Facts
Nadia Eweida is a devout Christian who works as a member of British Airways (BA)’ check-in staff. As Eweida’s position is customer facing, she is required to wear a uniform. BA’s uniform policy prohibited the wearing of any visible item of adornment around the neck (such as jewellery). The only exceptions were religious items that were a ‘mandatory scriptural requirement’ and could not be concealed.
On 20 September 2006, Eweida attended work visibly wearing a silver cross on a necklace. She refused to conceal it and was sent home. Eweida rejected an offer of an alternative position that did not involve wearing a uniform. She remained off work until BA introduced an amended uniform policy in February 2007, permitting staff to display a faith or charity symbol.
Eweida brought claims of direct and indirect discrimination to an employment tribunal on the grounds that BA’s uniform policy discriminated against her as a Christian. Her claims were rejected by the tribunal, which found, after hearing evidence from practising Christians, that the visible display of the cross was not a requirement of the Christian faith and instead was a personal decision by Eweida. But the tribunal ruled that had BA’s policy been indirectly discriminatory, they could not objectively justify it. Eweida appealed to the Employment Appeal Tribunal (EAT), which upheld both of the tribunal’s findings. Eweida then appealed to the Court of Appeal, and BA cross appealed the justification findings by the tribunal and the EAT.
Decision
Eweida’s argument before the court was that indirect discrimination can be established if only one individual’s manifestation of their religious belief is affected by a policy. However, the court held that the Religion or Belief Regulations were clearly intended to address ‘group’ discrimination. In this case there was no evidence that anyone else was similarly disadvantaged by BA’s uniform policy or that Eweida’s objection to it was anything other than a personal one, rather than one based on a doctrine of her faith. The court also noted the reference to ‘persons’ in the Religion or Belief Regulations made it clear that parliament did not intend the regulations to cover indirect discrimination against a single person.
Eweida was not assisted by Article 9 of the European Convention on Human Rights (Freedom of Thought, Conscience and Religion). The European Court of Human Rights made it clear that Article 9 does not protect every act motivated by religion or belief.
Finally, the court upheld BA’s cross appeal, and ruled that had they found BA’s uniform policy to be indirectly discriminatory, as the policy affected only one employee, they would have found that BA could objectively justify their policy.
Implications
This decision assists employers facing challenges to their uniform policies by employees who argue it is indirectly discriminatory on the grounds of religion. It confirms that employers do not have to adapt their policies to allow employees to wear any item associated with their religion, where it is the individual employee’s personal choice, rather than an item required by their religion.
But it is interesting to note that although Eweida lost her claim before the tribunal, EAT and now the Court of Appeal, the media storm surrounding the case led to BA changing their uniform policy to allow her to visibly wear the cross.
This case therefore serves as a useful reminder to employers that whenever they introduce or review a dress code, it is worth considering whether it could or would disadvantage employees of a particular religion, and looking at any adjustments that could be made to accommodate items of religious significance.
Paula Bailey, partner, Howes Percival
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