Employment Flash - 18th February 2010

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Applying Regulation 3(1)(b) Employment Equality (Religion or Belief) Regulations 2003, SI 2003/1660...

Eweida v British Airways Plc [2010] EWCA Civ 80

The facts will be familiar to most: E a devout practising Christian worked for BA in a customer facing job; in 2004 BA changed the style of its uniform which provided for an open neck but policy prohibited the wearing of jewellery around the neck; on at least 3 occasions between May 2006 and September 2006 E came to work with her cross visible; when she refused on 20/9/06 to conceal the cross she was sent home; BA introduced an amended policy on 1/2/07 which permitted the wearing of a faith or charity symbol and E returned to work on 3/2/07. The decision by E to wear the cross visibly was a personal choice, not a requirement of scripture or the Christian religion. The appeal by E to the Court of Appeal was in relation to indirect discrimination and contingently BA cross-appealed on the issue of justification; E's appeal was on the basis of disadvantage to a single person arising out of her wish to evince her faith in a particular way (an approach not advanced before the ET).

E contended that "persons" in 3(1)(b)(i) "would put persons... at a particular disadvantage" includes a single individual so that even if E alone was disadvantaged by the policy she was indirectly discriminated against; on that reading of the regulation no group disadvantage would ever be necessary. E further contended that "would put" requires the aggregation of E with what may be an entirely hypothetical peer-group to whom the same disadvantage is attributable, the effect being that E as a solitary individual would have been indirectly discriminated against.

The Court of Appeal declined to read the regulation in that way, accepting the natural meaning of the language used so that "persons" requires a group disadvantage to be shown and "would" includes in the disadvantaged group not only employees to whom the condition has actually been applied but to those to whom it potentially applies.

The Court identified 3 views that could be taken: (a) the narrowest view would require evidence (in a case like this) that other uniformed BA staff would have wished to wear a cross in a visible place but were deterred from doing so by the policy; (b) the intermediate view would assume, even if it were not the case, that the employees include others who shared the material religion or belief and would be similarly disadvantaged by the policy; (c) the wide view, would require evidence to show that there were others in society who shared the material religion or belief and would suffer a disadvantage were they to be BA employees. The narrow view does exclude the solitary individual from protection against indirect discrimination; the wide view places unrealistic burdens on the employer; the intermediate view in practice risks becoming merged with the wide view. The Court did not have to resolve the issue as E's evidence failed all 3 tests.

The Court specifically endorsed the EAT's conclusion that: "...in order for indirect discrimination to be established, it must be possible to make some 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." ([2009] ICR 303, para 60).

Although E's new approach to indirect discrimination meant that the ET's findings regarding justification might no longer be apposite (as they were made in the context of the claim being put on the group basis) Sedley and Smith LJJ still found that the BA policy had been a proportionate means of achieving a legitimate aim, Carnwath LJ preferred not to venture a view as the ET had not directly addressed it. On the the issue of justification as the ET and EAT had dealt with it Sedley and Smith LJJ did not see how they could have found the policy dispropotionate on the evidence before them, whilst Carnwath LJ would not have felt it right to interfere with the conclusions of the expert ET and EAT even if he had shared Sedley and Smith LJJ's concerns.