Christianity – Detriment – Religious discrimination – Jewellery

Eweida v British Airways Plc: CA (Civ Div) (Lords Justice Sedley, Carnwath, Lady Justice Smith): 12 February 2010

The appellant employee (E) appealed against a decision ([2008] UKEAT/0123/08/LA) of the Employment Appeal Tribunal (EAT) upholding the decision of the employment tribunal (ET) that the respondent employer (B) had not subjected her to indirect discrimination.

E, who was a devout practising Christian, had worked for B in a customer-facing position and was required to wear a uniform. B operated a uniform policy which prohibited the wearing of any visible item of adornment around the neck. E was sent home for insisting on wearing a plain silver cross over her uniform. She remained at home for several months and initiated grievance procedures. B subsequently amended its policy so as to permit staff to display a faith or charity symbol with the uniform and E returned to work. E’s claim for indirect religious discrimination was rejected by the ET, which held that the unamended policy did not put Christians at a particular disadvantage when compared with other persons. Her appeal against that decision was dismissed. E contended that the ET erred in law in looking for evidence of any material group within B’s workforce and the EAT erred in law in upholding that decision. E contended that on a correct reading of regulation 3(1)(b)(i) of the Employment Equality (Religion or Belief) Regulations 2003, ‘persons’ included a single individual and, even if she alone was disadvantaged by the dress code, the test of indirect discrimination was met.

Held: (1) If E’s contention, that no evidence of group disadvantage was ever necessary, was correct the word ‘persons’ could simply be read as if it were ‘any person’. However, in that event regulation 3(1)(b)(i) could have been omitted entirely without changing the meaning of the regulation. There was no reason to depart from the natural meaning of regulation 3, which was that some identifiable section of a workforce, quite possibly a small one, must be shown to suffer a particular disadvantage which E shared. That approach gave value to regulations 3(1)(b)(i) and 3(1)(b)(ii). That could be compared with section 4A of the Disability Discrimination Act 1995, where parliament provided for indirect discrimination against a single individual. Further, that was not how E had put her claim before the ET. She pursued the claim on the basis that B was indirectly discriminating against all Christians in its uniformed workforce and not just her. The detriment which E complained of was suffered by her alone; neither evidentially nor inferentially was anyone else similarly disadvantaged.

Appeal dismissed.

Karon Monaghan QC, Mathew Purchase (instructed by Liberty) for the appellant; Ingrid Simler QC (instructed by Baker & McKenzie) for the ­respondent.