Legal

Why the British Airways crucifix case isn’t over yet

17 Jan 2019 By Will De Fazio-Saunders

Will De Fazio-Saunders examines the continuing saga of a Christian employee’s legal fight and provides tips for employers on formulating or revising a company dress code

A Christian British Airways (BA) employee whose human rights were violated when the airline prohibited her from wearing a cross at work is again suing the airline after, she alleges, the company subjected her to detriments and harassment as a result of her earlier claims. 

Nadia Eweida worked for BA as a member of its check-in staff. The airline refused in 2006 to allow Ms Eweida to wear a plain silver cross over her uniform as a personal expression of faith, on the basis it was contrary to its uniform policy. 

The employment tribunal rejected Ms Eweida’s claim of indirect religious discrimination, and her appeals to the Employment Appeal Tribunal and Court of Appeal were dismissed. However, the European Court of Human Rights (ECtHR) in 2013 upheld Ms Eweida’s complaint that her right to manifest her belief – under Article 9 of the European Convention on Human Rights – had been violated. 

Ms Eweida is now claiming that the airline subjected her to unlawful detriments because of her earlier legal action. These include being denied a break after experiencing strain on her eyes following an operation; she received a written warning when she was told to cover a flight gate and refused. Ms Eweida also claims a further uniform policy requiring female staff to tuck their cravats into their blouses, meaning she had to wear her cross on top of her cravat, was crafted with her in mind. 

If Ms Eweida is to succeed in her victimisation claim she will need to prove that she was subjected to a detriment because she did a protected act, such as bringing proceedings under the Equality Act 2010 (or the earlier legislation it replaced, as is likely the case here). 

For Ms Eweida’s harassment claim to succeed, she will need to persuade the tribunal that she was subjected to unwanted conduct related to a protected characteristic (likely her religion) which had the purpose or effect of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. 

If her whistleblowing detriment claim is to be upheld, Ms Eweida will need to establish that she was subjected to a detriment because she made a protected disclosure, such as that BA failed to comply with its legal (eg human rights) obligations. 

While these allegations are an interesting twist in Ms Eweida’s story, her claims – whatever their outcome – are unlikely to prove as groundbreaking as the ECtHR decision. They do not appear to raise any novel legal arguments or seek to challenge existing precedent. They are therefore unlikely to become leading cases in victimisation, harassment or whistleblowing law. 

However, if the claims do succeed they will offer a further cautionary tale to employers (in the context of a relatively high-profile case) of the consequences of subjecting employees to detriments as a result of them exercising their employment law rights. 

Tips for employers on formulating or revising a dress code

When formulating or revising a dress code, employers should ask themselves the following questions to help mitigate the risk of facing religious discrimination claims:

  • Is a proposed dress code potentially indirectly discriminatory? Does it put persons of a particular religion or belief at a particular disadvantage? (eg does it prohibit the wearing of certain items, such as religious headwear or jewellery?)
  • If so, can it be objectively justified? Is it a proportionate means of achieving a legitimate aim? (eg is it necessary for health and safety reasons? Would the prohibited dress interfere with an employee’s work?). If a potentially discriminatory provision cannot be objectively justified, employers should consider amending the dress code to avoid potential claims of religious or belief discrimination. 

Will De Fazio-Saunders is an associate at Barlow Robbins LLP

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