Can a requirement for staff to remove religious jewellery constitute religious discrimination?

Onuoha v Croydon Health Service NHS Trust

The facts

The Claimant, Ms Onuoha is a devout Catholic. One of her religious beliefs is that it is important to manifest her faith by wearing a cross around her neck. She has worn a necklace with a cross pendant on it for 40 years.  She was employed by the Respondent for almost 19 years as a surgical nurse.

Throughout her employment, Ms Onuoha was asked on several occasions to remove the cross, to wear a longer chain to conceal the cross or to take other steps to ensure the cross was not visible.

The Claimant declined on each occasion, making it clear that the cross necklace was a religious item.

Ms Onuoha frequently asked why she was being made to remove/conceal her cross necklace, when other members of staff were being permitted to wear hijabs, turbans and kalava bracelets.

The Respondent’s position was that there was a need to remove the necklace as it was both an infection risk and health and safety risk to Ms Onuoha herself.

The Claimant raised a grievance in October 2018, complaining of discrimination on the grounds of race and religion under the Equality Act 2010.  The Claimant also complained of being exposed to hostility and threatening behaviour in the workplace.  In November 2018 the Claimant was redeployed to non-clinical duties.

The decision

The ET found that the infection risk posed by a necklace of the type worn by the Claimant was very low.

The Respondent’s protocols allowed the wearing of plain rings, stud earrings and neckties.  There was no explanation as to why plain rings and earrings were permitted, but plain necklaces were not, given the wearing of a plain ring presented the same risk of infection, if not greater than the wearing of a plain necklace.

Furthermore, no proper explanation was given as to why other employees were permitted to wear other items of religious apparel such as headscarves, turbans and kalava bracelets and in the ET’s view, these items of jewellery posed the same risks in terms of infection and the potential risk to health and safety.

The ET found that the Claimant had been unfairly constructively dismissed and subjected to victimisation and indirect discrimination.

Comment

The facts, in this case, are distinguishable from the facts in the cases of Eweida And Chaplin v The United Kingdom which came before the European Court of Human Rights in 2011.

In that case, Ms Chaplin brought a claim of indirect discrimination against Royal Devon and Exeter NHS Trust Hospital when she was asked to wear her necklace with a cross under her uniform for health and safety reasons.  When she refused, she was transferred to a desk job.

At ET the Trust successfully argued that the requirement was proportionate to maintaining the health and safety of patients and hospital staff and did not amount to discrimination.  This was upheld on appeal at all levels. This contrasted with Ms Eweida’s claim in the same case in which the concern of the employer airline was more in the way of corporate image/professional appearance as opposed to health and safety.

Ms Onuoha’s case can be distinguished from the Chaplin case due to the inconsistency with which the dress code policy was applied – Ms Onuoha was frequently told to remove her cross, however other members of staff were not subjected to the same level of scrutiny for wearing other items of religious and non-religious items.

This case is a warning to employers that when seeking to justify potentially discriminatory dress code policies on health and safety grounds, it is essential to ensure that it is applied consistently across the workforce.