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The Court of Appeal has today handed down judgment in the highly-publicised case of Eweida v British Airways ("BA"), concerning a BA employee who was prevented by the uniform policy from wearing a visible Christian cross at work. The Court of Appeal held that there was no indirect discrimination on grounds of religion or belief in these circumstances. In order to establish indirect discrimination, there must be some identifiable section of the workforce who suffer a particular disadvantage, which the claimant shares, as a result of the application of a provision, criterion or practice. It is not sufficient that the individual claimant suffers such a disadvantage due to her particular beliefs.

Eweida v British Airways Plc

Miss Eweida is a practising Christian. She works for British Airways (“BA”) as a member of check-in staff and is required to wear a uniform. From 2004 until 2007 BA’s uniform policy prohibited the wearing of visible items of jewellery. Between 20 May and 20 September 2006, Ms Eweida attended work on a number of occasions wearing a visible silver cross on a necklace. When she refused to conceal the cross, she was sent home. She remained at home, unpaid, from 20 September until February 2007, when the uniform policy was amended allowing staff to display a faith or charity symbol. She then returned to work and remains employed by BA. Ms Eweida brought a number of claims against BA including claims under the Employment Equality (Religion or Belief) Regulations 2003 of direct and indirect discrimination and harassment.

The tribunal dismissed Ms Eweida’s claims. It held that there was no direct discrimination. Ms Eweida had not been treated less favourably than BA would have treated any other person with a faith, or no faith, displaying jewellery over their uniform. The tribunal also held that there had been no harassment. There was no evidence that BA had engaged in unwanted conduct. It had simply sought to enforce its contractual uniform policy. Further there was no evidence that BA’s treatment of Ms Eweida was on the grounds of her religion. In relation to the claim of indirect discrimination, the tribunal found that BA had applied a provision, criterion or practice to Ms Eweida. This was the requirement that any personal jewellery should be concealed by a uniform. However, the tribunal said that this did not put Christians at a particular disadvantage compared with other persons. Therefore, this claim also failed.

Ms Eweida appealed the tribunal's finding on indirect discrimination. The EAT upheld the tribunal’s decision. It said that the whole purpose of indirect discrimination is to deal with the problem of group discrimination. The starting point is that persons of the same religion or belief as the claimant should suffer a particular disadvantage, distinct from those that do not hold that religion or belief, as a consequence of holding that religion or belief. Ms Eweida had not provided any evidence that others shared her religious conviction about openly displaying a cross and it was not enough for Ms Eweida to identify a disadvantage which she personally suffered. It must be possible to make some general statements which would be true about a religious group such that an employer ought reasonably to appreciate that a particular provision may have a disparate impact on the group.

On appeal to the Court of Appeal, the only remaining issue was whether BA had indirectly discriminated against Ms Eweida on grounds of religion or belief. The Court of Appeal held that there was no indirect discrimination. In order to establish indirect discrimination, there must be some identifiable section of a workforce (although that might be a small section) who suffer a particular disadvantage, which the claimant shares, as a result of the application of a provision, criterion or practice. It is not sufficient that the claimant suffers such a disadvantage, or that others in society might suffer such a disadvantage. Ms Eweida's objection to the dress code was an entirely personal objection, not arising from any requirement of her faith nor interfering with her observance of it, and never raised by any other employee.

In any event, even if Ms Eweida had been able to establish indirect discrimination on the basis of disadvantage to a single individual, Sedley LJ said that BA's dress code would have been justified as a proportionate means of achieving a legitimate aim.

Implications

The key principle established in this case will have most application to cases of indirect discrimination on grounds of religion or belief. It should give some comfort to employers that not every manifestation or a religious or other belief will be protected; the more idiosyncratic or personal the belief, the less likely the employee will be to be able to bring an indirect discrimination claim.

Cases of indirect discrimination in this area will always turn on their specific facts, and employers must still take care to ensure that dress codes do not negatively impact on members of a particular faith group. However, the key consideration is whether the dress code disadvantages a group of people holding a particular faith. A dress code will not be indirectly discriminatory if it is only to the disadvantage of someone holding a subjective personal religious view (or other belief). Where a dress code or other policy or practice does disadvantage a group, the employer will have to consider whether the dress code is justified i.e. whether there is a genuine and important reason for its policy and whether there are any less discriminatory alternatives which could reasonably be implemented.

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