BA employee fails in cross-wearing discrimination case

A woman who claimed a British Airways rule against wearing neckjewellery discriminated against her Christian faith has lost hercase. Nadia Eweida failed in an appeal against an earlierEmployment Appeals Tribunal (EAT) ruling.

When British Airways changed its uniform in 2004 from ahigh-necked blouse to an open-necked blouse it began to operate apolicy banning neck adornment.

Eweida would sometimes wear a cross on a chain around her neckto work. That chain was not visible beneath the high-necked blousebut was visible when she wore the new blouse. After complying withrequests to conceal it a number of times, in September 2006 sherefused to do so and was sent home and did not work for somemonths.

She returned to work in February 2007 when BA changed itsuniform policy to allow the wearing of a religious or charitysymbol.

The Employment Equality (Religion or Belief) Regulations 2003outlaws policies which put people at a disadvantage at work becauseof their religion without there being a legitimate aim for thatpolicy.

"This policy prevents the open wearing of a Cross byChristians," said Eweeida's claim. "British Airways have appliedtheir policy to permit adherents of other faiths to openly wearreligious clothes that manifest their religious beliefs in theworkplace."

The Court of Appeal said that the case had become a famous one,and that some confusion had arisen about what it actuallyconcerned.

"In the light of the publicity which this case has received, itis necessary to say what the appeal is not about," said its ruling."It is not about whether BA had adopted an anti-Christian dresscode, nor whether members of other religions were more favourablytreated, nor whether BA had harassed the appellant because of herbeliefs."

"All of these allegations were rejected by an employmenttribunal which heard the evidence over 6 days in November 2007. Ina well-organised and carefully reasoned decision the tribunal alsoheld that no direct discrimination had occurred," it said.

That Tribunal hearing had heard evidence that Eweida's wearingof the cross was not the same as other workers wearingreligion-specific clothing.

"The tribunal heard evidence from a number of practisingChristians in addition to the claimant. None, including theclaimant, gave evidence that they considered visible display of thecross to be a requirement of the Christian faith; on the contrary,leaders of the Christian Fellowship had stated that, 'It is the wayof the cross, not the wearing of it, that should determine ourbehaviour'," the Court of Appeal quoted the Tribunal as havingsaid.

"The claimant's evidence was that she had never breached theuniform policy before 20 May 2006, and that the decision to wearthe cross visibly was a personal choice, not a requirement ofscripture or of the Christian religion," it said. "There was noevidence in this case that might support any suggestion that theprovision created a barrier for Christians, and ample evidence tothe contrary."

In his ruling Lord Justice Sedley said that the issue had been'conscientiously' dealt with by BA, which offered to move Eweida towork without contact with the public.

"In my judgment no tribunal could find that BA's response wassuch as to make the introduction or maintenance of the ruledisproportionate, either before or after the point of time at whichthe issue was raised by Ms Eweida. On the evidential basis nowadopted on her behalf, it was an entirely personal objection,neither arising from any doctrine of her faith nor interfering withher observance of it, and never raised by any other employee," hesaid.

"She had twice made her point between May and September 2006 notby seeking a revision of the code but by reporting for work inbreach of it. She had twice been warned; she had lodged a formalgrievance on 13 June; but without waiting for it to be resolved sheagain breached the code and on this occasion, 20 September 2006,was sent home," he said.

"I am bound to say that … I have considerable difficulty inseeing how [the Tribunal] could hold that a previouslyunobjectionable rule had somehow become disproportionate once theclaimant had raised the issue, even on the assumption that it was arule that disadvantaged Christians as a group within theworkforce," said the ruling. "Neither Ms Eweida nor any witness onher behalf suggested that the visible wearing of a cross was morethan a personal preference on her part. There was no suggestionthat her religious belief, however profound, called for it."

Lord Justice Sedley said that even if it were found to beindirectly discriminatory, the rule had a legitimate aim and didnot fall foul of the law.

"Everything in the tribunal's findings of fact shows the rule,both during the years when it operated without objection and whileit was being reconsidered on Ms Eweida's instigation, to have beena proportionate means of achieving a legitimate aim. The contraryis not in my view arguable," said the ruling.

, an employment lawspecialist with Pinsent Masons, the law firm behind OUT-LAW.COM,said that the case provides new guidance on the meaning of the word'persons' in the context of an indirect discrimination claim.

"An employer commits an act of indirect discrimination when itapplies a provision, criteria or practice which puts persons of aparticular religion at a substantial disadvantage to persons not ofthat religion," said Doherty. "In this judgment it was confirmedthat for a claim of indirect discrimination to succeed, more thanone person had to be subject to the disadvantage, therefore it wasnot enough that the claimant herself had allegedly been subject tothe disadvantage."