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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Eweida v British Airways Plc [2008] UKEAT 0123_08_2011 (20 November 2008) URL: https://www.bailii.org/uk/cases/UKEAT/2008/0123_08_2011.html Cite as: [2009] IRLR 78, [2008] UKEAT 123_8_2011, [2009] ICR 303, [2008] UKEAT 0123_08_2011 |
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At the Tribunal | |
On 14/15 October 2008 | |
Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
MR B BEYNON
SIR ALISTAIR GRAHAM KBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MS SARAH MOORE (of Counsel) Instructed by: Messrs Ormerods Solicitors Green Dragon House 64-70 High Street CROYDON CR0 9XN |
For the Respondent | MS INGRID SIMLER (One of Her Majesty's Counsel) Instructed by: Messrs Baker & McKenzie LLP 100 New Bridge Street LONDON EC4V 6JA |
SUMMARY
RELIGION OR BELIEF DISCRIMINATION
The claimant was a Christian who objected to BA's policy of requiring jewellery to be worn concealed by the uniform. There were exceptions for those whose religions required them to wear items that could not be so concealed. She brought claims of direct and indirect discrimination on grounds of religious belief, as well as harassment discrimination. All these claims failed. She appealed against the finding of indirect discrimination only. The Employment Tribunal had held that there was no such discrimination because there was no evidence that a group of Christians were put at a particular religious disadvantage when compared with non-Christians. The EAT dismissed the appeal and held that this was a cogent and justified conclusion displaying no error of law.
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
The relevant law.
Discrimination on grounds of religion or belief
"(1) For the purposes of these Regulations, a person ("A") discriminates against another person ("B)" if – ….
(b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same religion or belief as B, but -
(i) which puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons, and
(ii) which puts B at that disadvantage,
and A cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim.
The Tribunal's findings on indirect discrimination.
"That personal jewellery or items (including any item worn for religious reasons) should be concealed by the uniform unless otherwise expressly permitted by BA."
"We turn to the question of whether the provision, as defined, puts Christians at a particular disadvantage compared with other persons. Ms Simler reminded us of the judgement of Baroness Hale in Rutherford v Secretary of State for Trade and Industry [2006] IRLR 551, describing the rule or requirement in that case as creating a barrier for a group of people who want something, and who are selected for disadvantage compared with others."
"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. Mr Marriott stated that this was the only case which he had encountered of a Christian complaining of the uniform policy. Certainly there was no evidence of Christians failing to apply for employment, being denied employment if they applied for it, or failing to progress within the employment of the respondent.
Taking these matters together, we do not consider that the provision put Christians at a particular disadvantage, and that being so, there is no disadvantage to which the claimant as an individual was put. The complaint of indirect discrimination therefore fails."
"… We consider that a proportionate means is one which is achieved as a result of a balancing exercise between all the interests involved, recognising the importance of the business need, analysing the business case and the rationale put forward by the respondent in accordance with the guidance in Hardys & Hanson plc v Lax [2005] IRLR 726, and forming our own view of whether justification has been proved. We would in that context consider it important to assess whether the respondent has demonstrated that any discriminatory impact has been assessed and reduced to the barest minimum."
"… it fails to distinguish an item which represents the core of an individual's being, such as a religious symbol, from an item worn purely frivolously or as a piece of cosmetic jewellery. We do not consider that the blanket ban on everything classified as "jewellery" struck the correct balance between corporate consistency, individual need and accommodation of diversity."
The appeal.
"The essence of indirect discrimination is that an apparently neutral requirement or condition (under the old formulation) or provision, criterion or practice (under the new) in reality has a disproportionate adverse impact upon a particular group. It looks beyond the formal equality achieved by the prohibition of direct discrimination towards the more substantive equality of results. A smaller proportion of one group can comply with the requirement, condition or criterion or a larger proportion of them are adversely affected by the rule or practice. This is meant to be a simple objective enquiry. Once disproportionate adverse impact is demonstrated by the figures, the question is whether the rule or requirement can objectively be justified."
This was merely stating in general terms how indirect discrimination would generally operate. It was not intended to be an exhaustive statement.
Preliminary observations.
religious belief or not was roundly rejected by Lord Nicholls in the following terms:
"When the genuineness of a claimant's professed belief is an issue in the proceedings the court will inquire into and decide this issue as a question of fact. This is a limited inquiry. The court is concerned to ensure an assertion of religious belief is made in good faith: 'neither fictitious, nor capricious, and that it is not an artifice', to adopt the felicitous phrase of Iacobucci J in the decision of the Supreme Court of Canada in Syndicat Northcrest v Amselem (2004) 241 DLR (4th) 1, 27, para 52. But, emphatically, it is not for the court to embark on an inquiry into the asserted belief and judge its 'validity' by some objective standard such as the source material upon which the claimant founds his belief or the orthodox teaching of the religion in question or the extent to which the claimant's belief conforms to or differs from the views of others professing the same religion. Freedom of religion protects the subjective belief of an individual. As Iaccobucci J also noted, at page 28, para 54, religious belief is intensely personal and can easily vary from one individual to another. Each individual is at liberty to hold his own religious beliefs, however irrational or inconsistent they may seem to some, however surprising…….. The relevance of objective factors such as source material is, at most, that they may throw light on whether the professed belief is genuinely held."
The grounds of appeal.
Did the claimant suffer a "particular disadvantage"?
"As May LJ put it in De Souza v Automobile Association [1986] ICR 514, 522G, the court or tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work."
His Lordship used the concept of detriment and disadvantage interchangeably, and the latter concept must be at least as broad as the earlier one. It cannot be supposed that there was any intention to cut back on the protection which the older concept of indirect discrimination law afforded.
Observations and conclusion.
Were persons of the same religion or belief put at a particular disadvantage?
The cross appeal.
Disposal.