Employment Update: Religious discrimination

03 December 2008

Employment Group

Refusal to let employee wear cross openly was not religious discrimination.

In Eweida v British Airways the EAT has upheld the tribunal decision in this well-publicised case and confirmed some useful points of principle in relation to unlawful discrimination on religious grounds.

BA had a uniform policy which meant that a religious item could only be worn visibly outside the uniform if wearing the item was a mandatory scriptural requirement – examples were given of the hijab, the turban, and the skull cap worn by some Muslims, Sikhs, and Jews respectively.

The claimant argued that her cross fell into this category. The EAT confirmed that the tribunal was right to disagree.

For religious discrimination to be established, there must be evidence of ‘group disadvantage’. It was not enough for the claimant to say that she felt disadvantaged or even that another employee might feel similarly disadvantaged. There must be evidence that a sufficient number of persons of the same religion or belief would suffer the disadvantage and that was not so in this case.

Points to note –

  • Employers can take comfort from the fact that although ‘religion or belief’ is very broadly defined in the relevant regulations, the BA case confirms that it is ‘group discrimination’ that is being outlawed. It is not enough for a claimant, as in this case, to say that she personally suffered a disadvantage.

  • On dress codes generally, the tribunal and the EAT was content that BA’s uniform policy fulfilled a legitimate aim – brand uniformity which provided a consistent, professional and reassuring image. However, the tribunal warned that, in a case where group discrimination could be proved, a ‘blanket’ ban on wearing jewellery (which might or might not have religious significance) over uniform would probably be seen as disproportionate. BA has since changed its uniform policy to allow staff to display a ‘faith or charity symbol’ on their uniform.