Court of Appeal Decision in Eweida v British Airways

A British Airways check-in worker, Nadia Eweida, who refused to hide her cross necklace at work, lost her case against the airline in the Court of Appeal on 12th February 2010. She is now considering taking her case to the Supreme Court.

The Court of Appeal upheld the 2008 judgment of an employment tribunal which found that banning the worker from wearing a cross was not discriminatory because Christians “generally” do not consider wearing a cross as a requirement of their religion. The Court found in favour of British Airways that it had not indirectly discriminated on the grounds of religion or belief.

The Court had to decide whether a policy by British Airways that employees could not wear visible jewellery (unless it was a mandatory religious item that could not be concealed and had been permitted by management) constituted indirect discrimination. The Claimant was a Christian employee who claimed that as the policy prohibited her from wearing a small visible cross, she was discriminated against on the grounds of her religion or belief. The Court found that as the Claimant alone was disadvantaged by the policy, it did not amount to indirect discrimination. For a policy to amount to indirect discrimination, there had to be some evidence of an identifiable group within a workforce being placed at a disadvantage. In this case, the Claimant was unable to adduce evidence of either a real or hypothetical group and her claim therefore failed. The Court was not required to consider whether the policy was justified, but indicated that if the point had been considered it would have found the dress policy a proportionate means of achieving a legitimate aim. This was on the basis that the claim by Ms Eweida was an entirely personal objection. The Court concluded that in these circumstances, sometimes the only fair solution for enforcement may be a blanket ban.
British Airways has since changed its uniform policy to allow for the open wearing of all religious symbols, including crosses. Ms Eweida had claimed that the company’s old policy amounted to religious discrimination and was seeking compensation and lost wages for the time that she was kept off her job.

Liberty, the human rights group, said that the judgment is “disappointing” in that it will do little to build public confidence in equality laws protecting everyone.

According to Cameron McKenna, this robust judgment gives some comfort to employers that discrimination laws do not necessarily require them to make allowances for each individual’s personal preference when introducing a workforce-wide policy. However, it does not amount to a licence to disregard the effects of a policy on a solitary individual. It may be relatively simple to aggregate a single employee with a real or hypothetical group of other employees to gauge adverse impact. When formulating and drafting policies employers should therefore still be mindful of the possible effects on an increasingly diverse workforce.

Source: Cameron McKenna, 15th February 2010, BBC News, 15th February 2010 and Christian Post, 13th February 2010