England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
UKEAT/0123/08/LA

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/02/2010

Lord Justice Sedley :

1. The question in this appeal is whether, by adopting a staff dress code which forbade the wearing of visible neck adornment and so prevented the appellant, a Christian, from wearing with her uniform a small, visible cross, British Airways (BA) indirectly discriminated against her on grounds of religion or belief. If the answer is that they did, a further question of justification arises.
2. In the light of the publicity which this case has received, it is necessary to say what the appeal is not about. It is not about whether BA had adopted an anti-Christian dress code, nor whether members of other religions were more favourably treated, nor whether BA had harassed the appellant because of her beliefs. All of these allegations were rejected by an employment tribunal which heard the evidence over 6 days in November 2007. In a well-organised and carefully reasoned decision the tribunal (Employment Judge Lewis, Ms Breslin and Mrs Grugeon) also held that no direct discrimination had occurred. All of these conclusions are now accepted.
3. Among the tribunal's explicit findings are Ms Eweida's "readiness to make a serious accusation without thought of the implications" (§20.7), "her insensitivity towards colleagues, her lack of empathy for those without a religious focus in their lives, and her incomprehension of the conflicting demands which professional management seeks to address and resolve on a near-daily basis" (§19.4.5). It is regrettable that print and broadcast media have continued to publicise allegations made against BA by Ms Eweida (and not by her alone) which have been rejected by a responsible judicial tribunal.
4. The single issue on which the appellant took her claim on to the Employment Appeal Tribunal, and now appeals to this court, was whether there had nevertheless been indirect discrimination which was unjustified. The tribunal held that there had not been. Had they found indirect discrimination, they went on to hold that it would not have been justified. Against the latter finding BA contingently cross-appeals.

The history

5. The background to this claim can be taken directly from the summary given by the employment tribunal.

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

6. Although Karon Monaghan QC for the appellant founds her case on larger sources of law, the key provision for present purposes is Reg. 3 of the Employment Equality (Religion or Belief) Regulations 2003:

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.

7. In her claim form Ms Eweida put her case against BA's dress code in this way:

"The Claim is for Indirect Discrimination on grounds of religion or belief …..

Particulars

…….

(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;

......"

8. The tribunal concluded that the claimant had failed to show that Christians had been placed at a disadvantage. They said:

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.

9. Ms Monaghan attacks this conclusion only briefly, contending that "it could and should have been inferred that there would on the balance of probabilities be at least some others like her". The tribunal declined to draw any such inference, and I can see no tenable basis on which they can be criticised for so doing. As they record, no employee in a uniformed workforce numbering some 30,000 had ever made such a request or demand, much less refused to work if it was not met, and Ms Eweida herself described it as a personal choice rather than as a religious requirement. There was no reason whatever why the tribunal should infer that there were others whose religiously motivated choice, not of whether but of where they should wear a symbol of their faith, was of such importance to them that being unable to exercise it constituted a particular disadvantage.
10. It is therefore unsurprising that Ms Monaghan made little of this argument and concentrated her extremely able submissions on a different one. This was that the tribunal had erred in law in looking for evidence of any material group within the BA workforce, and that the EAT had erred in law in upholding them. On a correct reading of the regulation, Ms Monaghan submits, "persons" in sub-paragraph (i) includes a single individual. Even if on the evidence, therefore, Ms Eweida alone was disadvantaged by the dress code, the test of indirect discrimination is met.
11. This argument faces two major difficulties.

(1) The meaning of Reg. 3(1)(b)

12. The first is that, if it is right, no evidence of group disadvantage is ever necessary: one would simply read "persons" as if it were "any person". In that event, however, sub-paragraph (i) could have been omitted entirely without changing the meaning of the regulation.
13. Moreover, while for my part I would not share the EAT's view (§59) that "the whole purpose of indirect discrimination is to deal with the problem of group discrimination" (its overall purpose, as both counsel agree, is to deal with the discriminatory impact of facially neutral requirements), it is entirely right that the way in which equality laws on both sides of the Atlantic have for many years sought to do this is by seeing, first, whether an identifiable group is adversely affected, whether actually or potentially, by some ostensibly neutral requirement and then whether the claimant has in fact been disadvantaged by it.
14. This familiar model, originating in the US Supreme Court's landmark decision in Griggs v Duke Power Co US 424 (1971), brought in its train considerable problems of implementation. In particular, the schematisation of it in the Sex Discrimination Act 1975 and the Race Relations Act 1976 required the isolation of "pools" within which the proportion of disadvantage could be gauged, a task which defeated three decades' judicial attempts to find a workable formula. The Framework Directive 2000/78/EC avoided this snare by defining indirect discrimination as occurring "where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons". The 2003 Regulations, designed to implement the Directive, adopted the formula set out in §6 above (a formula now replicated by amendment in the Sex Discrimination Act). Ms Monaghan does not suggest that this was an imperfect transposition: rather she submits that Reg. 3 is to be read so as to conform with the Directive.
15. I accept the correctness of this approach. But there is in my judgment no indication that the Directive intended either that solitary disadvantage should be sufficient – the use of the plural ("persons") makes such a reading highly problematical – or that any requirement of plural disadvantage must be dropped. I see no reason, therefore to depart from the natural meaning of Reg. 3. That meaning, as Ms Simler submits, is that some identifiable section of a workforce, quite possibly a small one, must be shown to suffer a particular disadvantage which the claimant shares. This approach, unlike Ms Monaghan's, gives value both to sub-paragraph (i) and to sub-paragraph (ii). If you look at s.4A of the Disability Discrimination Act 1995 as amended, you see how Parliament provides for indirect discrimination against a single individual: it defines it as arising when a provision, criterion or practice, or any physical feature of the premises, "places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled". That is palpably not the case here.
16. The use of the conditional ("would put persons … at a particular disadvantage"), whether in the alternative, as in the domestic legislation, or on its own, as in the Directive, does not in my view have either the purpose or the effect with which Ms Monaghan seeks to invest it. Her contention is that "would put" requires the tribunal to aggregate the claimant with what may be – and in the present case would be – an entirely hypothetical peer-group to whom the same disadvantage is to be attributed. The effect of the argument is, as before, to permit a finding of indirect discrimination against a solitary employee.
17. The argument loads far too much on to the word "would". Its purpose, in my judgment, is the simple one indicated at the end of §12 above: to include in the disadvantaged group not only employees to whom the condition has actually been applied but those to whom it potentially applies. Thus, if you take facts like those in the seminal case of Griggs, the group of manual workers adversely affected by the unnecessary academic requirement will have included not only those to whom it had been applied but those to whom it stood to be applied.
18. On the narrowest view, its practical application in a case like this would require evidence that other uniformed BA staff would, like the claimant, have wished to wear a cross in a visible place but were deterred by the code from doing so: the fact that, unlike the claimant, they had not chosen to provoke a confrontation would not count against them. On the widest view it would operate wherever evidence showed that there were in society others who shared the material religion or belief and so would suffer a disadvantage were they to be BA employees. On an intermediate view, it would operate by assuming, even if it is not the case, that the workforce includes such others and asking whether they too, or some of them, would be adversely affected by the relevant requirement. All three have difficulties. The narrow view excludes the solitary individual from the protection of the law against indirect discrimination – a result which the Disability Discrimination Act 1995 explicitly avoids but which the 2003 Regulations do not. The wide view places an impossible burden on employers to anticipate and provide for what may be parochial or even factitious beliefs in society at large. The intermediate view, despite its attractions, in practice risks becoming merged with the wide view by inviting proof that in the world outside the workforce are co-religionists or fellow believers, however few, who are to be assumed to have entered the same employment as the claimant and have become subject to the requirement to which the claimant objects.
19. We do not have to resolve this issue because Ms Eweida's evidence failed all three tests. It is also possible that the meaning and effect of the formula differ depending on the form of discrimination alleged: it may be relatively simple, and within the legislative purpose, to aggregate a single female employee with a hypothetical group of other female staff in order to gauge adverse impact, but forensically difficult, even impossible, to do the same for a solitary believer whose fellow-believers elsewhere in society may accord different degrees of importance to the same manifestation of faith.
20. Part of Ms Monaghan's argument has been a criticism of the tribunal for looking for some "barrier" to the manifestation of faith in BA's uniform code, when all that is required is a disadvantage. I have quoted the passage at §33.5 in which the tribunal use the word, and the citation from Baroness Hale at §33.3 from which the word is taken. In my judgment this is a misdirected criticism. The word "barrier" is being used in both instances as a convenient metaphor for the kind of disadvantage described in the legislation; that is all.
21. Ms Monaghan cites Art. 9 of the European Convention on Human Rights in support of her case. Art. 9 provides:

Article 9

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.

22. But the jurisprudence on Art. 9 does nothing to advance the claimant's case. The European Court of Human Rights in Kalaç v Turkey (1997) 27 EHRR 522, §27, said:

"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".

23. In R (SB) v Governors of Denbigh High School [2006] UKHL 15, §23, Lord Bingham commented on this and other Strasbourg decisions:

"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".

24. The EAT's considered judgment on this part of the case can be found at [2008] UKEAT/0123/08/LA, §26-64. While my reasoning on it follows a slightly different course, and at one point differs from it, my conclusion is the same as theirs. In particular I would respectfully endorse what they held at §60:

"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

25. The second difficulty is that this was not how the claim was put to the tribunal. I indicated at the start of this judgment the intemperate sweep of the allegations initially made against BA. When I granted permission to appeal to this court on the single surviving issue, and again when dealing with cost-capping, I expressed my unease that a sectarian agenda appeared to underlie the claim. What we have been told by counsel about the claimant's rejection of an open offer to settle the claim on generous terms seems to confirm this. It was entirely of a piece with this, and not merely a tactical forensic choice, that the claim should be framed and pursued on the footing that BA was indirectly discriminating not simply against the claimant but against all Christians in its uniformed workforce.
26. It was to that claim, accordingly, that the tribunal addressed themselves. Their approach to the findings cited above took this form:

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 [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.

27. For BA, Ms Simler submits that it is not permissible to change tack in the way Ms Monaghan seeks to do. The EAT too were concerned at the alteration of course but nevertheless dealt with it. Ms Simler, who had appeared below, was in a position to assure them that the "single victim" argument had not been advanced below, and the EAT agreed that one would have expected to find it in such a conscientious determination had it been advanced. All that Ms Sarah Moore, then appearing for the appellant, could point to was "one or two sentences in the skeleton argument … which could be said to trail the submission, although that does not show that it was in fact pursued". But the EAT (Elias P, Mr Beynon and Sir Alistair Graham) went on to consider the argument in order to "see whether it would have assisted the claimant's case". They concluded that it would not.
28. We took the view that it would not be right to refuse to entertain Ms Monaghan's argument, which has been developed with skill and is of wide potential significance. But we have to do so on the basis of the facts found by the employment tribunal. These have two relevant facets. One is that the detriment of which Ms Eweida complains was suffered by her alone: neither evidentially nor inferentially was anyone else similarly disadvantaged. The other is that the tribunal's contingent finding on justification is deprived by Ms Monaghan's' change of tack of its assumed factual basis. It is one thing to find a lack of justification for a requirement which affects Christians as a whole in BA's workforce, which is how the case was put to the tribunal and therefore formed the hypothesis on which they considered justification. It is another to do so in relation to a requirement which (assuming the law to be as Ms Monaghan contends it is) has turned out to disadvantage a single employee who after 6 or 7 years of compliance with the dress code has decided that it is no longer compatible with her beliefs.
29. Ms Simler is accordingly entitled to take the point that if we are to entertain the new way of putting the claimant's case, and if it were to succeed, the tribunal's finding on justification will be cut free of its moorings. In that situation it is her submission not simply that justification would have to be reconsidered but that, on the evidence before the tribunal and its findings on that evidence, the only possible conclusion would be that BA had been justified both in putting the material requirement in place and in keeping it there pending its renegotiation and eventual modification. In my judgment this approach is appropriate.

Justification

30. Indirect discrimination, if it occurs, is not necessarily wrongful: the defendant employer may show that, in spite of its negative effect, the provision, criterion or practice, despite its unequal impact, constitutes a proportionate means of achieving a legitimate aim.
31. The employment tribunal explained why they would not have found the material requirement of the dress code justified if they had found that it placed Christians in general at a disadvantage. They considered that the aim of the uniform code was undoubtedly legitimate - a finding which requires no explanation. But they took the view that the prohibition of visible symbols was not proportionate because – with the admitted benefit of hindsight – it seemed to them that the eventual review which resulted in a relaxation of the code to permit the visible wearing of religious and other symbols could have taken place sooner had the (assumed) discriminatory impact of the code been analysed before November 2006.
32. They concluded:

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.

33. Ms Simler would have pressed her cross-appeal on justification even if the original claim of generic discrimination against Christians had been maintained. What has now to be justified is a rule which for some 7 years had apparently caused Ms Eweida, along with the rest of BA's staff, no known problem. Nor had it done so as a result of the introduction of the Macdonald uniform in 2004. When the issue was raised by her, it was conscientiously addressed - not perhaps as speedily as it might have been, but then it had been raised by a single employee and had no apparent urgency. It was Ms Eweida who decided (on whose advice we do not know) to refuse BA's accommodating offer to move her without loss of pay to work involving no public contact and instead to stay away from work and claim her pay as compensation.
34. In the situation now relied on by Ms Monaghan, in my judgment no tribunal could find that BA's response was such as to make the introduction or maintenance of the rule disproportionate, either before or after the point of time at which the issue was raised by Ms Eweida. On the evidential basis now adopted on her behalf, it was an entirely personal objection, neither arising from any doctrine of her faith nor interfering with her observance of it, and never raised by any other employee. She had twice made her point between May and September 2006 not by seeking a revision of the code but by reporting for work in breach of it. She had twice been warned; she had lodged a formal grievance on 13 June; but without waiting for it to be resolved she again breached the code and on this occasion, 20 September 2006, was sent home.
35. The tribunal's findings about BA put this history in perspective:

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.

36. Moreover, the tribunal (§26.8) made this finding:

"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".

37. I am bound to say that, in the light of these and other findings of the tribunal, I have considerable difficulty in seeing how they could hold that a previously unobjectionable rule had somehow become disproportionate once the claimant had raised the issue, even on the assumption that it was a rule that disadvantaged Christians as a group within the workforce. This is especially so in the light of Ms Simler's well-founded submission that the tribunal's reference to "the core of an individual's being" has no place in the present argument. Neither Ms Eweida nor any witness on her behalf suggested that the visible wearing of a cross was more than a personal preference on her part. There was no suggestion that her religious belief, however profound, called for it.
38. But findings of this kind by an expert tribunal are entitled to considerable respect on the part of appellate courts, and it may be that despite my reservations about it interference would not have been justified. It is, however, no longer relevant. On the footing on which the indirect discrimination claim is now advanced, namely disadvantage to a single individual arising out of her wish to manifest her faith in a particular way, everything in the tribunal's findings of fact shows the rule, both during the years when it operated without objection and while it was being reconsidered on Ms Eweida's instigation, to have been a proportionate means of achieving a legitimate aim. The contrary is not in my view arguable.
39. It follows that, were Ms Monaghan's new case on indirect discrimination to be sustainable in law, it would be defeated by BA's case on justification.

The Equality Bill

40. Ms Monaghan has helpfully shown us how Parliament is currently considering consolidating the various equality statutes within a single measure. In its present form the Bill, by clause 19, adopts a definition of indirect discrimination which Ms Monaghan suggests has a meaning similar to her construction of Reg. 3(1)(b). It is not in my view appropriate for us to place any weight on what is still a draft measure, even if – which I doubt – the submission is correct. But it is to be noted that the same definition is used for all the listed forms of indirect discrimination, relating to age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex and sexual orientation. One cannot help observing that all of these apart from religion or belief are objective characteristics of individuals; religion and belief alone are matters of choice. This case has perhaps illustrated some of the problems which can arise when an individual (or equally a group) asserts that a provision, criterion or practice adopted by an employer conflicts with beliefs which they hold but which may not only not be shared but may be opposed by others in the workforce. It is not unthinkable that a blanket ban may sometimes be the only fair solution.

Conclusion

41. I would dismiss this appeal.

Lord Justice Carnwath:

42. I agree that the appeal should be dismissed for the reasons given by Sedley LJ in paragraphs 12 to 24. On the justification issue, if it had arisen, I would not have felt it right to interfere with the conclusions of the expert ET and EAT, even if I had shared the concerns he expresses in paragraph 37. By the same token, I prefer to say nothing about the issue of justification on the narrower basis (his para 38), that not having been addressed directly by the ET.

Lady Justice Smith:

43. I agree with the judgment of Sedley LJ.