ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CARNWATH
LADY JUSTICE SMITH
|- and -
|BRITISH AIRWAYS PLC
Ms Ingrid Simler QC (instructed by Baker & McKenzie LLP) for the Respondent
Hearing dates: 19 and 20 January 2010
Crown Copyright ©
Lord Justice Sedley :
3.1 The claimant, who is a devout practising Christian, has worked part-time as a member of check-in staff for the respondent since 1999. As her job is customer facing, she is required to wear uniform. As the respondent operates a 24 hour operation throughout the year, she is required to work in a shift pattern. The claimant complained of a number of incidents between 2003 and 2006 which she said showed anti-Christian bias on the part of the respondent.
3.2 Until 2004 the claimant's uniform included a high necked blouse, and she wore a silver cross on a necklace underneath the blouse when she wished to. Starting in 2004, the respondent introduced a newly designed uniform, which we call the Macdonald uniform, which included provision for an open neck, but which prohibited the wearing of any visible item of adornment around the neck. Between 20 May and 20 September 2006 the claimant came to work on at least three occasions with the cross visible under her uniform. When asked to conceal it she did so. When on 20 September she refused to conceal the cross, she was sent home.
3.3 The claimant remained at home, unpaid, from 20 September until the following February. She initiated and pursued the respondent's grievance procedures. A storm of media attention, much of it hostile to the respondent, led the respondent to reconsider its uniform policy and to introduce an amended policy on 1 February 2007. The amended policy permitted staff to display a faith or charity symbol with the uniform. The claimant returned to work on 3 February 2007 and is still employed by the respondent.
Indirect religious discrimination
3. 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,
(ii) which puts B at that disadvantage, and
(iii) which A cannot show to be a proportionate means of achieving a legitimate aim.
By Reg. 2(1), "religion" means any religion and "belief" means any religious or philosophical belief.
"The Claim is for Indirect Discrimination on grounds of religion or belief ..
(b) This policy prevents the open wearing of a Cross by Christians. British Airways have applied their policy to permit adherents of other faiths to openly wear religious clothes that manifest their religious beliefs in the workplace;
(e) The policy is a 'provision, criterion or practice' (PCP) which places i) Christians, and ii) the Claimant at a 'particular disadvantage'; the 'decision' to refuse the wearing of a discreet Cross is a PCP; the disrespect of the Christian faith is a PCP;
33.4. The tribunal heard evidence from a number of practising Christians in addition to the claimant. None, including the claimant, gave evidence that they considered visible display of the cross to be a requirement of the Christian faith; on the contrary, leaders of the Christian Fellowship had stated that, "It is the way of the cross, not the wearing of it, that should determine our behaviour". (R1, 780). The claimant's evidence was that she had never breached the uniform policy before 20 May 2006, and that the decision to wear the cross visibly was a personal choice, not a requirement of scripture or of the Christian religion. There was no expert evidence on Christian practice or belief (although that possibility had been canvassed at the PHR in June).
33.5. 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.
(1) The meaning of Reg. 3(1)(b)
Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
"Article 9 does not protect every act motivated or inspired by a religion or belief. Moreover, in exercising his freedom to manifest his religion, an individual may need to take his specific situation into account".
"The Strasbourg institutions have not been at all ready to find an interference with the right to manifest religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to practise or observe his or her religion without undue hardship or inconvenience".
"In our judgment, in order for indirect discrimination to be established, it must be possible to make some general statements which would be true about a religious group such that an employer ought reasonably to be able to appreciate that any particular provision may have a disparate adverse impact on the group".
(2) A new issue
33.2. It was agreed that the respondent applied to the claimant a provision criterion or practice, defined by Ms Simler (and we agree) as the provision "that personal jewellery or items (including any item worn for religious reasons) should be concealed by the uniform unless otherwise expressly permitted by BA". It was also conceded that that provision applied equally to persons not of the Christian religion.
33.3. We turn next 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 judgment of Baroness Hale in Rutherford v Secretary of State for Trade and Industry  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.
33.11. We would not consider the requirement proportionate because 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.
9.14. We accept that if invited to consider an amendment to the policy on religious grounds, the respondent generally saw the matter through the perspective of diversity, and sought to accommodate staff diversity where appropriate.
9.15. We find that other than the claimant every individual who requested accommodation of the policy observed existing policy until a change was authorised. The claimant was the only employee who ever raised an issue under the [Macdonald] policy and insisted on a departure from the [Macdonald] policy while the matter was still under consideration.
"We find that the procedures were properly followed, and where delays arose, they arose not out of the factual complexity of the issues, but partly due to the unavailability of individuals, and partly because the claimant's insistence in introducing wide policy considerations forced the grievance investigators to seek a range of management views on broader issues. The press coverage which was, in the main, supportive of the claimant cannot have assisted any manager tasked with objective adjudication on an individual employment issue".
The Equality Bill
Lord Justice Carnwath:
Lady Justice Smith: