Monday, 08 Mar 2010
Some guidance on indirect religious discrimination
Discrimination at work is a minefield for employers and the necessary level of religious sensitivity required can be difficult to ascertain. Common issues can come up in even the smallest of workplaces, such as acceptable alterations to uniforms, how food is stored in the kitchen and how to accommodate festivals and prayer times.
Indirect discrimination can be particularly difficult. This is when a certain section of employees suffers discrimination under a rule or policy which applies to all employees equally. One of the UK’s largest employers, British Airways, has recently participated in a dispute of this kind in the case of Eweida v BA.
Miss Eweida is a Pentecostal Christian who works for BA customer services department in Heathrow airport. Under BA’s dress code, she was banned from wearing a cross on a necklace whilst at work and was suspended from work on no pay when she refused to do so. She sued BA for religious discrimination. They consequently changed their uniform policy to allow all religious symbols, including crosses, to be worn openly. Miss Eweida was then reinstated, but sued BA for around £120,000 in damages for violation of dignity, discrimination and lost wages.
Miss Eweida failed in her campaign at the Employment Tribunal, Employment Appeal Tribunal and, more recently, the Court of Appeal.
The Court of Appeal rejected the argument that an individual could be the subject of indirect discrimination. It pointed out that if a solitary employee could be indirectly discriminated against, this could place an impossible burden on employers to anticipate and provide for what may be parochial or even facetious beliefs in society at large. The Court upheld that, for a finding of indirect discrimination, some identifiable section of a workforce (quite possibly a small one) must be shown to suffer the same disadvantage as the claimant as a result of a neutral requirement of their employer.
The Court also found that BA's controversial staff dress code, including the ban on a visible neck adornment, would have been deemed justified as “a proportionate means of achieving a legitimate aim”. Therefore, BA would have been ultimately successful regardless of whether Miss Eweida was part of a disadvantaged group rather than an individual.
Many religious campaigners are viewing this as a disappointing judgement that will do little to build public confidence in equality laws established to protect everyone. However, for employers, this case gives better guidance as to what is acceptable in relation to dress codes and religious requirements within their employment policies.
If you would like any further information or advice on these issues please contact Donna Reynolds or Laura McConnell in our Employment Team.