Veitch Penny LLP - Exeter | Crediton, Devon

Case

Eweida v British Airways Plc
Employment Appeal Tribunal

Issues

(1) The Employment Equality (Religion or Belief) Regulations 2003
(2) Direct and indirect discrimination
(3) Unlawful deductions

Facts

Miss Eweida works for British Airways as a member of check-in staff. She was employed in 1999. As part of her duties, she is required to wear a British Airways uniform. At the time the dispute arose the employer’s uniform policy stated that customer-facing employees could not wear visible items of jewellery. Clothing or jewellery of a religious nature was permitted only if it was mandatory and if it could be concealed by the uniform itself. Its design needed to be approved by management.

Between May and September 2006, Miss Eweida attended work wearing a visible silver cross. When she refused to conceal it, she was sent home and she remained at home unpaid from 20 September 2006 to February 2007. At this point the employer’s uniform policy was changed and permitted employees to display a symbol denoting a faith or charity.

Miss Eweida made claims against her employer of direct and indirect discrimination and harassment under the Employment Equality (Religion or Belief) Regulations 2003 (“the Regulations”). She also made a claim for unlawful deduction from wages.

Decision

The Tribunal considered Miss Eweida’s claim and dismissed them. With respect to direct discrimination, it found that the employer would have treated an employee wearing any sort of symbol of faith on a neck chain in the same way and the treatment she had received was not related to her faith. Consequently, she did not suffer less favourable treatment than a comparator in identical circumstances.

With regard to her claim for indirect discrimination, the employer had applied its standard policy. It was concluded that this policy did not put those of a Christian faith at a particular disadvantage compared to others. It also noted that display of the cross was not a requirement of the faith but simply personal choice.

Her claim for harassment also failed. The Tribunal found that there was no evidence that the employer had engaged in unwanted conduct apart from seeking to enforce its contractual uniform policy. There was no evidence she had been treated any differently as a consequence of her religious belief.

Finally, in connection with her claim for unlawful deductions, the Tribunal found that the duty to comply with the policy was part of her contract of employment. As she had failed to perform the contract in full, her employer was permitted to refuse to pay her.

Comments

The finding in this case follows the reasoning in the case of Azmi v Kirklees Borough Council which was widely reported in the press. In the Azmi case, she failed in her claim of direct discrimination on grounds of religious belief when asked by her employer to remove the veil which covered her mouth. When she refused to remove her full veil in the classroom when teaching she was suspended. The Tribunal found that there was no less favourable treatment and that asking her to remove her veil was a proportionate means of achieving a legitimate aim.

These cases do remind employers that each case will be different and must be determined on its own particular facts. If employers are considering the implementation of a dress code, they will need to make sure that the requirements of that code do not negatively impact employees who may be members of particular religious groups. They must be able to demonstrate that it is achieving a legitimate aim i.e. that there is a real reason justifying the need for that particular measure.


Rachel Billen – Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.