BA crucifix wearer loses tribunal appeal.
Nadia Eweida is a practising Christian. She works for British Airways (BA) as a member of check-in staff and is required to wear a uniform. From 2004 until 2007, BA’s uniform policy prohibited the wearing of visible items of jewellery. Between 20 May and 20 September 2006, Eweida attended work wearing a visible silver cross on a necklace. When she refused to conceal the cross, she was sent home. She remained at home, unpaid, from 20 September until February 2007, when the uniform policy was amended allowing staff to display a faith or charity symbol.
Eweida brought a number of claims against BA, including claims under the Employment Equality (Religion or Belief) Regulations 2003 of direct and indirect discrimination and harassment.
The tribunal dismissed Eweida’s claims. It held there was no direct discrimination. Eweida had not been treated less favourably than BA would have treated any other person with a faith, or no faith, displaying jewellery over their uniform. The tribunal also held there had been no harassment. There was no evidence that BA had engaged in unwanted conduct. It had simply sought to enforce its contractual uniform policy.
Further there was no evidence that BA’s treatment of Eweida was on the grounds of her religion. In relation to the claim of indirect discrimination, the tribunal found that BA had applied a provision, criterion or practice to the claimant. This was the requirement that any jewellery should be concealed by a uniform. However, the tribunal said this did not put Christians at a particular disadvantage compared with other persons, so this claim also failed.
Eweida appealed the tribunal’s finding on the grounds of indirect discrimination. The Employment Appeal Tribunal upheld the tribunal’s decision. It said that the whole purpose of indirect discrimination is to deal with the problem of group discrimination.
The starting point is that persons of the same religion or belief as the claimant should suffer a particular disadvantage – as distinct from those that do not hold that religion or belief – as a consequence of holding that religion or belief. Eweida had not provided any evidence that others shared her religious conviction about openly displaying a cross and it was not enough for her to identify a disadvantage that she personally suffered.
It must also be possible to make some general statements which would be true about a religious group such that an employer ought reasonably to appreciate that a particular provision may have a disparate impact on the group.
Although cases of indirect discrimination in this area will always turn on their specific facts, this case does highlight the care that employers must take to ensure dress codes do not negatively affect members of a particular faith group.
The key consideration is whether the dress code disadvantages a group of people holding 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. Where a dress code does disadvantage a group, the employer will have to consider whether the dress code is justified as a proportionate means of achieving a legitimate aim. In other words, the code is justified if there is a genuine and important reason for it and the discriminatory impact of the policy has been assessed.
Clare Gregory, partner, DLA Piper