Can Your Employer Force You To Remove a Religious Necklace

On 5th July 2022, the Employment Appeal Tribunal found that a Christian member of the workforce had had his employment terminated unfairly after he failed to take off a religious cross whilst in the workplace as requested by his employer.

What Happened In the Case?

The Claimant had commenced employment in a position described in the court papers as a press operative by the leading food organisation 2Sisters from around mid-November 2019. The Claimant’s career with the company appears to have been progressing well within the organisation and he quickly achieved promotion to a role where he was responsible for assessing quality within the factory. As a practising Christian who adhered to the teachings of the Orthodox Russian Church, the Claimant decided to publicly display his faith and in this regard, he made the personal decision to wear upon his person a silver cross-shaped necklace daily. The business requested for the employee at the centre of proceedings to take off the necklace. However, he declined to do so based on his religious beliefs.

Why Did The Employer Ask The Employee To Take Off The Necklace?

The Claimant’s employer insisted on the Claimant removing the religious cross necklace and supported its claim by pointing to a health and safety policy governing such an order. The Respondent submitted evidence that the wearing of a religious necklace in a food production establishment presented two risks to health and safety:

• firstly, to prevent members of the workforce from getting caught up in the factory equipment and
• secondly, the likelihood that the food being produced being somewhat adulterated.

What Did The Business’s Policy Say?

The Employment Appeal Tribunal examined the business’s policy and discovered that it sought to outlaw the wearing of jewellery on its premises. The only two exemptions from the application of the policy were the permission given for a single, plain band ring to be worn and made a special dispensation for the jewellery of a religious nature. However, the Claimant’s employer’s policy document advised that the wearing of it was subject to an internal impact assessment.

What Did The Judge Say?

The judge reviewed the evidence submitted and the Claimant’s employer’s argument appeared to have crash-landed on take-off. The judge commented that the way the Health and Safety policy was enforced prevented the Claimant from wearing the religious necklace and put him in a disadvantageous position. The judge communicated his view clearly and held that there was a correlative and causative link between the employee’s desire to wear a piece of religious jewellery, the employer’s decision to terminate his employment and was equivalent to a detriment, less favourable treatment and was ultimately discriminatory.

What Should Lawyers Be Advising Clients?

In-house and external lawyers should be advising business clients to take on board the lessons contained in this case as it is likely to make it significantly more difficult for businesses to enforce policies which prohibit the wearing of religious items of jewellery. Employers should employ the following tactics regarding the wearing of pieces of religious jewellery in the workplace:

• reduce the need for impact assessments on the wearing of items of religious jewellery
• ensure their dress codes are compliant
• check their internal documents such as minutes from disciplinary meetings
• review their policies to see if they have been applied in an irrational, erratic or disproportionate way.

The real message for all employers hearing the Employment Tribunal judgment is plain for all to see, ‘employers should not be banning jewellery carrying religious symbolism. There is no reason to impose such a restriction on their workforce.

ASSESSING FIRMS

#Allen&OveryLLP #BakerMcKenzie #HerbertSmithFreehills #LewisSilkin #MishcondeReyaLLP #Simmons&Simmons #AddleshawGoddard #CliffordChance #CMS #DACBeachcroft #EvershedsSutherland #LinklatersLLP #TaylorWessing #TraversSmith #Bird&Bird #BryanCaveLeightonPaisner

SOURCES USED WHEN WRITING THIS ARTICLE

[1] Powell, Caitlin – Factory worker was unfairly dismissed for not removing religious necklace, tribunal rules – 5th July 2022 – People Management - Factory worker was unfairly dismissed for not removing religious necklace, tribunal rules (peoplemanagement.co.uk)

[2] Mr J Kovalkovs v 2Sisters Food Group Limited – Case Number: 4102454/2020 - EMPLOYMENT TRIBUNALS (SCOTLAND) (publishing.service.gov.uk)

[3] Homer & Hanson plc v Lax [2005] EWCA Civ 846

[4] Section 19(2)(d) Equality Act 2010

[5] Part X of the Employment Rights Act 1996 – Section 94 – 98 - Employment Rights Act 1996 (legislation.gov.uk)

[6] Section 10 Equality Act 2010 - Equality Act 2010 (legislation.gov.uk)

[7] Section 13 Equality Act 2010 - Equality Act 2010 (legislation.gov.uk)

[8] Section 19 Equality Act 2010 - Equality Act 2010 (legislation.gov.uk)

[9] Section 24 Equality Act 2010 - Equality Act 2010 (legislation.gov.uk)

[10] Section 26 Equality Act 2010 - Equality Act 2010 (legislation.gov.uk)

[11] Section 27 Equality Act 2010 - Equality Act 2010 (legislation.gov.uk)