aware of the need to keep step with developments in the law and legal education. This led Paul to join the committee of TANQ, the Trainee and Newly Qualified Society of the Royal Faculty of Procurators in Glasgow, in which role Paul currently organises seminars and networking events for its members. Paul is married with a young son and daughter. In his spare time he enjoys cooking, reading and watching sport, particularly following the exploits of the national football and rugby teams, although this is more of a vocation than a source of enjoyment.

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