Eweida Case on Wearing a Cross at Work Is Not a Defeat For Christianity

Hannah Vertigen, one of the employment department practice development lawyers at Lewis Silkin, believes the “judgment is the right one” in Eweida. She explains what the implications would have been if Ms Eweida had won: “If the case had gone the other way, employers would have had to accommodate the personal and individual beliefs of each of their employees when drawing up employment policies. This would be incredibly difficult.”

In essence, in determining whether BA’s uniform policy was indirectly discriminatory, the Court of Appeal had to decide whether the use of the word ‘persons’ in the Employment Equality (Religion or Belief) Regulations 2003, SI 2003/1660, was satisfied by Ms Eweida as an individual. And, if she alone could constitute a group of persons of the same religion or belief, was that group potentially at a disadvantage because of British Airways’ uniform policy between 2004 and 2007? The uniform had an open neck and employees were prohibited from wearing any kind of visible adornment there. Ms Eweida stayed at home, unpaid, for five months over the dispute. She was the only one of BA’s 30,000 employees subject to the uniform rule to complain.

The Court of Appeal decided ‘persons’ could not mean a single individual and so Ms Eweida lost her appeal. However, Liberty is taking the case with her and it is widely expected there will be an appeal to the Supreme Court. As it happens the airline changed its policy from February 2007 allowing a faith or charity symbol to be worn visibly, and Ms Eweida has been back at work since then.

Further judgments may provide more clarification. “Would two people be enough?” asks Vertigen, about the definition of the word ‘persons’. “Well possibly,” she replies. And if several people complained about a feature of the dress code that could mean the employer might need to act, she says: “If you had a lot of people complaining that would suggest that an employer ought to be looking at the issue.”

The practical advice for employers is to be thoughtful in their approach to these issues. Vertigen says: “Employers will want to think very carefully about their dress codes. What is the reason for the requirement? Is it really necessary? Are there sensible reasons for a particular requirement ... for example, health and safety reasons? Where you have a policy that touches religion or belief, employers have to be thoughtful and sensitive about it.”

Unwary employers have to be careful not to offend one group of workers while trying to placate another group with this kind of sensitive issue. Vertigen says: “If they are thinking of changing a dress code to cater for a group’s religious beliefs they are going to have to be very careful about the ramifications of that in the wider workforce.”

Ms Eweida initially brought proceedings for direct and indirect religious discrimination and harassment to an employment tribunal where she lost on all counts. But the tribunal added if there had been indirect discrimination it would have been illegal. She appealed solely on the indirect discrimination point whilst BA appealed the tribunal’s finding on justification. The Employment Appeal Tribunal upheld the original tribunal’s finding and Ms Eweida appealed to the Court of Appeal whose decision rejecting the appeal was handed down on 12 February 2010.

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