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H&S concerns outweigh religious rights, court rules

The European Court of Human Rights (ECHR) has ruled in favour of hospital bosses who ordered a nurse to remove the Christian cross she was wearing because it posed a health and safety risk.

The judgement of Eweida and others v UK gained national media coverage earlier this week, with the majority of reports focusing on the Court’s verdict that Nadia Eweida, a British Airways (BA) employee, had been subject to a violation of Article 9 (freedom of religion) of the European Convention of Human Rights.

Three other appeals were rejected ““ one of them brought by Shirley Chaplin, who worked as a nurse for the Royal Devon and Exeter NHS Foundation Trust from April 1989 to July 2010. In June 2007, while working on a geriatrics ward and following the introduction of new hospital uniforms with V-necks, Ms Chaplin was asked by her manager to remove the crucifix on the chain around her neck.

Ms Chaplin sought approval to continue wearing her crucifix, but this was refused on the ground that it could cause injury if a patient pulled on it, or if, for example, it came into contact with an open wound. In November 2009 she was moved to a non-nursing temporary position, which ceased to exist in July 2010.

In Ms Eweida’s case, BA had suspended her for several months, from September 2006 to February 2007, after she refused to comply with its corporate-image policy and conceal her cross under her BA uniform.

Both women lodged claims with employment tribunals, complaining, in particular, of discrimination on religious grounds. Both claims were rejected ““ Ms Eweida’s because she had failed to establish that BA’s uniform policy had put Christians, generally, at a disadvantage; and Ms Chaplin’s because the hospital’s decision had been based on health and safety grounds and there was no evidence that anyone other than the applicant had been put at a particular disadvantage.

Following a failed appeal by Ms Eweida to the Court of Appeal in May 2010, Ms Chaplin was advised that any appeal in her case would likely suffer a similar fate.

Later that year, both women lodged appeals with the European Court of Human Rights, along with two other individuals in relation to separate cases.

While the ECHR upheld Ms Eweida’s appeal, ruling that the UK courts had accorded too much weight to BA’s desire to project a certain corporate image, the judges unanimously voted against Ms Chaplin. They ruled that the reason for asking Ms Chaplin to remove her cross ““ namely, the protection of patients’ and workers’ health and safety on the ward ““ was inherently of much greater importance. Hospital managers, they said, were better placed to make decisions about clinical safety than a court that had heard no direct evidence.

The ECHR therefore concluded that the requirement for Ms Chaplin to remove her cross had not been disproportionate and that the interference with her freedom to manifest her religion had been necessary in a democratic society.

Commenting on the judgements, Liz Iles, senior employment consultant at Croner, said: “The decisions in the case of Eweida and others v UK show that there must be a balance between an employee’s wish to display their religious beliefs and a sound rationale why they may be restricted. What this means in practice is that employers must have good justifiable reasons why, for example, employees can’t wear a cross at work.”

She advised employers to explore “all options available to them, as alternatives, when faced with an objection from an employee ““ especially as sensitive as one related to their religion, or belief”.

It is thought that Ms Chaplin, whose case was funded by Christian Concern, will seek an appeal to the Grand Chamber of the European Court of Human Rights.

The faith group said it was disappointed by the Court’s verdict in the case of Ms Chaplin, but stressed that the judges felt they weren’t in a position to adjudicate on the health and safety policy of the hospital. The group added that no credible health and safety risk was ever demonstrated in the British courts and pointed out that the nurse had worn her cross for 30 years in front-line care.

Following the ruling, Lynn Lane, human resources director at the Trust, told the BBC: “This case was between Ms Chaplin and the UK Government. However, we are pleased that the European Court’s findings endorse the earlier findings of an employment tribunal.

“Our own dress code for clinical staff is in accordance with Department of Health guidelines and is designed to protect the health and safety of our patients and staff.”

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