It has been established law that it is unlawful to discriminate against individuals on the ground of their religion or beliefs since December 2003 when the Employment Equality (Religion or Belief) Regulations 2003 came into force.  However, the issue of religion and belief in the workplace is receiving an increasing amount of attention in the press in recent months due to a number of high profile and controversial cases coming through the courts. 

The case of Eweida v British Airways [2010] EWCA Civ 80 is one of the most publicised cases on the topic and its most recent judgement – from the Court of Appeal – was delivered on 12 February 2010.  The case is important because it decides what degree of protection is available to employees who have religious beliefs or practices that are not necessarily required by their faith or shared by other followers of that faith. 

1. Background facts

Nadia Eweida, a devout Christian, worked as a check-in official for British Airways (BA).  BA had a uniform policy which provided that jewellery may only be worn if it is not visible.  Items deemed to be a mandatory religious requirement which could not be concealed (e.g. the Jewish skull cap, Sikh iron bangle, Muslim headscarf) were permitted.  Ms Eweida wore a small silver cross around her neck and refused to conceal it under her uniform as required by her managers and BA’s policy.  She was therefore sent home without pay and subsequently brought a number of claims against BA, including for direct and indirect discrimination on grounds of religious belief.

2. Decisions

Employment tribunal and Employment Appeal Tribunal

The Employment Tribunal (ET) dismissed Ms Eweida’s claim for direct discrimination on the basis that the reason for her treatment (being sent home) was not her religious belief, but her refusal to comply with her employer’s policy and instructions. 

In relation to her indirect discrimination claim, both the ET and the Employment Appeal Tribunal (EAT) held that although BA’s policy did amount to a provision, criterion or practice (PCP) that applies to the workforce as a whole, it was not a PCP that put Christians at a particular disadvantage compared to others.  It did not, therefore, constitute indirect discrimination on grounds of religion.  It is not a requirement of the Christian faith to wear a cross and, although Ms Eweida’s decision to wear one was motivated by her faith, that was her own personal decision (she herself described wearing the cross as a personal choice rather than a religious requirement).  Given this conclusion, the ET and EAT did not have to go on to consider whether BA’s policy was a proportionate means of achieving a legitimate aim (i.e. the next step of the test for considering indirect discrimination claims).  However, the ET and EAT went on to state that if they did have to consider the proportionality point, they would have concluded that BA’s policy of a blanket ban on jewellery went too far and was not justified. 

Court of Appeal

Ms Eweida, backed by the human rights group Liberty, appealed to the Court of Appeal (CoA) and argued that she was entitled to be protected by the indirect discrimination legislation even if she was the only one who held her particular religious belief in wearing the cross and that there was no need for her to show that BA’s policy place a particular “group” at a disadvantage.

The CoA dismissed Ms Eweida’s appeal and agreed with the ET and EAT that it is necessary to show that an identifiable group of people are – actually or potentially – disadvantaged by a PCP in order to establish indirect discrimination.  The CoA held that it must be possible to make some general statements which would be true about a religious group so that it would be reasonable to expect an employer to appreciate that a particular PCP may have a disparate adverse impact on that group.

The CoA – like the ET and EAT – also went on to consider whether BA’s policy could be justified if indirect discrimination had been established.  The CoA held that BA’s policy could be justified, stating that it is not unthinkable that a blanket ban may sometimes be the only fair solution in circumstances of conflict between an employer’s PCP and the beliefs of certain employees. 

Is this the last word?

It is understood that Ms Eweida is currently seeking permission to appeal to the Supreme Court, and if she is successful the case is likely to hit the press again in due course. 

3. Top tips

A few practical top tips to take away from the case and this topic generally include the following:

  • Ensure your organisation has an up-to-date Equal Opportunities policy in place and provide training on the policy to members of management (particularly those involved in implementing company policies and procedures); 
  • If your organisation has a uniform policy, consider carefully whether the rules within it are necessary (and if so, why), whether they are likely to disadvantage people of a certain religion, religious or philosophical belief and whether they go too far; and 
  • Document the employer’s reasoning for the rules in question (i.e. why are they necessary and why is it felt that they are a proportionate measure).

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