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Workers' religious beliefs must be respected

28 October 2014

Readers may have been alerted to the $40,000 awarded to a television and aerial technician after he was discriminated against because of his religious beliefs.

The Human Rights Act prohibits discrimination on many grounds including sex, race, ethnic or national origin, disability and age. The prohibition applies whether the person is in employment or not.

If someone believes they are discriminated against in their employment, they have the choice of taking proceedings before the Human Rights Review Tribunal or the Employment Relations Authority.

It is not unusual for people to claim discrimination on grounds of age or race. Proceedings based on religious belief are much less common.

Mark Meulenbroek worked since 2004 for Vision Antenna in Invercargill. He installed TV and audio systems and was considered a fantastic worker.

Meulenbroek had been a member of the Seventh Day Adventist Church until the age of 20. He rejoined the church in mid- 2011. Consistent with his renewed faith, Meulenbroek wished to keep the period from sunset Friday until sunset Saturday free as the Sabbath day.

Over the course of his employment, Meulenbroek had been given some Saturdays off but not all. In September 2012, Meulenbroek refused to work on the Sabbath and was dismissed as a result.

Meulenbroek took a claim in the Human Rights Review Tribunal which accepted that he had been discriminated against. The Human Rights Act provided that where an employee adhered to a religious belief that requires them to follow a particular practice, the employer must accommodate the practice if it will not unreasonably disrupt the employer's activities.

The tribunal found that the employer could have done more to accommodate Meulenbroek's unwillingness to work by offering him the option of working on Sundays instead.

Meulenbroek's stance is certainly not unheard of. Readers may recall All Black Michael Jones who refused to play in matches on Sundays as a result of his religious beliefs. This was accepted by the then New Zealand Rugby Football Union.

Religious discrimination can also take other forms, as shown in the case of Nadia Eweida.

Eweida was employed by British Airways in a check-in role. She was Christian and wore a small cross necklace.

Initially Eweida wore the cross under her uniform, however, in May 2006, she chose to wear the cross on top of the uniform.

British Airways had a policy that required staff to wear mandatory religious accessories or clothing items underneath their uniform unless that would be impossible, such as in the case of a turban.

Eweida was asked by her employer to cover up her necklace. Initially she complied but ultimately decided that the airline's position was unacceptable. The airline offered Eweida an alternative position without customer contact but this was rejected. As a result, Eweida was placed on unpaid suspension.

Readers will be divided about whether Eweida or British Airways were in the right.

Eweida first took a claim for discrimination in the UK's Employment Tribunal, but she was unsuccessful.

Undeterred, Eweida pursued her claim all the way to the European Court of Human Rights.

The courts had to balance British Airways' desire to protect its corporate image with Eweida's right not to be discriminated against because of her religion.

In the end, the court found that Eweida had been discriminated against. It considered that the cross could not have detracted from Eweida's professional appearance. It also stated that there was no evidence that allowing Eweida to wear the item would have a negative impact on the airline's brand or image.

The decisions in the cases of Meulenbroek and Eweida seem sensible. Respect for the individual carries with it an obligation to show some tolerance and of course to comply with human rights legislation.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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