Eweida v British Airways Plc
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd,Lord Justice Moses,Lord Justice Maurice Kay,Lord Justice Sedley,Lord Justice Carnwath,Lady Justice Smith |
| Judgment Date | 12 February 2010 |
| Neutral Citation | [2009] EWCA Civ 1025,[2010] EWCA Civ 80 |
| Docket Number | Case No: A2/2008/2984,Case No: A2/2008/2984A |
| Court | Court of Appeal (Civil Division) |
| Date | 12 February 2010 |
[2009] EWCA Civ 1025
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Mr Justice Elias (President), Mr B Beynon and Sir Alastair Graham
ON APPEAL FROM THE READING EMPLOYMENT TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay
Lord Justice Lloyd and
Lord Justice Moses
Case No: A2/2008/2984A
UKEAT/0123/08/LA
Karon Monaghan Q.C. and Mathew Purchase (instructed by Liberty) for the Appellant
Ingrid Simler Q.C. (instructed by Baker & McKenzie LLP) for the Respondent
Hearing date: 24 September 2009
Lord Justice Lloyd:
Introduction
This judgment sets out my reasons for having dismissed an application which, as issued, sought an order that “the respondent is not permitted to recover its costs of this appeal from the appellant”, which would be a protective costs order (PCO). The application notice was issued on 11 March 2009.
The Employment Tribunal at Reading dismissed the appellant's claim that the respondent unlawfully discriminated against her in respect of her religious belief. The Employment Appeal Tribunal dismissed her appeal. The present appeal is against that dismissal. The appellant issued her ET1 claim form on 15 December 2006. The ET issued its judgment to the parties on 7 January 2008, and the EAT gave its judgment on 20 November 2008. The Appellant's Notice to this court was issued on 10 December 2008, and permission to appeal was given by Sedley LJ on 28 January 2009.
In the ET and the EAT the appellant was not, in practice, at risk of having to pay the respondent's costs, and she had the advantage of legal representatives who acted for her gratuitously. In this court she does face a real risk of liability to the respondent for costs if her appeal is not successful. She cannot cope with that risk herself, her assets being enough to disentitle her from public funding (and the protection that follows from that) but not adequate to cover the respondent's costs if she were not successful on the appeal. Hence the application with which we are concerned. Her present legal representatives act under a CFA.
The appellant sought assistance from a number of persons or bodies, including the Equality and Human Rights Commission. The Commission was unwilling to assist her, even after permission to appeal had been granted.
Sedley LJ considered her application for a PCO on paper, and refused it, on 27 April 2009. Later (on 8 May) she put forward a different proposition, namely that the order should limit the amount for which she should be at risk in respect of the respondent's costs to £20,000; an indemnifier had been found who (or which) was willing to cover that liability up to that amount. She did not issue a fresh application notice, though it was described as a revised application. Sedley LJ was prepared to entertain it without any further formality, and to consider it on the papers, with the benefit of submissions from the respondent, including a draft bill of costs. On 21 May he ordered that the respondent's costs recoverable from the appellant be capped at £25,000, including disbursements and VAT. The appellant's indemnifier is said to be willing to cover that amount. The respondent exercised its right to have the application considered at an oral hearing; this judgment is given following that hearing.
Two different powers of the court have to be considered. One is a power to protect a party (almost always a claimant) against liability for the other party's costs: a PCO. The other is a power to make an order imposing a cap on the amount which one party can recover from the other in respect of future costs, known as a costs-capping order (CCO). The basis of the two powers is quite distinct, even though the effect may in some cases be similar, in that a PCO may not always exclude all liability for the other side's costs; it may limit liability to a stated amount.
A PCO is available in public law litigation, where the claimant has no (or virtually no) private interest in the matter at issue, and where a liability for the other side's costs would be likely, in effect, to prevent the claimant from bringing, or continuing, the proceedings at all, and thereby prevent a matter of public interest and importance being considered by the court.
A CCO is made on the basis that the litigant is at risk as to the other side's costs, in the ordinary way, but seeks to prevent that liability from being inflated by the incurring of disproportionate amounts in respect of costs. Since 6 April 2009 such orders have been regulated by the rules: CPR 44.18–20.
The appellant's claim
In the ET the appellant, who worked for the respondent on its check-in desks, complained of having not been allowed to wear a cross, denoting her Christian faith, in such a way as to be visible outside her uniform. On 20 September 2006 she was told that, because of the respondent's then uniform policy, she must not wear such a cross in a manner which was visible; she refused to conceal the cross and went home. She returned to work on 3 February 2007, the respondent having in the meantime reviewed its uniform policy and adopted a changed policy, with effect from 1 February 2007, under which she was allowed to wear a cross in a visible manner. She had by then already issued her claim in the ET. During the period of her absence from work she was not paid by the respondent, though she was able to earn money from some other sources.
In the ET1 she alleged direct and indirect discrimination on grounds of religion, and harassment. She claimed, in effect, for her pay withheld during her absence from work which, it was common ground, she was entitled to (subject to set-off of sums earned elsewhere) if she succeeded on discrimination but not otherwise. The hearing lasted 6 days in November 2007, with 15 witnesses being called. In its reasons for decision, extending over 44 pages, the ET rejected all aspects of her claim, though it also said that it would not have held the respondent's policy to be justified if there had been discrimination.
Although the appellant did not adduce evidence at the ET on remedy, she had identified her claims in an agreed list of issues for the Tribunal as being for loss of earnings (£3,906), injury to feelings, in the band £15,000 to £25,000, aggravated damages of £50,000 and a 50% uplift in the award under section 32(3) of the Employment Act 2002, together with a declaration as to discrimination, and recommendations as to the respondent's conduct including making a full apology to her. In October 2007 the respondent made an open offer to her to pay her £8,500 and to pay £50,000 to UNICEF in order to settle the claim. She rejected that offer.
The appellant appealed to the EAT only against the finding as regards indirect discrimination. The EAT dismissed her appeal, though on somewhat different grounds, attributable (according to the submissions of Ms Simler Q.C. for the respondent, though this is disputed by Ms Monaghan Q.C. for the appellant) to a change in the way her case was presented. In the ET the case was dealt with on the footing that the appellant's case was that the uniform policy created a barrier for her which prevented her from working for the respondent under her employment contract. Her claim failed because there was no evidence that the rule operated as a barrier for Christians generally, or for anyone other than the appellant herself. The Tribunal said at paragraph 33.5: “there was no evidence of Christians failing to apply for employment, being denied employment if they applied for it, or failing to progress within the employment of the respondent”. It followed that the provision did not put Christians at a particular disadvantage. They said that it followed that the claimant was not put to a disadvantage. As the EAT said at paragraph 16 that must be understood as meaning that she did not suffer a relevant disadvantage, which had to be one suffered by her as a member of a group.
In the EAT the case was argued on the basis that there did not have to be a barrier, because a particular disadvantage could be suffered by an employee as a result of the imposition of the policy, even if the employee was prepared to comply with it, and that on that basis the Tribunal should have concluded that there were others who shared the appellant's views. The EAT held that the appellant had to show that relevant disparate impact was suffered by others sharing the same religion or belief. For the appellant it was argued that it should be sufficient if one other person besides the appellant felt the same as the appellant, and that it must be supposed that there would be at least one other person who did hold the same views and who would be placed at a similar disadvantage as the appellant if that person were to be employed by the respondent in circumstances in which the uniform policy applied to him or her. The EAT described this as raising a fundamental issue concerning the scope of indirect discrimination (paragraph 50). The EAT rejected the argument.
I do not need to go further into the substance of the point on the appeal to this court. The EAT's comment on its importance, which I have just mentioned, together with Sedley LJ's observation, when granting permission to appeal, that the issue was of general importance, is sufficient for the purposes of the issues arising on the costs application.
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