Eweida v British Airways

The religion or belief regulations state that employers cannot apply a provision, criterion or provision (PCP) if it puts people of a certain religion or belief at a particular disadvantage compared to others. In Eweida v British Airways (IDS 867), the Employment Appeal Tribunal (EAT) said that an employee has to provide actual evidence that the PCP disadvantaged a group sharing their religion or belief.

Basic facts

Nadia Eweida was a devout Christian for whom wearing the cross was an important symbol. As a member of the British Airways check-in staff, however, she was required to wear a uniform which was subject to a uniform policy. This prohibited staff from wearing anything visible over their uniform, unless it was a “mandatory” religious item such as the hijab or the turban.

When she insisted on wearing a small, silver cross (which she accepted was not mandatory for her religion) outside her uniform, Ms Eweida was sent home. She remained at home from September 2006 until February 2007, when BA altered its policy to allow staff to display a faith or charity symbol, such as the cross.

Ms Eweida brought a number of claims, including indirect discrimination, under the Employment Equality (Religion or Belief) Regulations 2003.

Tribunal decision

The tribunal dismissed her claims, saying although BA had applied a PCP to Ms Eweida – that personal jewellery should be hidden under her uniform - it did not put Christians as a group at a particular disadvantage compared to anyone else.

It then went on to consider the issue of justification (although it did not have to as the claim of indirect discrimination had failed). It said that although the uniform policy achieved the legitimate aim of brand uniformity, it was not a proportionate means of achieving that aim.

BA had not considered the potentially discriminatory impact of its policy until November 2006, after which it amended the policy without any apparent problems. Nor had it distinguished between a religious symbol and a piece of cosmetic jewellery.

Ms Eweida appealed and BA cross-appealed against the tribunal’s decision on justification.

EAT decision

The EAT agreed with the tribunal. It made clear that that the protection offered under the law to people holding a religious or philosophical belief is a broad one, which can be very personal and subjective.

But to prove indirect discrimination, the onus is on employees to show that a particular PCP put a particular group (in this case, Christians) at a disadvantage because of that religion or belief. The court stressed that the particular disadvantage relied upon should stem from the religious beliefs held by the claimant and that it is not sufficient that people of the same religion and belief are fortuitously affected by the provision.

As Ms Eweida had not provided any evidence that others shared her religious conviction about openly displaying a cross, she could not claim indirect discrimination even though she personally had suffered a particular disadvantage (of not being able to go to work and earn money).

It was not enough for her to claim that there was bound to be other Christians who felt the same way as her. She had to show that was the case in order to prove indirect discrimination.

The EAT said that to establish indirect discrimination, it must be possible to make “general statements which would be true about a religious group such that an employer ought reasonably to be able to appreciate that any particular provision may have a disparate adverse impact on the group”.

Comment

This case excited much press coverage at the time of Ms Eweida’s suspension. The controversy seems to have persuaded BA to look more closely at its uniform policy and BA does now allow the wearing of a small faith or charity symbol with its uniform. The case shows the importance of producing evidence in an indirect (or group) discrimination case of the adverse impact of an employer’s policy. As more religion or belief cases are heard by the higher courts we can expect to have clearer guidance about how the regulations will impact on the workplace.