Veitch Penny LLP - Exeter | Crediton, Devon

Case

Eweida –v- British Airways Plc (“BA”)
Court of Appeal – 12 February 2010

Issues

(1) The Employment Equality (Religion or Belief) Regulations 2003 (“the Regulations”)
(2) Dress codes
(3) Direct and indirect discrimination

Facts

Regulation 3(1)(b) of the Regulations provide “(1) for the purposes of these Regulations, a person (“A”) discriminates against another person (“B”) if… (b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same religion or belief as B, but – (i) which puts or would put persons of the same religion or belief as B at a particular disadvantage when compared to other persons, (ii) which puts B at disadvantage and (iii) which A cannot show to be a proportionate means of achieving a legitimate aim.

Miss Eweida worked part-time as a member of check-in staff for BA and had done so since 1999. She was a devout practising Christian. She had complained about incidents taking place between 2003 and 2006 which she felt showed an anti-Christian bias on the part of her employer. In 2004 there was a change to the BA uniform which meant she wore an open necked blouse. The new policy prohibited the wearing of any visible item of adornment around the neck. The only exceptions were religious items that were a “mandatory scriptural requirement” and could not be concealed.

On at least three occasions in 2006 Miss Eweida went to work wearing a visible cross. When she was asked to conceal it, she did. However, on 20 September she refused to conceal the cross and was sent home pursuant to the terms of the policy. She then remained at home unpaid from 20 September until the following February. She brought an internal grievance and subsequently BA reconsidered its uniform policy and allowed staff to display a faith or charity symbol with the uniform. Miss Eweida then returned to work.

She brought a claim at the Employment Tribunal that she had been subjected to direct and indirect religious discrimination contrary to the Regulations. The Tribunal rejected her claims after hearing evidence from practising Christians that the wearing of a cross was not a requirement of the faith. However, the Tribunal went on to find that if the policy had been found to be indirectly discriminatory, BA would not have been able to show it was objectively justified. The Tribunal accepted that BA had a legitimate aim of achieving brand uniformity, but the prohibition of visible jewellery was not a proportionate response to that aim.

The Employment Appeal Tribunal (EAT) upheld both the Tribunal’s findings.

Miss Eweida appealed the earlier findings to the Court of Appeal. She argued that indirect discrimination could be established if a single person’s manifestation of their belief was affected by the BA policy. In turn, BA appealed on the finding on the justification issue.

Decision

The Court of Appeal dismissed Miss Eweida’s appeal. It found that the Regulations were clearly intended to address “group” discrimination. If no evidence of group disadvantage was needed, then part of the wording of Regulation 3(1) would be redundant. There was nothing within the original directive to suggest that the word “persons” was intended to include those at solitary disadvantage.

She was not aided by Article 9 of the European Convention on Human Rights as the European Court had made clear that the Article did not protect every act motivated by religion or belief.

It went on to uphold BA’s cross appeal. Had the Court found the policy indirectly discriminatory, BA could objectively justify it, but on the basis that it affected only one person.

Comments

This case reiterates that employers do not have to review their policies to allow employees to wear any article associated to a religious belief where it relates to an employee’s personal choice. However, given the level of media interest in the case, employers should give thought to the individuals whom such a policy may affect, when implementing or reviewing a dress code.