Saturday, May 1, 2010

United Kingdom

Religious Liberties and the Impact on Workplace Equality Issues; Dress Codes 

By Anna Birtwistle
CM Murray LLP

The Court of Appeal has held that a British Airways (“BA”) uniform policy which precluded a Christian employee from wearing a visible silver cross was not indirectly discriminatory under the UK’s Employment Equality (Religion or Belief) Regulations 2003 (the “Regulations”).

Religious discrimination has been a particularly dominant issue in the UK over recent months; the Pope himself even having intervened in the public debate as to how religious beliefs will be protected under the forthcoming Equality Act.

Eweida v British Airways plc follows a number of cases where Christian religious rights have been repeatedly trumped by discrimination protections of other groups of workers. They include the failed claims of the Christian relationship counsellor who did not wish to provide sexual counselling to gay couples; the Christian magistrate who did not wish to hear gay adoption cases; and most recently, the Christian Registrar who refused to officiate at gay civil partnership ceremonies. All felt that those aspects of their jobs went against their religious beliefs; and all failed.

In Eweida, E, a devout practising Christian, worked on BA’s check-in desk. BA’s uniform policy at the relevant time permitted employees to wear any jewellery they wished provided that it was not visible. An exception allowed for items deemed being a mandatory religious requirement which could not be concealed. E refused to conceal a silver cross she wore on a necklace and was sent home without pay.

Following the dismissal of her claims for direct discrimination, indirect discrimination and harassment at the first instance and appeal tribunals, E appealed the decision reached in respect of her indirect discrimination claim in the Court of Appeal. The Court observed that, for an indirect discrimination claim to be successful, there must be a provision, criterion or practice (“PCP”) applied to all employees which puts ‘or would put’ persons who shared the claimant’s religion or belief at a disadvantage compared to other persons. E, on the other hand, argued that it should have been sufficient for her to show that she alone suffered the disadvantage on the grounds of her religion.

The Court of Appeal rejected E’s appeal; in the Court’s view, there was no need to suggest that the word “persons” in the EU Equal Treatment Framework Directive (No.2000/78) was intended to include solitary disadvantage within the scope of indirect discrimination. The Court placed significant weight on the fact that the detriment was suffered by E alone, that her wish to wear the cross did not arise from any doctrine of faith and that it did not interfere with her observance of it.

This decision does not sit well with the general principle that protection from discrimination should be interpreted broadly and one might have expected the Court to have taken a more generous approach when interpreting the Regulations given that unlike other decisions concerning religious discrimination, the manifestation of E’s belief arguably had no discernable affect upon others.

Whilst it is correct that it was E’s personal decision to wear a visible cross (and was not one which was required by scripture or as an article of her faith like, for example, the Sikh turban), it is questionable why, when discrimination legislation has moved forward so as to encompass arguably non-traditional philosophical beliefs such as climate change, the law should look to the requirements of scripture as they pertain to religions rather than individuals’ own interpretation of their faith and subjective belief of how this should be observed.