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Has Ms Eweida’s right to wear a cross resulted in further discriminatory treatment?

14 January 2019

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. In 2006, the airline refused to allow Ms Eweida to wear a plain silver cross over her uniform as a personal expression of faith, on the basis that 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, in 2013 the European Court of Human Rights (“ECtHR”) upheld Ms Eweida’s complaint that her right to manifest her belief – under Article 9 of the European Convention on Human Rights (“ECHR”) – had been violated.

The Strasbourg court held that Ms Eweida’s desire to wear a cross visibly was motivated by a desire to manifest her Christian belief. BA’s refusal to allow her to do so was therefore an interference with her Article 9 rights. The question was whether the UK sufficiently complied with its obligation to secure Ms Eweida’s ECHR rights in UK law, striking a fair balance between her rights and the airline’s. The ECtHR found that the Court of Appeal did not strike a fair balance, according too much weight to the company’s wish to project a certain corporate image.

It was relevant that the cross was discreet and would not have detracted from her professional appearance or infringed the interests of others. There was also no evidence that the wearing of authorised items of religious clothing, including hijabs and turbans, negatively impacted BA’s brand. By a majority of five to two, the court held that the UK had therefore breached its positive Article 9 obligations in failing to provide Ms Eweida with a remedy and thereby protecting her right to manifest her religion. The case was significant because, inter alia, it confirmed that corporate image is likely to be insufficient justification for preventing employees from discreetly manifesting their religious beliefs.

Ms Eweida is now claiming that the airline has 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 and receiving 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.

The writer has not seen Ms Eweida’s ET1 or Particulars of Claim, but if she 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 – in this case, that protected act is likely to be the bringing of 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 (e.g. human rights) obligations.

For further advice on Employment Services, please call us on 01483 543210 or alternatively email David Ludlow davidludlow@barlowrobbins.com

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