The Employment Appeal Tribunal has held that British Airways' policy forbidding items of jewellery (such as a silver cross) from being worn "visibly" outside the uniform did not indirectly discriminate against Christians.
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 puts persons of the employees faith at a particular disadvantage. This could include a dress code and therefore employers need to be mindful of different religions when devising such policies.
However, this case suggests that employees have to show that their religion obliges them to wear the item in question and that it is not just a matter of personal choice. Employers therefore do not have to adapt their policies to allow employees to wear any item associated with their religion.
In the much publicised case of Eweida v British Airways plc, the Employment Tribunal and now the Employment Appeal Tribunal (EAT) considered the claim by Ms Eweida that BA's policy of not allowing her to visibly wear a cross indirectly discriminated against her as a Christian.
Ms Eweida is a devout practising Christian who worked as a member of BA's check-in staff. BA's uniform policy permitted an employee to wear any item they wished under the uniform, but only religious items which were a "mandatory scriptural requirement" (such as a turban) were permitted to be worn visibly.
Ms Eweida insisted on wearing a plain silver cross in a visible manner and as a result was sent home. She rejected offers of alternative work from BA which did not involve wearing a uniform.
The Employment Appeal Tribunal held that this policy was not indirectly discriminatory because;-
- There was no obligation or requirement on Ms Eweida as a Christian to wear a cross and she accepted it was simply a "personal expression of her faith".
- There was no evidence that Christians as a group would suffer any disadvantage for not being able to openly wear a cross. In the EAT's viewthe purpose of indirect discrimination is to address the problem of "group discrimination".
However, the EAT did go on to hold that if BA's policy had been indirectly discriminatory, they could not have justified it on the basis of "brand uniformity".