Religious Discrimination

 3 December 2008

British Airways Decision Arrives:

Indirect religious discrimination requires a ‘disparate impact’ on a particular religious group.

In Eweida v British Airways plc, the Employment Appeal Tribunal (“EAT”) agreed that there was no evidence that Christians, as a group, were adversely affected by British Airways’ (“BA”) policy which prohibited the wearing of visible items of jewellery. For indirect discrimination to apply it is not sufficient for the claimant to suffer personally where others sharing the belief do not. The policy should place a particular disadvantage on a group of believers.

Background
Miss Eweida is a Christian who wanted to wear a plain, silver cross on a necklace while at work. Her employer, BA, warned her, repeatedly, that, under its uniform policy, which allowed employees to wear jewellery under the uniform, this was not permitted. The policy provided an exception in which religious items could be worn visibly if to do so was a “mandatory” religious requirement. On the third occasion of wearing the cross visibly and refusing to conceal it, Miss Eweida was sent home without pay. Miss Eweida then brought claims for direct and indirect religious discrimination.

Tribunal Decision
The Tribunal held that BA did not directly discriminate against Miss Eweida on religious grounds because it would have treated anyone wearing such an item, or wearing visible jewellery of any kind, in exactly the same way regardless of their religion. Miss Eweida was not treated less favourably, on grounds of her religion, than others in the same circumstances as herself. The Tribunal also dismissed the claim for indirect discrimination as the provision did not put Christians at a particular disadvantage compared to others. The wearing of a cross was not a religious requirement so there was no evidence to suggest that BA’s policy had created a “barrier” for Christians. As a religious group, Christians had not been placed at a particular disadvantage. Miss Eweida appealed to the Employment Appeal Tribunal (“EAT”) only on the ground of indirect discrimination.

EAT Decision
The EAT upheld the Tribunal’s decision to dismiss the claim for indirect discrimination. The starting point should be that persons of the same religion or belief as the Claimant should suffer the particular disadvantage, as opposed to those who do not hold that religion or belief, as a consequence of holding or practicing that religion or belief. It was not enough for Miss Eweida to submit that she had suffered personally as a result of her beliefs and that somewhere there are likely to be others who share her beliefs and would be similarly disadvantaged. That possibility is not enough to establish the necessary degree of group disadvantage or “disparate impact”. There should be evidence of group disadvantage and it is for the claimant to prove it. The EAT also concluded that if a person holds “subjective personal religious views”, that person is protected only by direct and not indirect discrimination.

Comment
In its conclusion, the EAT found 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 be able to appreciate that any particular provision may have a disparate adverse impact on the group." Clearly, those religious practices which are a mandatory religious requirement should not be restricted by an employer’s policy. In addition, an employer should be able to look at a religion and know whether its policy will put those religious believers at a particular group disadvantage. If this is not the case, indirect discrimination will not have occurred. The problem is that it can be difficult to identify whether a practice is a religious requirement, whether it is a widely adopted practice but not necessarily obligatory or, last, whether it is a subjective, personal belief which may also be shared by a handful of others. These are, essentially, issues of fact which will be decided according to the evidence in each individual case. On this basis, it is likely that there will be further Tribunal and Court action on the issue in the months and years to come. Employers are, therefore, advised to proceed with caution and to consider the potential impact on different groups before implementing blanket bans and policies.