Eweida v British Airways Plc

Indirect discrimination under Employment Equality (Religion or Belief) Regulations 2003, regulation 3(1)(b), requires an identifiable group sharing the claimant’s religion or belief to suffer a particular disadvantage from the provision, criterion or practice. The group may be small and may include persons to whom the requirement would potentially apply, but a disadvantage suffered by a single employee alone is insufficient.

A personal preference for a particular manifestation of faith, without evidence that others share the relevant disadvantage, does not establish the group-disadvantage limb. The expression barrier is only a convenient description of the statutory concept of disadvantage.

The appellant was a Christian check-in employee of British Airways. Its customer-facing uniform code prohibited visible neck adornments. She was sent home after refusing to conceal a small cross worn on a necklace. The policy was later amended to permit faith and charity symbols, and she returned to work.

An Employment Tribunal rejected claims of direct discrimination and harassment. It also rejected indirect religious discrimination because there was no evidence that Christians as a group were disadvantaged, although it made a contingent finding that group discrimination would not have been justified. The Employment Appeal Tribunal upheld the dismissal of the indirect-discrimination claim: [2008] UKEAT/0123/08/LA. The Court of Appeal considered whether regulation 3(1)(b) could be satisfied by disadvantage to the appellant alone and, if so, whether the dress code was justified.

Decision

The appeal was dismissed. Sedley LJ gave the principal judgment. Carnwath LJ agreed with the reasoning on indirect discrimination, and Smith LJ agreed with Sedley LJ.

1. Regulation 3(1)(b)(i) required proof that an identifiable section of the workforce sharing the claimant’s religion or belief was put, or would be put, at a particular disadvantage. This gave distinct work to the group-disadvantage limb and the separate requirement that the claimant herself share that disadvantage. The word would extended the group to persons to whom the requirement might be applied; it did not dispense with a group.

2. There was no evidential basis for inferring such a group. No other employee in a uniformed workforce of about 30,000 had made the request or complaint. The appellant described the visible cross as a personal choice, not a requirement of Christian doctrine. Her claim therefore failed at the group-disadvantage stage.

3. The Tribunal had not applied a wrong test by referring to a barrier. In this context, that word was merely a metaphor for the statutory disadvantage.

4. Article 9 of the European Convention did not assist. The cited Strasbourg and domestic authority showed that not every religiously motivated act is protected as a manifestation requiring accommodation, particularly where a person has accepted a role which does not accommodate the practice and can otherwise observe the faith without undue hardship.

5. On an alternative basis, Sedley LJ considered that, if a sole employee’s personal preference could establish indirect discrimination, the rule was a proportionate means of achieving British Airways’ legitimate aim. It had caused no known difficulty for years, the appellant’s request was considered, and she had been offered non-customer-facing work without loss of pay. Smith LJ agreed. Carnwath LJ would not have decided that narrower justification issue, since it had not been directly addressed by the Tribunal.

• Court of Appeal (Civil Division): Dismissed the appellant’s appeal: [2010] EWCA Civ 80.
• Employment Appeal Tribunal: Upheld the Employment Tribunal’s rejection of the indirect-discrimination claim: [2008] UKEAT/0123/08/LA.
• Employment Tribunal: Rejected the claims, including the indirect religious-discrimination claim.