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.

Unite’s  second ballot has been required as the result of the High Court’s decision on 16 December 2009 to grant an injunction preventing Unite from proceeding with a 12-day cabin crew strike over the Christmas period on the grounds of its failure to comply with the statutory rules governing balloting members and notifying employers. Having read Mrs Justice Cox’s judgment, I can’t help but feel that some of the press commentary in its immediate aftermath was a little surprising. Taking a couple of examples from the day after the judgment, Seamus Milne in the Guardian lambasted it as “blatantly political”, whilst at the other end of the spectrum the Telegraph questioned whether Unite’s outrage was “synthetic” and asking whether its failure to appeal the judgment indicated that the court’s decision had let Unite off the hook.

Given the evidence before Cox J at the hearing, however, it is not surprising that she came to the conclusion that she did nor that there has been no appeal against her decision. In order to secure the necessary statutory protection against claims for inducing a breach of contract, when a trade union ballots members on strike action, it has to comply with certain statutory requirements. Entitlement to vote in the ballot must be given to “all the members of the trade union who it is reasonable at the time of the ballot for the union to believe will be induced by the union to take part… and to no others.” The union must notify the employer at least 7 days before the ballot of the numbers of those members who will be balloted. The figures must be as accurate as is reasonably practicable in the light of the information in the possession of the union but small accidental failures can be disregarded.

BA’s challenge to Unite’s procedures was based on the fact that Unite knew that approximately 1,000 of the 10,000-odd employees that it balloted had accepted voluntary redundancy and would not be employed by BA at the time of the strike. Unite tried to persuade the Court that it had done all it reasonably could to identify those employees but (partially as the result of BA’s alleged instransigence) had not been able to do so at the time of the ballot.  Although there were other factors that played their part, the key point for Cox J appears to have been the lack of effort by Unite to notify employees taking voluntary redundancy that they were ineligible to vote or to ask those employees if they were leaving before the strike. In the absence of such steps, Unite were unable to show that they complied with the requirements of the legislation.

It is easy to sympathise with the argument that the inclusion of the ineligible employees made no difference to the outcome of the ballot when approximately 92% of voters, on a turnout of around 80%, supported the ballot.  However, Unite would have also had to persuade the court that its inclusion of those employees in the ballot was “accidental” in order to receive the statutory protection in respect of the ballot itself, which it failed to do. Having been blocked by this technical requirement though, has anyone been surprised by Unite’s decision to hold a second ballot given the high level of support in the first? In addition, is there a valid argument that  our legislation should be flexible enough to allow procedural errors that genuinely could not have affected the outcome of a ballot to be disregarded?  Perhaps your preferred answer to that question might depend on which side of the business and political fence you sit…