01-03-2010
BA staff dress code not discriminatory
Hot on the heels of a case we featured in last month’s bulletin, where a police dress code was found not to be discriminatory, another decision in favour of the employer has emerged from the courts.
Here British Airways was on the receiving end of claims from one of its employees, Mrs Eweida, a practising Christian who worked as a member of the airline’s check-in staff.
BA’s dress code allowed employees to wear jewellery, provided it was not visible. Items deemed to be a mandatory religious requirement, which could not be concealed, could be permitted by management.
Mrs Eweida refused to conceal a silver cross she wore on a necklace and was, therefore, suspended. She subsequently brought a number of claims against the airline, including direct and indirect discrimination on the grounds of her religion.
For an indirect discrimination claim to succeed there must be a “provision, criterion or practice”.
• applied to all employees;
• which puts people who share the claimant's religion/belief at a disadvantage compared to other people; and
• which is not a proportionate means of achieving a legitimate aim, i.e. it cannot be justified.
The claim worked its way through the employment tribunal system but was dismissed by the Court of Appeal.
The court agreed that BA’s dress code was a provision, criterion or practice. However, it stated that there must be evidence of a group being at a disadvantage, i.e. that the policy disadvantaged Christians as a group. In this case, there was evidence that no-one but Mrs Eweida felt disadvantaged. The court made it clear that indirect discrimination was not intended to give protection to one single individual and, in any case, the dress code could be justified.
Cases such as these are fact specific. However, there seems to be a growing trend for the courts to look at staff dress codes pragmatically.
Employers should still ensure that policies relating to dress are not discriminatory on the grounds of sex, race, religion, disability, etc.
Here British Airways was on the receiving end of claims from one of its employees, Mrs Eweida, a practising Christian who worked as a member of the airline’s check-in staff.
BA’s dress code allowed employees to wear jewellery, provided it was not visible. Items deemed to be a mandatory religious requirement, which could not be concealed, could be permitted by management.
Mrs Eweida refused to conceal a silver cross she wore on a necklace and was, therefore, suspended. She subsequently brought a number of claims against the airline, including direct and indirect discrimination on the grounds of her religion.
For an indirect discrimination claim to succeed there must be a “provision, criterion or practice”.
• applied to all employees;
• which puts people who share the claimant's religion/belief at a disadvantage compared to other people; and
• which is not a proportionate means of achieving a legitimate aim, i.e. it cannot be justified.
The claim worked its way through the employment tribunal system but was dismissed by the Court of Appeal.
The court agreed that BA’s dress code was a provision, criterion or practice. However, it stated that there must be evidence of a group being at a disadvantage, i.e. that the policy disadvantaged Christians as a group. In this case, there was evidence that no-one but Mrs Eweida felt disadvantaged. The court made it clear that indirect discrimination was not intended to give protection to one single individual and, in any case, the dress code could be justified.
Cases such as these are fact specific. However, there seems to be a growing trend for the courts to look at staff dress codes pragmatically.
Employers should still ensure that policies relating to dress are not discriminatory on the grounds of sex, race, religion, disability, etc.
