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BA employee fails in cross-wearing discrimination case

A woman who claimed a British Airways rule against wearing neck jewellery discriminated against her Christian faith has lost her case. Nadia Eweida failed in an appeal against an earlier Employment Appeals Tribunal (EAT) ruling.16 Feb 2010

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

Eweida would sometimes wear a cross on a chain around her neck to work. That chain was not visible beneath the high-necked blouse but was visible when she wore the new blouse. After complying with requests to conceal it a number of times, in September 2006 she refused to do so and was sent home and did not work for some months.

She returned to work in February 2007 when BA changed its uniform policy to allow the wearing of a religious or charity symbol.

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

"This policy prevents the open wearing of a Cross by Christians," said Eweeida's claim. "British Airways have applied their policy to permit adherents of other faiths to openly wear religious clothes that manifest their religious beliefs in the workplace."

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

"In the light of the publicity which this case has received, it is necessary to say what the appeal is not about," said its ruling. "It is not about whether BA had adopted an anti-Christian dress code, nor whether members of other religions were more favourably treated, nor whether BA had harassed the appellant because of her beliefs."

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

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

"The tribunal heard evidence from a number of practising Christians in addition to the claimant. None, including the claimant, gave evidence that they considered visible display of the cross to be a requirement of the Christian faith; on the contrary, leaders of the Christian Fellowship had stated that, 'It is the way of the cross, not the wearing of it, that should determine our behaviour'," the Court of Appeal quoted the Tribunal as having said.

"The claimant's evidence was that she had never breached the uniform policy before 20 May 2006, and that the decision to wear the cross visibly was a personal choice, not a requirement of scripture or of the Christian religion," it said. "There was no evidence in this case that might support any suggestion that the provision created a barrier for Christians, and ample evidence to the contrary."

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

"In my judgment no tribunal could find that BA's response was such as to make the introduction or maintenance of the rule disproportionate, either before or after the point of time at which the issue was raised by Ms Eweida. On the evidential basis now adopted on her behalf, it was an entirely personal objection, neither arising from any doctrine of her faith nor interfering with her observance of it, and never raised by any other employee," he said.

"She had twice made her point between May and September 2006 not by seeking a revision of the code but by reporting for work in breach of it. She had twice been warned; she had lodged a formal grievance on 13 June; but without waiting for it to be resolved she again 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 in seeing how [the Tribunal] could hold that a previously unobjectionable rule had somehow become disproportionate once the claimant had raised the issue, even on the assumption that it was a rule that disadvantaged Christians as a group within the workforce," said the ruling. "Neither Ms Eweida nor any witness on her behalf suggested that the visible wearing of a cross was more than a personal preference on her part. There was no suggestion that her religious belief, however profound, called for it."

Lord Justice Sedley said that even if it were found to be indirectly discriminatory, the rule had a legitimate aim and did not 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 while it was being reconsidered on Ms Eweida's instigation, to have been a proportionate means of achieving a legitimate aim. The contrary is not in my view arguable," said the ruling.

Ben Doherty, an employment law specialist 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 it applies a provision, criteria or practice which puts persons of a particular religion at a substantial disadvantage to persons not of that religion," said Doherty. "In this judgment it was confirmed that for a claim of indirect discrimination to succeed, more than one person had to be subject to the disadvantage, therefore it was not enough that the claimant herself had allegedly been subject to the disadvantage."

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