The Court of Appeal has ruled that British Airways uniform policy which prohibited employees from 'visibly' wearing jewellery did not indirectly discriminate against Christians. It held that a policy cannot be indirectly discriminatory where it only disadvantages a single individual's wish to manifest their faith in a personal way.
Under the Employment Equality (Religion or Belief) Regulations 2003, an employer indirectly discriminates against an employee if they apply a 'provision, criterion or practice' which although applied to all employees, put persons of the same religion or belief as that employee at a particular disadvantage. A 'provision, criterion or practice' can, as in this case, include dress codes. Therefore when devising or reviewing dress codes employers should consider whether the dress code would or could disadvantage employees of a particular religion.
However this ruling by the Court of Appeal confirms that the obligation on employers is limited to considering the impact of their policies on persons of a particular religion, i.e. that the policy conflicts with a religious requirement and so will impact upon a group of people who are followers of that religion. Employers therefore do not have to adapt their policies to allow employees to wear any item associated with their religion where this is simply the individual employee's personal choice.
In the case of Eweida v British Airways plc (BA) the Court of Appeal dismissed Miss Eweida's claim that BA's policy of not allowing her to visibly wear a cross over her uniform indirectly discriminated against her as a Christian.
Miss Eweida is a devout practising Christian who has worked part-time as a member of BA's check-in staff since 1999. As Miss Eweida's job is customer facing, she is required to wear a uniform. Up until 2004 BA's uniform included a high necked blouse, underneath which Miss Eweida wore a silver cross on a necklace. In 2004 BA introduced a new uniform which included provision for an open neck. However BA's uniform policy prohibited the wearing of any visible item of adornment (such as jewellery) around the neck. Only religious items which were a 'mandatory scriptural requirement' were permitted.
In 2006 Miss Eweida attended work on three occasions wearing the cross visibly. When, on the final occasion, Miss Eweida refused to conceal the cross, she was sent home. Miss Eweida rejected an offer of alternative work in a position which was not customer facing and therefore did not involve wearing a uniform.
Miss Eweida brought claims to the Employment Tribunal that BA's policy discriminated against her as a Christian. The Employment Tribunal rejected her claims, noting that despite having heard evidence from a number of practising Christians "none, including the Claimant, gave evidence that they considered visible display of the cross to be a requirement of the Christian faith". In fact Miss Eweida herself described it as a personal choice, rather than a religious requirement. Therefore her claims of direct and indirect religious discrimination failed.
Miss Eweida appealed to the Employment Appeal Tribunal who upheld the Employment Tribunal's decision (see Howes Percival Newsflash 25th November 2008).
Miss Eweida then appealed to the Court of Appeal to consider her indirect discrimination claim only.
The Court of Appeal rejected Miss Eweida's argument that 'a provision, criterion or practice' can constitute indirect religious discrimination even if it affects only one individuals personal manifestation of their religious belief. In its view, the Religion or Belief Regulations were clearly intended to address 'group' discrimination and that "some identifiable section of a work force, (even) a small one, must be shown to suffer a particular disadvantage which the Claimant (Miss Eweida) shares". In this case the disadvantage suffered by Miss Eweida was suffered by her alone. There was no evidence that anyone else was similarly disadvantaged or that it was anything other than an entirely personal objection by Miss Eweida, which did not arise from any doctrine of her faith nor interfered with her observance of it.
The Court of Appeal also held that Miss Eweida was not assisted in her claims by Article 9 of the European Convention on Human Rights (Freedom of thought, conscience, and religion) as the European Court of Human Rights had ruled that Article 9 did not protect every act motivated by religion or belief.
Finally, the Court held that had they found BA's uniform policy to be indirectly discriminatory, as the policy affected only one employee they would have ruled that BA could justify their policy as a proportionate means of achieving a legitimate aim. This contrasts with the finding of the Employment Tribunal who held that had BA's uniform policy been indirectly discriminatory, they would have been unable to justify it on the basis of 'brand uniformity'.