Eweida v British Airways Plc EAT/0123/08

indirect discrimination | religion | wearing a cross

The Employment Appeal Tribunal (EAT) 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.

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 scriptoral 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. 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 EAT noted that for there to be indirect discrimination the disadvantage must be connected to the religion or belief of the claimant. Further, the fact that a person strongly believes that jewellery should be allowed to be worn openly does not make that belief a religious one. It was necessary for Miss Eweida to show that there was a relevant disparate impact suffered by those sharing the same religion or belief. Merely showing that others have a strong view that jewellery, or even crosses, should be worn was not enough.

The EAT held 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. It must be possible to make general statements about a religious group so that an employer would reasonably appreciate the potential for a disparate impact on the group by the provision in question. The onus is on the claimant to show group disadvantage. The EAT recognised that this means that someone holding subjective personal religious views is protected against only direct discrimination and not indirect discrimination. However, this is not an injustice as the purpose of the indirect discrimination provisions is to counter group disadvantage. 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. The tribunal had been entitled to reach the view that it did on the evidence that it had.

Case transcript of Eweida v British Airways Plc (Microsoft Word format, 100K) (on the EAT website)

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