The application and enforcement of dress codes in the workplace – always a potentially contentious issue – has proved to be a particularly emotive arena in which employees and their representatives have sought to test the muscles of the Employment Equality (Religion or Belief) Regulations 2003 ('the Regulations').
In particular, some high profile cases have involved assertions that the application of a particular dress or uniform code has indirectly discriminated against members of a specific faith or religion.
Indirect discrimination is unlawful whether it is intentional or not.
Under the Regulations, indirect discrimination in the workplace occurs where the employer applies to the employee 'a provision, criterion or practice' that:
- the employer applies or would apply equally to persons not of the same religion or belief as that employee, but
- which puts or would put persons of the same religion or belief as this employee at a particular disadvantage when compared to other people
- which puts the employee at that disadvantage, and
- which the employer cannot show to be a proportionate means of achieving a legitimate aim (ie, cannot justify).
Eweida v British Airways plc is one of the most recent cases to reach the EAT in respect of allegations of indirect religious discrimination arising by virtue of enforcement of a dress code.
Miss Eweida, a devout Christian, was employed by British Airways (BA) as a part-time member of its check-in staff. She asserted that BA had discriminated against her contrary to the Regulations by refusing to allow her to display a silver cross on a chain around her neck when she was in uniform.
From 2004 until 2007, BA's uniform policy had not allowed non-uniform items to be worn visibly. This included religious items unless the item was 'a mandatory scriptural requirement whose exposure had been expressly approved by BA'.
Although the hijab, Sikh turbans and Jewish skull caps had been expressly approved by BA, displaying a cross had not.
Despite being warned by line managers on several occasions not to display her cross outside her uniform, Eweida had persisted in doing so. Due to this continued breach of uniform policy she was sent home from work on 20 September 2006. A number of attempts were made to resolve the dispute, including an offer to Eweida to return to work in a non-uniform role, thereby allowing her to display her cross, but Eweida remained away from work without pay until February 2007. Eweida only returned to work after BA voluntarily changed its uniform policy so as to allow members of staff to display faith or charity symbols on their uniforms.
Eweida presented a number of complaints to the employment tribunal, including claims that she had been subjected to direct and indirect religious discrimination and harassment, contrary to the Regulations.
She was unsuccessful in all her claims at tribunal. The tribunal ruled that BA's uniform policy had not amounted to direct discrimination as BA had applied it to all applicable employees, regardless of religion or belief, in the same manner. The tribunal held that there had been no harassment as there was no evidence that BA had engaged in unwanted conduct towards Eweida. BA had merely sought to enforce its uniform policy.
The tribunal also rejected Eweida's claim of indirect discrimination because although it found that BA had applied 'a provision, criterion or practice' – the requirement that all non-uniform items be concealed – it concluded that this practice had not put Christians at a particular disadvantage compared to others.
Eweida appealed to the EAT against the tribunal's rejection of her claim of indirect discrimination.
