The former uniform policy of British Airways was that employees who wished to wear a visible religious item were only permitted to do so if the item was doctrinally mandatory, could not be concealed under the uniform and had been approved by management. This meant that the claimant was not permitted to wear a cross that was visible on her uniform. She alleged that this constituted direct and indirect discrimination and harassment on grounds of religion or belief, contrary to the Employment Equality (Religion or Belief) Regulations 2003, SI 2003/1660. The Employment Tribunal dismissed her claims.Footnote 6
The claimant's appeal focused solely upon the tribunal's finding that there had been no indirect discrimination. Before the Employment Appeal Tribunal, the claimant contended that the Employment Tribunal had erred in law in finding that the policy did not put Christians at a particular disadvantage. The claimant submitted that the tribunal had erred in finding that there was no evidence that there was a significant number of persons in addition to the claimant who had suffered a ‘particular disadvantage’. Even if relatively few people were prepared to go as far as she did in refusing to comply with the policy, there would certainly be some who would object on religious grounds to it, while choosing reluctantly to comply with it. It was submitted that a ‘particular disadvantage’ could be suffered even where the employee can and does comply with the provision. The EAT noted that, although it was doubtful whether the case was advanced on this basis before the tribunal, there was some merit in this argument. Elias J referred to R v Secretary of State, ex parte Williamson [2005] AC 246, noting that courts should not adopt an objective standard to determine whether or not something is a religious belief and that it is not necessary for a religious belief to be shared by others or to be ‘a mandatory requirement of an established religion’. For the purposes of indirect discrimination, the policy itself need not be incompatible with a specific religious belief, and disadvantage may only arise out of the way that the religion or belief is practised. However, simply showing that others would have a strong view that jewellery, or even crosses, should be worn would not suffice, since the claimant needed to show that those who shared the same religion or belief had suffered the same disproportionate impact. For Elias J, ‘the whole purpose of indirect discrimination is to deal with the problem of group discrimination’ and in this case the tribunal was plainly entitled to reach its conclusion that there was no evidence of group disadvantage. The appeal was dismissed.
Summary supplied by Russell Sandberg. A fuller version appeared in Law and Justice, and it is reproduced here with permission. For a critique of the Employment Appeal Tribunal decision, see L Vickers, ‘Indirect discrimination and individual belief: Eweida v British Airways plc’ on pp 000–000 of this issue.
