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Eweida v United Kingdom

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Eweida v British Airways plc
CourtCourt of Appeal
Citations[2010] EWCA Civ 80, [2010] IRLR 322
Case history
Prior action[2008] UKEAT 0123_08_2011
Subsequent actions[2011] ECHR 738, [2013] ECHR 37
Court membership
Judges sittingSedley LJ, Smith LJ and Carnworth LJ
Keywords
Indirect discrimination, religion, clothing policy

Eweida v British Airways plc [2010] EWCA Civ 80 is a UK labour law case concerning a public dispute between British Airways (BA) and one of their employees over its uniform policy. The case involved an employee's right to wear a religious necklace outside her clothes while working. The European Court of Human Rights awarded her damages for the UK government's failure to protect her rights.

The case has been widely reported in the UK media because various groups [vague] have argued that it shows either anti-Christian prejudice in the UK,[1] or alternatively, favouritism towards people of faith.[2][3]

Facts

In October 2006, Nadia Eweida, a Christian employee of British Airways, was asked to cover up a cross necklace which depicted a Christian cross, and was placed on unpaid leave when she refused either to do so or to accept a position where she did not have to cover it up. She was wearing the necklace on the outside of her uniform, contravening BA's uniform policy for jewellery. Eweida planned to sue the airline for religious discrimination. Some Christian groups accused British Airways of double standards, as Sikh and Muslim employees are not prevented from wearing religious garments at work, since these are impractical to cover up.[1] Though the wearing of garments is a requirement in some faiths, in this case, British Airways believes that wearing a cross is not necessary in Christianity, in general.

Eweida lost an initial appeal to her employers on 20 November, but publicly stated she would continue to dispute BA's policy, and that she wished to wear the cross to manifest her religion:[4] the BBC quoted her as saying, "It is important to wear it to express my faith so that other people will know that Jesus loves them."[5]

The National Secular Society argued it was sensible for staff handling baggage to be prohibited from wearing jewellery over their uniforms, said that Eweida was trying to evangelise in the workplace[6] and that BA should have the right to insist that its uniform is neutral.[5][7]

BA, having had the same policy with regard to jewellery being worn with the uniform for a long time, with which other staff were comfortable, responded to pressure and announced on 25 November a review of its uniform policy which could allow the wearing of a lapel badge. The Archbishop of Canterbury disclosed that the issue had been raised with the Church Commissioners, who look after Anglicans' financial interests.[8] The following day Eweida declared that this compromise was unacceptable to her.[9]

On 28 November, the Prime Minister, Tony Blair, publicly stated that in his view the issue was not worth BA fighting and that it would be best for the airline "just to do the sensible thing": i.e. allow the cross to be worn.[10][11]

On 19 January 2007 BA announced that they would in future allow employees to wear a symbol of faith "openly" on a lapel pin, "with some flexibility ... to wear a symbol of faith on a chain".[12][13]

Judgment

Employment Tribunal

Although BA changed its policy, it refused to pay Eweida for the period of her suspension.[14] Eweida opted to pursue her case against BA at an employment tribunal, citing the original BA ruling as a form of discrimination against Christians.[15] On 8 January 2008, after rejecting an out of court settlement offer reported at £8,500, Eweida lost her case. It was rejected on the grounds that she had breached the firm's regulations without good cause.[16] The tribunal commented that it was "not a tribunal of faith".[17] The tribunal's report highlighted several other issues regarding Eweida's conduct at BA, including refusing to work on Christmas Day and telling a gay colleague that he could still be "redeemed".[18] Eweida indicated that she would continue to fight her employers while retaining her position at the company,[19]

Employment Appeal Tribunal

In the Employment Appeal Tribunal, Elias J refused Ms Eweida's appeal.[20]

Court of Appeal

Eweida first appealed to the Court of Appeal for a costs capping order, which was shortly refused.[21] She then appealed on substantive grounds, which also failed in February, 2010.[22] Sedley LJ upheld the judgment of the EAT.[23]

In October 2010, after the Supreme Court refused to hear her case, Ms. Eweida announced her intention to seek redress in the European Court of Human Rights in Strasbourg, the ultimate appeal court applicable to UK law.[24]

European Court of Human Rights

The European Court of Human Rights heard Ms. Eweida's case in September 2012, in combination with three other cases.[25] This was against the UK government for failing to provide domestic law to protect the claimed rights,[26] rather than against BA. In January 2013, the court found that her rights had been violated under Article 9 of the European Convention on Human Rights and awarded her damages of €2,000 plus costs of €30,000.[27] They ruled this as they said British Airways had not reached a fair balance between Eweida's religious beliefs and the company's desire to have a particular corporate image.[28]

The court said the following, in weighing up the merits of the case.

94. It is clear, in the view of the Court, that these factors combined to mitigate the extent of the interference suffered by the applicant and must be taken into account. Moreover, in weighing the proportionality of the measures taken by a private company in respect of its employee, the national authorities, in particular the courts, operate within a margin of appreciation. Nonetheless, the Court has reached the conclusion in the present case that a fair balance was not struck. On one side of the scales was Ms Eweida’s desire to manifest her religious belief. As previously noted, this is a fundamental right: because a healthy democratic society needs to tolerate and sustain pluralism and diversity; but also because of the value to an individual who has made religion a central tenet of his or her life to be able to communicate that belief to others. On the other side of the scales was the employer’s wish to project a certain corporate image. The Court considers that, while this aim was undoubtedly legitimate, the domestic courts accorded it too much weight. Ms Eweida’s cross was discreet and cannot have detracted from her professional appearance. There was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image. Moreover, the fact that the company was able to amend the uniform code to allow for the visible wearing of religious symbolic jewellery demonstrates that the earlier prohibition was not of crucial importance.

Significance

This case highlighted some issues around the inadequacy of UK employment equality law in dealing with religion cases. There has been a suggestion from lawyers at Lewis Silkin LLP that perhaps a better approach might be for employers to have a duty to make adjustments to accommodate religion (as currently exists in the US and Canada).[29]

See also

References

  1. ^ a b "Woman to sue BA in necklace row". BBC News. 2006-10-15. Retrieved 2006-11-21.
  2. ^ "Editorial: Christian Bullies Press Their Advantage". National Secular Society. 2006-11-26. Retrieved 2008-01-22.
  3. ^ "BA needs defending from religious zealots, not the other way round". National Secular Society. 2008-01-18. Retrieved 2008-01-22.
  4. ^ "Woman loses fight to wear cross". BBC News. 2006-11-20. Retrieved 2006-12-03.
  5. ^ a b "Archbishop attacks BA cross rules". BBC News. 2006-11-21. Retrieved 2006-11-25.
  6. ^ "BA Should Not Be Bullied Over Jewellery Ban, Especially by Government Ministers". National Secular Society. 2006-11-22. Retrieved 2006-12-01.
  7. ^ "Editorial: Christian Bullies Press Their Advantage". National Secular Society. 2006-11-26. Retrieved 2006-12-01.
  8. ^ Petre, Jonathan; Millward, David (2006-11-25). "BA's climbdown follows tirade from archbishop". London: Daily Telegraph. Retrieved 2006-12-01. {{cite news}}: Italic or bold markup not allowed in: |publisher= (help)
  9. ^ "BA cross women vows no compromise as 92-per cent of public back her". ThisisLondon.co.uk. 2006-11-26. Retrieved 2006-12-01.
  10. ^ Seager, Ashley (2006-11-28). "Blair chides British Airways for fighting employee over cross". London: The Guardian. Retrieved 2006-12-01. {{cite news}}: Italic or bold markup not allowed in: |publisher= (help)
  11. ^ "Blair advises BA to end cross row". BBC News. 2006-11-27. Retrieved 2006-12-03.
  12. ^ "BA drops ban on wearing crosses". BBC News. 19 January 2007. Retrieved 2009-11-25.
  13. ^ [1] [dead link‍]
  14. ^ http://web.archive.org/web/20110611190412/http://www.liberty-human-rights.org.uk/news-and-events/1-press-releases/2009/24-09-09-british-airways-attempts-to-force-freedom-of-conscience-case-out-.shtml. Archived from the original on June 11, 2011. Retrieved January 12, 2010. {{cite web}}: Missing or empty |title= (help); Unknown parameter |deadurl= ignored (|url-status= suggested) (help)
  15. ^ "BA worker 'speechless' after losing cross case". London: The Times. 9 January 2008. Retrieved 2008-01-22. {{cite news}}: Italic or bold markup not allowed in: |publisher= (help)
  16. ^ Glendinning, Lee (9 January 2008). "BA worker loses discrimination case over cross". London: The Guardian. Retrieved 2008-01-14. {{cite news}}: Italic or bold markup not allowed in: |publisher= (help)
  17. ^ Sandberg, Russell (2008). "Eweida v British Airways". Law and Justice. 160: 56–59.
  18. ^ Sanderson, Terry (17 January 2008). "A cross to bear". London: The Guardian. Retrieved 2008-01-22. {{cite news}}: Italic or bold markup not allowed in: |publisher= (help)
  19. ^ "British Airways worker loses discrimination battle to wear crucifix". London: Daily Mail. 2008-01-09. Retrieved 2008-01-22. {{cite news}}: Italic or bold markup not allowed in: |publisher= (help)
  20. ^ See [2009] IRLR 78, [2009] ICR 303
  21. ^ See [2009] EWCA Civ 1025
  22. ^ The Guardian, February 12, 2010, Christian BA worker loses appeal over cross
  23. ^ [2010] EWCA Civ 80
  24. ^ Press Association, October 22, 2010, Christian BA worker takes cross case to Europe
  25. ^ The Daily Telegraph. London http://www.telegraph.co.uk/news/religion/9519785/The-four-Christians-accusing-their-employers-of-discrimination.html. {{cite news}}: Missing or empty |title= (help)
  26. ^ http://hudoc.echr.coe.int/sites/fra-press/pages/search.aspx?i=003-4221189-5014359
  27. ^ ECtHR Chamber judgment in cases nos. 48420/10, 59842/10, 51671/10 and 36516/10
  28. ^ "British Airways Christian employee Nadia Eweida wins case". BBC News Online. 15 January 2013. Retrieved 15 January 2013.
  29. ^ http://www.lewissilkin.com/Journal/2012/September/Reinventing-indirect-discrimination.aspx
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