Christian cross claim goes to Europe
On 4th September 2012, the European Court of Human Rights (ECHR) heard the case of Eweida v UK Government, (together with three other Christian religious belief cases, Chaplin, Ladele & MacFarlane).
The background to this claim is that six years ago, in September 2006, Ms Nadia Eweida refused to cover the cross which she wore round her neck. This was in breach of British Airway's policy stipulating that no jewellery could be worn visibly around the neck. Ms Eweida was sent home.
She pursued a grievance and BA then reviewed its policy and amended it in February 2007 to allow employees to display a faith or charity symbol with their uniform. Ms Eweida returned to work with BA on 3rd February 2007 and remains a BA employee.
Ms Eweida pursued her claim for discrimination on the grounds of her religion to the Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal.
From BA's standpoint, it was not significant that Ms Eweida wanted to wear a cross, as the rule was simply against any jewellery worn visibly around the neck. The policy, however, did allow for religious exceptions but only for "mandatory" scriptural requirements.
Ms Eweida's argument was that, whilst the policy allowed for someone to wear, for example, a Turban visibly, it was indirect discrimination not to allow her to wear her cross visibly.
Ms Eweida and other Christian Groups accepted, however, that the display of a cross was not considered to be a "requirement" of Christian faith. Predominantly for this reason, she was unsuccessful in the Tribunal, the Employment Appeal Tribunal and the Court of Appeal.
At the Court of Appeal, Ms Eweida argued that she did not need to show an "identifiable group" was put at a disadvantage for indirect discrimination but could show that she, alone, was disadvantaged.
This argument was rejected by Lord Justice Sedley in his February 2010 Judgment. He confirmed that, first, it was necessary to determine whether an "identifiable group" was adversely affected, actually or potentially, by the policy and then, secondly, whether the Claimant had, in fact, been disadvantaged by it. Accordingly, the Court of Appeal found she had not been indirectly discriminated against.
When, on 11th July 2012, David Cameron was asked in the Commons about this case going to Europe, he stated, " I fully support the right of people to wear religious symbols at work; I think it is a vital religious freedom" and went on to say that he would seek to change the law if it meant that people could not do this.
If Ms Eweida is successful in the ECHR, it is likely to have an impact on an employer's ability to justify its uniform or dress code policy. Nevertheless, where the policy is based, as in the Chaplin case, on Health and Safety considerations, not allowing a cross to be worn around the neck may still be justifiable as a proportionate means of achieving a legitimate aim.
Equally, if Ms Eweida loses in the ECHR, it would appear Mr Cameron has committed to change UK law in this regard in any event. Getting the balance right may be easier said than done.