The EAT has upheld the tribunal decision in the case of Eweida v British Airways, and confirmed some useful points of principle in relation to unlawful discrimination on religious grounds.
BA had a uniform policy which meant that a religious item could only be worn visibly outside the uniform if wearing the item was a mandatory scriptural requirement – examples were given of the hijab, the turban, and the skull cap worn by some Muslims, Sikhs, and Jews respectively.
The claimant argued that her cross fell into this category. The EAT held that it did not. There was no direct discrimination as the policy applied universally.
For indirect religious discrimination to be established, there must be evidence of 'group disadvantage'. It was not enough for the claimant to say that she felt disadvantaged or even that another employee might feel similarly disadvantaged. There must be evidence that a sufficient number of persons of the same religion or belief would suffer the disadvantage and that was not so in this case.
Effect on employers
Employers can take comfort from the fact that although 'religion or belief' is very broadly defined in the relevant regulations, the BA case confirms that it is 'group discrimination' that is being outlawed. It is not enough for a claimant, as in this case, to say that she personally suffered a disadvantage.
On dress codes generally, the EAT was content that BA's uniform policy fulfilled a legitimate aim – brand uniformity which provided a consistent, professional and reassuring image. However, the tribunal warned that, in a case where group discrimination could be proved, a 'blanket' ban on wearing jewellery (which might or might not have religious significance) over uniform would probably be seen as disproportionate. BA has since changed its uniform policy to allow staff to display a 'faith or charity symbol' on their uniform.
Eweida v British Airways Plc UKEAT/0123/08