Case of the week: Religious symbols and workers’ rights

Miss N Eweida v British Airways Plc

FACTS Miss Eweida, a practising Christian, has worked for British Airways (BA) as a member of check-in staff since 1999. She remains employed by BA. As her job is customer-facing, she is required to wear a uniform. From 2004 until February 2007, the uniform policy prohibited the wearing of visible items of jewellery. Mandatory religious apparel was permitted only if it could not be concealed by the uniform and its design was approved by management. Between 20 May and 20 September 2006, Eweida attended work wearing a visible silver cross. When she refused to conceal the cross, she was sent home and remained at home, unpaid, from 20 September 2006 until February 2007, when the uniform policy was amended to allow staff to display a faith or charity symbol.

Eweida brought claims under the Employment Equality (Religion or Belief) Regulations 2003 of direct and indirect discrimination, and harassment, as well as a claim for unlawful deduction from wages.

DECISION The tribunal dismissed Eweida’s claims and found there was no direct discrimination. BA would have treated any person displaying a cross or any symbol of faith on a neck chain in the same way, regardless of faith or religious inclination. The complaint of direct discrimination failed because Eweida did not suffer less favourable treatment than a comparator in identical circumstances.

The claim for harassment failed because there was no evidence that BA engaged in unwanted conduct apart from seeking to enforce the contractual uniform policy, and there was no evidence that BA treated Eweida any differently on the grounds of her religion.

BA had applied its standard uniform policy to Eweida, namely that personal jewellery or items, including any item worn for religious reasons, should be concealed by the uniform unless expressly permitted by BA. However, this did not put Christians at a particular disadvantage compared with other persons. Visible display of the cross was not a requirement of the Christian faith, but a personal choice. Her claim of indirect discrimination failed.

The tribunal also rejected the unlawful deductions claim. The duty to wear the uniform was contractual and as Eweida failed to perform the contract in full, BA was not bound to accept part performance and was authorised to refuse to pay.

IMPLICATIONS Although this is only a first instance decision, and not binding on other tribunals, it is consistent with the approach taken by the EAT in Azmi v Kirklees Borough Council.

Cases of indirect discrimination in this area will always rely on specific facts and circumstances. Employers need to be careful to ensure dress code requirements do not negatively impact on members of a particular faith group. If they do, an employer will always need to show that it is trying to achieve a legitimate aim (i.e. that there is a genuine and important reason for its policy) and that the policy is proportionate (i.e. that it is reasonable and necessary and there are no less discriminatory alternatives).

It is notable that the tribunal accepted that an employer can refuse to pay an employee who refused to comply with a uniform policy (where it is a contractual requirement). In practice this will usually mean employers are able to deduct pay for time lost while employees go home to change.

Mary Clarke, partner, DLA Piper

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