The Court of Appeal has handed down its decision in the case of Eweida v British Airways plc, confirming that the company’s uniform policy did not discriminate on the grounds of the employee’s religion or belief.
Employment Principal Lorna Townsend comments.
In this well-publicised case, the employee persisted in wearing a silver cross over her uniform as a personal expression of her Christian faith. This breached the employer’s uniform policy at the time, which prohibited the wearing of any visible adornment with the exception of “mandatory” religious items. The employee was sent home having been warned not to wear the cross at work. She only returned to work after the employer had changed its policy to allow staff to display a faith symbol with their uniform.
The employee brought claims for direct discrimination, indirect discrimination and harassment, contrary to the Employment Equality (Religion or Belief) Regulations 2003. Her claims were dismissed by the employment tribunal, and she appealed against the decision to dismiss her indirect discrimination claim. The Employment Appeal Tribunal (EAT) upheld the tribunal’s decision that the employee had not been indirectly discriminated against, as there was no evidence that Christians as a group had been placed at a “particular disadvantage” by the company’s uniform policy.
The Court of Appeal has also now dismissed the employee’s claim for indirect discrimination. In order, to establish indirect discrimination it must be shown that the employer applies or would apply a provision, criterion or practice to persons which puts or would put persons of the same religion or belief as the employee at a particular disadvantage.
The Court held that current legislation does not provide that “solitary disadvantage” is sufficient to establish indirect discrimination. There must be evidence that an “identifiable section of a workforce, quite possibly a small one” has suffered a particular disadvantage. In this case, it was only the appellant who had suffered a particular disadvantage. There was no evidence to suggest that other British Airways staff had also suffered disadvantage as a result of the uniform policy.
Comment
From an employer’s perspective this case is significant because the Court has recognised the difficulties of devising a dress code to cater for all religions and beliefs within a workplace. At times, this can seem like an impossible task which led the leading judge to suggest that “a blanket ban may sometimes be the only fair solution”. This comment should be treated with caution, however, since the judgment also supports a distinction between the wearing of items that are a mandatory requirement of an individual’s faith (such as a Sikh turban), and those that are desired by the individual as an expression of their faith. In any event, British Airways has amended its dress code so that the display of religious symbols is now permitted. Ms Eweida has indicated that she intends to appeal the case to the Supreme Court.
A copy of the Court of Appeal judgment is available here