The Court of Appeal (Civil Division) handed down judgment in the case of Eweida v British Airways Plc [2010] EWCA Civ 80 on 12th February 2010. The case concerned an appeal against a decision of the Employment Appeal Tribunal (EAT) holding that the respondent’s staff dress code did not indirectly discriminate against the appellant on the grounds of her religion.

In 2004 the respondents introduced a new staff dress code which forbade the wearing of visible neck adornments and so prevented the appellant, a Christian, from wearing with her uniform a small visible cross necklace. Upon her refusal to conceal the necklace the appellant was sent home on 20 September 2006 and remained at home unpaid until 3 February 2007.

Under regulation 3 of the Employment Equality (Religion or Belief) Regulations 2003 SI 2003/1660, a person, A, indirectly discriminates against another person, B, if A applies to B a provision, criterion or practice which he applies equally to persons not of the same religion or belief as B, but which puts or would put ‘persons’ of the same religion as B at a particular disadvantage when compared with other persons and puts B at a particular disadvantage.

Dismissing the appeal and upholding the judgment of the EAT the court disagreed with the appellant’s assertion that the test for indirect discrimination could be met if the appellant alone was placed at a particular disadvantage by the provision. In its natural meaning the word ‘persons’ in regulation 3 requires that some identifiable section of the workforce be shown to be at a disadvantage which is shared by the appellant. In support of this view the court highlighted that Directive 2000/78/EC (as implemented by the 2003 regulations) gave no indication that solitary disadvantage was sufficient to meet the threshold for indirect discrimination. As the appellant’s objection to the policy was purely personal, the code did not put Christians generally at a disadvantage as compared to those employees who were of a different religion or belief.

The court, allowing the respondent’s cross-appeal against the EAT’s decision that had the appellant’s case been sustainable in law the respondents would not have been able to show that the policy was a proportionate means of achieving a legitimate aim, held that as the appellant’s case as presented in the appeal, would have been defeated on justification. The disadvantage to the appellant arose out of her wish to manifest her faith in a particular way and the court, affirming the view of the EAT held that the aim of the code which operated without further objection was undoubtedly legitimate.