Can An Employer's Refusal To Allow The Manifestation Of Beliefs In The Workplace Be Seen As A Step Too Far?

UK laws have recently been criticised by the European Courts for not striking the correct balance between the protections of an employee's right to manifest her religion in the workplace, against interests of others.

Mrs E, a practising Christian, started to wear a cross visibly around her neck as a sign of commitment to her faith. Her employer, British Airways, which imposed strict uniform guidelines, refused to allow her to wear the cross openly insisting that at all times it should be covered up and hidden under a cravat. The airline accepted that religious clothing which could not be concealed such as turbans, hijabs and headscarves may be permitted providing that the clothing was a mandatory religious requirement and in keeping with airline colours and corporate branding. Mrs E refused to conceal the cross and was not allowed to return to work until she chose to comply with the airline's request. The airline did, however, offer her a re-deployed role without customer contact which would not have required her to wear a uniform.

Mrs E refused to accept the alternative role and chose to remain at home (without pay) until such time as the airline was prepared to alter its uniform policy. She remained at home for five months. The airline did eventually alter its policy but not in time to prevent Mrs E from bringing a claim.

Interestingly, the Employment Tribunal agreed with the airline's position; it held that the visible wearing of a cross was not a mandatory requirement of the Christian faith but simply her own personal choice. Mrs E had failed to establish that the uniform policy had put Christians generally at a disadvantage (as was necessary to establish a claim of indirect race discrimination on the grounds of religion). This decision was supported on her appeal to the Employment Appeal Tribunal.

On Appeal it was concluded that the concept of indirect discrimination referred to the potential discrimination of a "defined group" and that Mrs E had failed to establish any evidence of a group disadvantage; in fact the only person affected was her.

Still not happy with the decision, Mrs E pursued the matter to the Court of Appeal which dismissed her appeal and endorsed the approach of the Employment Appeal Tribunal. It decided that for indirect discrimination to be established an employer must make general statements which have a disparate adverse impact on a group of persons. The Court placed emphasis on the fact that noone had ever...