Personal Religious Beliefs in the Workplace: How Not to Define Indirect Discrimination
| Author | Nicholas Hatzis |
| DOI | http://doi.org/10.1111/j.1468-2230.2011.00847.x |
| Date | 01 March 2011 |
| Published date | 01 March 2011 |
CASE NOTE
Personal Religious Beliefs in the Workplace:
How Not to De¢ne Indirect Discrimination
Nicholas Hatzis
n
In cases concerning indirect religious discrimination the claimant must demonstrate that an
otherwise neutral measure has caused her to su¡er a particulardi sadvantage because of her reli-
gion. In EweidavBri tish A irways the Court of Appeal held that personal religious beliefs which are
not part of o⁄cial religious dogmacannot be relied upon as the basis for a claim of indirect dis-
crimination. I discuss, ¢rst, the reasoning of the Court of Appeal in Eweida; then I examine the
wayperso nal religious beliefs havebee n treated in other cases in Britain and i n the United States;
¢nally,I place the issue in a wider human rights framework.
Contemporary anti-discrimination laws usually prohibit both direct and indirect
discrimination. In its directform, discrimination occurs when a person is singled-
out and targeted for negative or less favourable treatment because he has a
particularcharacteristic. Indirect discrimination, on the other hand, is about neu-
tral, or even benign, measures e¡ect of which on people having a particular char-
acteristic is more burdensome than their e¡ect on people who don’t have it. The
focus of indirect discrimination law is on the disparate impact a policy may have
on certain people in comparison to the impact on others. In Eweida vBritish Air-
ways
1
(hereafter: Eweida) the Court of Appeal explicitly rejected the idea that soli-
tary believers whose religious practices are not widespread in the relevant
religiouscommunity or constitute part of the relevant religious dogma can claim
the protection of laws prohibiting indirect discrimination.
EWEIDAVBRITISH AI RWAYS AT THE COURT OF APPEAL
In 2004 British Airways introduced a dress code according to which female
employees in customer-facing posts had to wear, as part of their uniform, an
open-neck blouse. The code prohibited the wearing of any visible neck adorn-
ments,i ncluding religious symbols. Eweida concerned a devout, practising Chris-
tian whowas sent home when she appearedwith a small cross on a necklace. She
claimed that she had su¡ered indirect discrimination since the dress code, while
n
Lady MargaretHall, Oxford; City UniversityLondon. I am indebted to George Letsas, Ian Loveland
Ronan McCreaand an a nonymousMLR referee for commentson a draft.An earlier version was pre-
sented at a Beaufort Seminar at LadyMargaret Hall. I am grateful to the audience on that occasion and
especially Alexandra Braun, Allan Doig, Sionaidh Douglas-Scott, Frances Lannon, Graham Oddie,
Gillian Peele and Richard Sommers for discussion and suggestions.
1[2010] EWCA Civ80; [2010]ICR 890.
r2011The Author.The Modern Law Review r2011The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2011) 74(2) 287^305
being a neutral policy pursuing the legitimate aim of creating a corporate
image, placed her at a particular disadvantage in relation to the exercise of her
religion. The Court of Appeal held that Ms Eweida had not su¡ered indirect
discrimination on the grounds of her religious beliefs, and that even if indirect
discrimination had occurred, BA’s policy could be justi¢ed.
Writing for a unanimous court Lord Justice Sedley identi¢ed Regulation 3 of
the Employment Equality (Religion or Belief) Regulations 2003 as the control-
ling provision; it stipulates that a measure which applies equally to the workforce
regardless of individual religious a⁄liation is, nevertheless, indirectlydiscrimina-
tory if it‘puts or would put personsof the same religion orbelief [as the claimant]
at a particular disadvantage whencompared with otherpersons’.
2
He quoted with
approval the ¢nding of the EmploymentTribunal that the claimant had failed to
demonstrate that Christians as a group had been placed at a disadvantage, and
proceededto discuss whether the Regulation’s prohibition of indirectdiscrimina-
tion also covers a single individual. He held that itdoes not.
The point at the centre of his analysis was that Regulation 3 refers to‘persons’
and not ‘a person’, an approach also followed by Directive 2000/78/EC which the
2003 Regulations implemented.The Directive de¢nes indirect discrimination in
the following te rms: ‘where an apparently neu tral provision, criterion or practice
wouldput persons havinga particular religion or belief,a particular age, or a par-
ticular sexual orientation at a particular disadvantage compared with other per-
sons’. Sedley LJ held that the Directive did not intend‘that solitary disadvantage
should be su⁄cient’;
3
what both the Directive and Regulation 3 require ‘is that
some identi¢able section of a workforce, quite possibly a small one, must be
shown to su¡er a particular disadvantage which the claimant shares’.
4
The use of
the conditional in both provisions (‘would put persons .. . at a particular disad-
vantage’) did not mean that a court is required to examine whether a claimant
could belong to a hypothetical peer-group which could have su¡ered the same dis-
advantage by the application of the neutral measure in question. Its purpose was
to include in the real dis advantaged groupboth workers to whom the measure had
actually be en applied as well a s those to whom it potentially applies. In oth er
words, the conditional does not relieve the claimantof the obligation to showthat
an actual group of employees, as opposed to a soli tary individual, is disproportio-
natelyburdened.
But even if thedress code constituted aform of indirect discrimination,Sedley
LJ continued, it was onewhich was objectively justi¢ed. Again, the consideration
whichtipped the balance in favourof the defendants wasthat the claimantwas the
only employee who had complained of the prohibition of wearing the cross: ‘it
was an entirely personal objection, neither arising from any doctrine of her faith
2Section 19 of the EqualityAct 2010 also prohibitsi ndirectdiscrimi nation. Most of the Act’s provi-
sions came into force on 1October 2010. As K. Monaghan QC,‘The Equality Bill: A Sheep in
Wolf’sClothing or Something More?’ [2009] EHRLR 512,528 has noted the prohibition of indir-
ect discrimination is probably the ¢rst real harmonising provision, giving a de¢nition of the pro-
hibited conduct which matches the one found in EU law and its implementing domestic
legislation.
3Eweidan1aboveat[15].
4ibid at [15].
Personal Religious Beliefs in theWorkplace: HowNot to De¢ne Indirect Di scrimination
288 r2011The Author.The Modern Law Review r2011The Modern Law Review Limited.
(2011) 74(2) 287^305
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