Employers breathed a sigh of relief when, on 20 January 2010, the Court of Appeal rejected Miss Eweida’s claim that she had been discriminated against indirectly on grounds of religious belief by British Airways PLC.
The claimant, a devout practising Christian worked part time as a member of the check-in staff for BA since 1999 and has to wear a uniform because her role is customer-facing. The role also involved shift work. She complained of a number of incidents between 2003 and 2006 which she said showed anti-Christian bias by BA.
Up until 2004, her uniform included a high-necked blouse, and she wore a silver cross on a necklace underneath the blouse. British Airways redesigned the uniform in 2004, which included provision for an open neck, but prohibited any item of ‘adornment’ around the neck. Between 20 May and 20 September 2006 she came to work on at least three occasions with the cross visible under her uniform, but when asked to conceal it complied. However, on 20 September 2006 she refused and was sent home by her employers. She remained at home, unpaid from that date until the following February and launched grievance procedures. There was significant media attention – much of it hostile to BA and this led the airline to reconsider its uniform policy and amend it on 1 February 2007. This amended policy permitted staff to display a faith or charity symbol with the uniform. Miss Eweida returned to work on 2 February 2007 and is still an employee of BA.
She brought a number of claims against her employer, including claims under the Employment Equality (Religion or Belief) Regulations 2003 of direct and indirect discrimination and harassment. The Employment Tribunal dismissed these and found no evidence BA had done anything other than attempt to enforce its contractual uniform policy. Neither was it able to support the claim that she had been discriminated against on grounds of her religion – the policy did not single out Christians – all personal jewellery had to be concealed by the uniform.
The Court of Appeal was left to decide whether there had been indirect discrimination against Ms Eweida on grounds of her religion or belief. Because there was no identifiable section of the workforce (not even a small one) that would have suffered a particular disadvantage by not being able to display the jewellery, this claim failed as well, with Lord Justice Sedley commenting: ‘This case has perhaps illustrated some of the problems which can arise when an individual (or equally a group) asserts that a provision, criterion, or practice adopted by an employer conflicts with beliefs which they hold but which may not only be shared but may be opposed by others in the workforce. It is not unthinkable that a blanket ban may sometimes be the only fair solution.’
Tim Marshall, national head of employment at DLA Piper observes:
‘Cases of indirect discrimination in this area will always turn on their specific facts, and employers must still take care to ensure that dress codes do not negatively impact on members of a particular faith. A dress code will not be indirectly discriminatory if it is only to the disadvantage of someone holding a subjective personal religious view, or other belief. Where a dress code or other policy or practice does disadvantage a group, the employer will have to consider whether the dress code is justified, i.e. whether there is a genuine and important reason for its policy and whether there are any less discriminatory alternatives which could reasonably be implemented.’
See also ‘Get a haircut’ is not sex discrimination, says the EAT, The People Bulletin, 20 January 2010.
And ‘Dress down tribunals’ by James Williams, The People Bulletin, 2 December 2009.
www.dlapiper.com/global/publications/detail.aspx?pub=4816
http://www.bailii.org/ew/cases/EWCA/Civ/2010/80.html