In Eweida v British Airways plc [2010] EWCA Civ 80, the Court of Appeal has ruled that British Airways’ dress code, which prevented a Christian employee from wearing a small, visible cross with her uniform, did not amount to indirect religious discrimination.
Ms Eweida has worked for British Airways (BA) since 1999. In 2004, the company introduced a new uniform with an open neck and a uniform policy that prohibited employees from wearing any visible adornment around their neck. Ms Eweida came into work on three occasions wearing a small cross on a chain, but concealed it when asked to do so. On a fourth occasion she refused to conceal it and was sent home.
She remained at home, unpaid, between September 2006 and February 2007. BA changed its uniform policy to permit the display of a faith or charity symbol. Ms Eweida then returned to work and is still employed by BA.
Ms Eweida brought proceedings for direct and indirect religious discrimination and harassment. An employment tribunal rejected all her claims but added that, if there had been indirect discrimination, it would not have been justified. Ms Eweida appealed on the single issue of whether she had suffered indirect discrimination and BA cross-appealed against the tribunal’s finding on justification.
The Employment Appeal Tribunal upheld the tribunal’s finding that there was no indirect discrimination because Christians had not been placed at a disadvantage by the policy. It was not a requirement of the Christian religion that followers visibly display the cross. Further, nobody else (out of a uniformed workforce of 30,000) had ever complained about the policy. Therefore, there was no provision, criterion or practice which put or would put ‘persons’ of the same religion or belief as the claimant at a particular disadvantage, as required by the Employment Equality (Religion or Belief) Regulations 2003.
Ms Eweida argued before the Court of Appeal that no evidence of group disadvantage was necessary and ‘persons’ could mean a single individual. The use of the conditional (‘would put persons… at a particular disadvantage’) required the tribunal to aggregate the claimant with a hypothetical peer group who would all suffer the same disadvantage.
The Court of Appeal rejected this contention, finding that use of the word ‘would’ is simply to include in the disadvantaged group those to whom the condition potentially applies as well as those to whom it actually applies. In this case, there was no evidence that there were any others in society at large who shared Ms Eweida’s beliefs and would suffer a potential disadvantage were they to be BA employees.
Ms Eweida also cited the European Convention on Human Rights in support of her claim, without any joy. The Court relied on case law which showed that the Convention does not protect every act motivated by religion or belief.
Having held that there was no indirect discrimination, the Court did not need to reach a decision on the issue of justification. However, two of the three judges said they would have upheld BA’s claim that its policy was in any event a proportionate means of achieving a legitimate aim.
Further appeal likely
Ms Eweida’s appeal was backed by the UK human rights organisation Liberty, which has expressed disappointment at the outcome, adding that this was “just the sort of case that a Supreme Court is for”. This strongly suggests that Liberty will support an application by Ms Eweida for leave to appeal to the UK’s highest court.
Irrespective of the legal niceties explored in this case, the main message for employers is to consider their uniform policies carefully and treat employees’ requests to circumvent a rule for religious reasons sensitively and respectfully.
