The EAT has held, in the case of Eweida v British Airways plc, that BA's insistence that an employee must remove or conceal a cross that she wore on a necklace did not amount to indirect religious discrimination.
Readers will be familiar with the facts of this case as it received considerable publicity. Ms Eweida is a member of BA's check-in staff. BA's uniform policy allowed employees to wear jewellery under their uniform, provided the jewellery was not visible. Items that were deemed to be a mandatory religious requirement and which could not be concealed were permitted, subject to management approval. Items given management approval included the hijab, turban and skull cap.
Ms Eweida insisted on wearing her cross in a visible manner, having been warned not to do so, and was sent home without pay. She brought claims for religious discrimination and deductions from wages in the tribunal.
The EAT has upheld the tribunal's decision in BA's favour. In order to establish indirect discrimination, the employee has to be able to show that a particular provision, criterion or practice puts a particular group at a disadvantage. The EAT held that it must be possible to make general statements which would be true about a religious group, so that the employer ought reasonably to appreciate that a particular provision may have an adverse impact on the group. This could not be shown on the facts of this case. Ms Eweida had not provided any evidence at all that anyone other than her had suffered a disadvantage. The EAT therefore held that there had been no indirect discrimination.
Impact on employers
This decision confirms that where an employee seeks to rely on indirect discrimination, they must be able to lead evidence of a group disadvantage, not merely a personal disadvantage. "Subjective personal religious views" can only be protected if the employee can show that they have been directly discriminated against on the grounds of their religious views.
However, employers should note that although not required to do so, both the tribunal and the EAT held that, had there been discrimination, BA would not have been able to justify it as the uniform policy would not have amounted to a proportionate way of achieving a legitimate aim. It seems that although BA had conducted a careful analysis of the potentially discriminatory effect of their uniform policy on persons of different religions, they had not initially anticipated the question of whether Christians ought visibly be allowed to wear a cross. Subsequently, after Mrs Eweida had raised her complaint, BA amended its policy to allow a cross to be worn visibly.
In this case the tribunal was impressed by the way that BA had approached the challenge to its uniform policy and the conclusions to be drawn are that employers should:
- identify the aims of the policy and ensure that there is a legitimate reason for enforcing it;
- ensure that the policy is clear and transparent, with illustrative examples where possible;
- consult with employees and/or their representatives about the policy. This is likely to throw up any problem areas and will be especially important where the employer has a significant number of employees of a particular group (e.g. religion, race, sex) who could be affected by the policy; and
- take a consistent approach to enforcement of the policy.