Eweida v British Airways plc [2010] EWCA Civ 80 CA

religious discrimination | indirect discrimination | wearing a cross

The Court of Appeal has upheld an employment tribunal finding that a Christian employee, who was sent home when she insisted on wearing a cross visibly, in breach of the employer's uniform policy, did not suffer indirect discrimination. The Court rejected the employee's argument that the test of indirect discrimination was met, even if she was alone in being disadvantaged by the policy.

British Airways plc (BA) had a uniform policy that allowed jewellery or religious items to be visible only if wearing the item was a mandatory scriptural requirement and it could not be concealed. Miss Eweida, a devout practising Christian, wished to wear a plain silver cross, which would be visible. She accepted that it was not a scriptural requirement or an article of her faith to wear the cross this way, but a personal expression of her faith. When she insisted on wearing the cross visibly, she was sent home. She claimed direct and indirect discrimination, and harassment contrary to the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660). The employment tribunal rejected her claims. With regard to indirect discrimination, the tribunal did not accept that the provision (that items should be concealed by the uniform) put Christians at a particular disadvantage or created a barrier, compared to others. Miss Eweida appealed against the finding on indirect discrimination. Although the issue of justification did not arise, because the tribunal did not find indirect discrimination, it held that, had there been indirect discrimination, it would have found that the rule was not a proportionate means of achieving a legitimate aim. BA cross-appealed.

The Employment Appeal Tribunal (EAT) held in Eweida v British Airways plc [2009] IRLR 78 EAT that the issue was how Miss Eweida could show that “persons of the same religion or belief” were put at a particular disadvantage (if there was such a disadvantage) as required by reg.3(1)(b)(i) of the 2003 Regulations. For most forms of discrimination, claimants can show that the discrimination is unlawful by establishing group disadvantage. However, it is often harder to make generalised statements in relation to religion or belief. Miss Eweida argued that there was no evidence to suggest that she was alone in holding her views; wearing a cross is a widely adopted practice in Christianity. BA argued that the tribunal had been right to find that its policy acted as a barrier only to Miss Eweida and that there was no evidence that other Christians felt disadvantaged because they could not openly wear a cross. The EAT agreed. Indirect discrimination concerned group discrimination. Persons of the same religion or belief as Miss Eweida must suffer the particular disadvantage as a consequence of holding or practising that religion or belief, as distinct from those who do not hold the belief. The EAT held that the employment tribunal had been right to find that there was no evidence of group disadvantage. Therefore the appeal was dismissed. The EAT also dismissed BA's cross-appeal.

Miss Eweida appealed to the Court of Appeal. She argued that the employment tribunal (and the EAT by agreeing with the tribunal) had been wrong to look for evidence of a material group within BA’s workforce. She argued that the word “persons” in reg.3(1)(b)(i) of the 2003 Regulations includes a single individual, so that, even if she was alone in being disadvantaged by the dress code, the test of indirect discrimination was met. The Court of Appeal rejected this argument. It held that, if it were the case that no evidence of group disadvantage was necessary, “persons” would be read as “any person”, in which case this provision would be unnecessary. Nor did the Equal Treatment Framework Directive (2000/78/EC), which the 2003 Regulations were introduced to implement, intend to make solitary disadvantage sufficient. Under the Directive, indirect discrimination occurs “where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief … at a particular disadvantage compared with other persons”. The Court said that solitary disadvantage conflicted with the use of the pleural “persons”.

Further, use of the conditional “would put persons” (at a particular disadvantage) in reg.3(1)(b)(i) of the Regulations, and in the Directive, did not require the tribunal to aggregate Miss Eweida with a hypothetical peer group suffering the same disadvantage. It merely included in the disadvantaged group not only employees to whom the condition had been applied but also potential employees to whom it could apply. As the tribunal found that Miss Eweida was the sole sufferer of the detriment of which she complained, she failed to satisfy the test for indirect discrimination. Her appeal was dismissed.

On the matter of justification, the Court of Appeal held that, in the light of Miss Eweida’s argument in favour of her indirect discrimination claim, namely disadvantage to a lone person as a result of her wish to demonstrate her faith in a particular way, the tribunal findings showed that the rule in the uniform policy was a proportionate means of achieving a legitimate aim. Therefore, even if her appeal on indirect discrimination had been successful, it would have failed on the point of justification.

Case transcript of Eweida v British Airways plc (on the BAILII website)

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