Home > Law, Culture and Religion, New Judgments and Cases to Watch > Nadia Eweida in the Court of Appeal

Nadia Eweida in the Court of Appeal

Yesterday, the Court of Appeal reserved judgment in the case of Nadia Eweida, a Pentacostal Christian and British Airways check-in worker who was banned from visibly wearing a small cross and chain around her neck while at work. BA  permitted  employees to wear items which were required by particular religious belief, such as the Jewish yarmulke, the Sikh kara and turban and the Muslim hijab but did not permit other symbols or garmets which expressed a political or religious allegiance. Ms Eweida wears the cross as an expression of her Christianity and to remind others that Jesus loves them. BA eventually changed its policy – in part because of financial pressure exerted by the Church of England – but in the meantime a precedent was set at the Employment Appeals Tribunal which Ms Eweida, with the backing of Liberty, is seeking to challenge. Ms Eweida’s case will be of interest to those who are following similar Irish disputes, including that over the place of Sikh turbans in the garda uniform.

In 2008, the Employment Appeals Tribunal held (see judgment here) that she had not been subject to indirect religious discrimination within the terms of the Employment Equality Regulations 2003 because there was no evidence that a sufficient number of persons other than the claimant shared her strong religious view that she should be allowed visibly to wear the cross. The Tribunal said (at [46]-[49]):

[I]n order to fall within the terms of the legislation, it is still necessary that the particular disadvantage relied upon should stem from the religious beliefs held by the claimant. It is not enough that persons of the same religion and belief are fortuitously affected by the provision. It must be something connected with the religion or belief that causes the adverse effect. That is so however the pool is defined.

Such strongly held views are not limited to those practising religion; and they do not become religious beliefs simply because the item in question is symbolic of a particular religion rather than of some other cause. Of course, it may be an aspect of a religious belief that some religious item should be worn, but such a belief is of a different dimension. That was the position in the Aberdare School case where the claimant believed that she was required by her religion to wear the Kara.

Accordingly, whilst we would not discount the possibility that the claimant might in principle be able to establish disparate impact by including as affected employees even some who complied with the provision, it would still be necessary to for her to show that there was the relevant disparate impact suffered by those sharing the same religion or belief. That is not established merely by showing that others have a strong view that jewellery, or even crosses, should be worn. Such views do not of themselves necessarily reflect or derive from a religious belief.

The Tribunal continued (at [59]-[60])

In our judgment, the whole purpose of indirect discrimination is to deal with the problem of group discrimination. The starting point is that persons of the same religion or belief as the claimant should suffer the particular disadvantage, distinct from those who do not hold that religion or belief, as a consequence of holding or practising that religion or belief. The claimant must share that particular disadvantage because otherwise she could not show that she was a victim; the provision would not adversely affect her. But in our judgment it is not enough for a claimant to identify a disadvantage which she personally suffers and which others not sharing her belief do not, and then establish liability merely by discovering – anywhere it seems – a like minded soul who shares her belief so that he or she would be similarly disadvantaged if employed in similar circumstances by BA. 

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.

The Tribunal decision, therefore, hangs on the notion that anti-discrimination measures protect against certain harms which flow from group membership and shared profession rather than from individual belief. This is the point that Ms. Eweida is challenging. The Daily Telegraph reports on the crucial elements of her argument in the Court of Appeal yesterday:

Miss [Karon] Monaghan QC, told Lord Justice Sedley, Lord Justice Carnwath and Lady Justice Smith that the central issue was whether the EAT correctly addressed the question of “particular disadvantage”.

“We say that the EAT fell into error when it concluded that it was necessary to establish a group disadvantage among Christians generally for the purposes of the indirect discrimination provisions. The appellant’s case is that it was not necessary.”

She added that Article 9 of the European Convention on Human Rights and the 2003 Employment Equality (Religion or Belief) Regulations respected “highly personal and individual” religious beliefs and practices.

“The position otherwise would be that the more marginal one’s genuinely held religious belief, the smaller the minority of persons sharing that view, the less protection would be afforded by the regulations. This would be inconsistent with the fundamental principles of equality and respect for religious belief underpinning the directive and found in Article 9.”

Liberty similarly takes the view that BA’s argument: 

 fundamentally misunderstands the idea of individual rights and freedoms, which do not depend on how many people agree with your conscience or speech. It also opens up secular courts to lengthy arguments as to what is a theological necessity. Making windows into men’s souls is as pointlessly complex as it is dangerous.

Regulation of religious dress has proved controversial in the UK in recent years. Debates about what women (and to a lesser extent men) wear to work and to school have become a proxy for meaningful political engagement of deeper conflicts within British society. The former Home Secretary, John Reid’s  insistence  that in preventing Ms. Eweida from wearing a cross, BA has ‘played into the hands of extremists’ by suggesting that ‘Christians do not have the same rights as other religions’, though exaggerated, hints at deeper difficulties.

Eweida’s is one of a long line of recent cases (in terms of women’s religious dress alone, we can name those brought by Sarika Singh, Shabina Begum, Lydia Playfoot  and Miss X)   which indicate that these emerging ‘culture wars’ are being fought in the courts as much as in the political domain. The Guardian today argues that:

it’s clear we now have a specifically religious litigation culture (what might be called “religitigation”) in which believers and activists attempt by law to extend their rights over others.

 Two good places to keep abreast of developments in the British law of religious dress are the Law and Religion Scholars’ Network Case Database and the Religion Law UK site.

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