Court of Appeal rejects appeal in Eweida v British Airways plc

The Court of Appeal’s recent judgment in the case of Eweida v British Airways plc  sheds further light on how employment tribunals should interpret issues relating to clothing, jewellery and appearance in the context of religious discrimination.  In taking her case to the Court of Appeal Ms Eweida was seeking to overturn previous decisions not to uphold her claims against BA for religious discrimination.

The background to the claim is that Ms Eweida was a devout practicing Christian, who had worked part-time on BA’s check-in desk since 1999. In 2004 BA changed its uniform from a high-necked blouse to a uniform that incorporated an open collar, but forbade the wearing of any jewellery around the neck. In 2006 Ms Eweida twice wore a small cross on a chain around her neck and, when challenged, removed it. The third time she wore the cross, she refused to remove it and was sent home. She remained at home on unpaid leave from 20 September 2006 until 3 February 2007 after BA changed its policy to allow the wearing of a faith or charity symbol. She is still employed by BA.

Ms Eweida issued various claims against BA alleging harassment and both direct and indirect discrimination on the grounds of her religion. These included a claim that not allowing her to wear the cross around her neck was indirectly discriminatory of her as a Christian because it was a “provision, criterion or practice” (“PCP”) which although it was applied equally to all BA staff, put persons of Ms Eweida’s religion or belief at a particular disadvantage. None of those claims were upheld either at the initial Employment Tribunal or at the Employment Appeal Tribunal.

The only ground of appeal pursued by Ms Eweida in the Court of Appeal was that the Employment Appeal Tribunal had been wrong to find that in order for her indirect discrimination claim to succeed, Ms Eweida was required to show that she was part of a group of people within the BA workforce who were disadvantaged because their religion or belief made it harder to comply with the PCP applied by BA. Ms Eweida’s argument was that it should be enough to show that she alone suffered that disadvantage on the grounds of her religion.

In refusing to uphold her appeal, the Court put significant weight on the tribunal’s findings that the detriment which Ms Eweida complained of was suffered by her alone and her complaint arose from a personal objection neither arising from any doctrine of faith, nor interfering with her observance of it and never raised by any other BA employee. The Court also held that there must be some element of disadvantage to a group (even a potentially small one) in order for there to be indirect discrimination.

The case provides useful guidance to employers on an issue which has been the subject of numerous cases in the tribunals since religious discrimination laws were introduced in 2003,  though there will no doubt be further litigation in relation to dresscodes and appearance in the context of employment.  Lord Justice Sedley was at pains to point out that this case was not about whether BA had adopted an anti-Christian dress code, treated other religions more favourably or harassed Ms Eweida because of her beliefs. It will be interesting to see if that is how the case is presented in the wider news media.

For those who want a little more detail, the Court of Appeal’s judgment is available at http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2010/80.html&query=eweida&method=boolean.