Recent media attention has focused on the airline BMI’s ban on its flight crew wearing crucifixes or St. Christopher medals on flights to Saudi Arabia to avoid offending Muslim passengers.  Is such a practice lawful?

It would be interesting to know whether this is a case of direct discrimination against Christians – i.e., less favourable treatment of individuals because of the fact that they are Christian, or whether it is a potential case of indirect discrimination, i.e., does the company have a provision criterion or practice which it applies across the board to all employees, but which has a disparate effect on employees of a certain religion or religions, for example, are Jewish members of staff also prohibited from wearing Star of David pendants on flights to Saudi Arabia for the same reason?

The relevant legislation governing this matter is the Employment Equality (Religion or Belief) Regulations 2003, which came into force on 2 December 2003 (the “Equality Regulations”).  This gives employees the right not to be discriminated against on grounds of their religion or belief.  Importantly, manifestations of religion or belief are also protected.  If members of BMI flight crew were to rely on the Equality Regulations to bring an employment tribunal claim for indirect discrimination (under which this case would probably fall), the airline would need to prove that the policy was a proportionate means of achieving a legitimate business aim. 

In such a case an employer would be well advised to draw a distinction between employees choosing as a freedom of expression to wear symbols signifying their religious belief but where it is not actually a requirement of their religion for them to wear such a symbol (such as Jewish members of staff wearing star of David pendants) and external symbols of religious belief where the employee in question could or would be acting in breach of their faith’s requirements by not wearing the external symbol (for example Sikh men not wearing a turban or Jewish men not covering their heads with a kippah/cuppel). 

Employers should try to avoid applying across-the-board policies, for example, a no headwear policy for all staff, if what the company is really trying to achieve is to prevent members of staff from wearing baseball caps.  Such a uniform policy would prevent Sikh members of staff who wear turbans for religious reasons from doing so, and this is likely to constitute indirect discrimination.

Another example is the case of a female employee whose religion such as Islam or Judaism requires females to dress modestly.  A dress code which requires blouses to be tucked inside skirts may conflict with that requirement as it would accentuate the female employee’s body shape.  However if the individual was allowed to wear her blouse over the outside of her skirt, this may well be acceptable to her.

ACAS guidance on the specific issue of jewellery provides that some items of jewellery are culturally specific to certain religions, for example, Hindu men wear neck beads (Kanthe Mala) which are an indication of their faith.  Some religions are also designated by body markings such as a red spot on the forehead (Bindi Sindur) and best practice is for employers to consider allowing for such items of jewellery and body markings within their dress code policies. 

Previously employees could only challenge dress codes on the basis that they were discriminatory on the grounds of sex or race, but now employment tribunals are starting to see more cases being instituted under which dress codes are being challenged on the basis of being in breach of the Equality Regulations.  Employers will need to watch this space to see what approach the employment tribunals adopt to this difficult issue of balancing the employer’s right to protect its professional corporate image against the right of employees to freely express themselves and abide by the requirements of their religion in their choice of dress.

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