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Banning the right to wear a cross at work

 

Image: artemisphoto / FreeDigitalPhotos.net

An interesting human rights case is making its way to the European Court of Human Rights, where the British government is set to defend the right of employers to ban employees from wearing the cross at work as it is not a “requirement” of the Christian faith.

According to the Mail Online, Nadia Eweida, a former British Airways (BA) worker is taking her case to the European court in Strasbourg after facing disciplinary action (unpaid suspension) at work in 2006 for refusing to take off her cross necklace, which the employer claimed breached BA’s uniform code. The dress code forbids the wearing of visible neck adornment; however, it does allow neck adornment to be worn underneath the uniform.

Eweida claimed that BA applied a double standard by allowing employees of other faiths (Sikhs and Muslims) to wear religious garments at work such as hijabs and turbans. BA argued that there is no discrimination between faiths. The policy recognizes that it is not practical for some religious symbols—such as turbans and hijabs—to be worn underneath the uniform. Moreover, these symbols are generally accepted as required by their respective faiths; wearing the cross is not a necessary observance of the Christian faith.

Eweida initiated and pursued BA’s grievance procedures.

However, after intense public media and backlash, BA changed its policy to allow employees to wear a symbol of faith “openly” on a lapel pin, “with some flexibility … to wear a symbol of faith on a chain.”

After returning to work and despite the change in policy, Eweida sued the airline for religious discrimination at the Employment Tribunal and lost. She appealed at the Employment Appeal Tribunal and lost again.

The tribunal concluded that Eweida had failed to show that Christians had been placed at a disadvantage. They said:

The tribunal heard evidence from a number of practising Christians in addition to the claimant. None, including the claimant, gave evidence that they considered visible display of the cross to be a requirement of the Christian faith; on the contrary, leaders of the Christian Fellowship had stated that, “It is the way of the cross, not the wearing of it, that should determine our behaviour”. (R1, 780). The claimant’s evidence was that she had never breached the uniform policy before 20 May 2006, and that the decision to wear the cross visibly was a personal choice, not a requirement of scripture or of the Christian religion. There was no expert evidence on Christian practice or belief (although that possibility had been canvassed at the PHR in June).

There was no evidence in this case that might support any suggestion that the provision created a barrier for Christians, and ample evidence to the contrary. Mr Marriott stated that this was the only case which he had encountered of a Christian complaining of the uniform policy. Certainly 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.

Eweida then launched an unsuccessful appeal to the Court of Appeal (Civil Division) on substantive grounds. The question in this appeal was whether, by adopting a staff dress code which forbade the wearing of visible neck adornment and so prevented Eweida from wearing with her uniform a small, visible cross, British Airways indirectly discriminated against her on grounds of religion or belief. The Court of Appeal upheld the Employment Appeal Tribunal’s ruling, saying that BA’s decision to ban necklaces with a cross was justified. The decision is clearly explained below, but the last paragraph (emphasized in bold) says it all:

Indirect discrimination, if it occurs, is not necessarily wrongful: the defendant employer may show that, in spite of its negative effect, the provision, criterion or practice, despite its unequal impact, constitutes a proportionate means of achieving a legitimate aim.

The employment tribunal explained why they would not have found the material requirement of the dress code justified if they had found that it placed Christians in general at a disadvantage. They considered that the aim of the uniform code was undoubtedly legitimate—a finding which requires no explanation. But they took the view that the prohibition of visible symbols was not proportionate because—with the admitted benefit of hindsight—it seemed to them that the eventual review which resulted in a relaxation of the code to permit the visible wearing of religious and other symbols could have taken place sooner had the (assumed) discriminatory impact of the code been analysed before November 2006.

They concluded:

We would not consider the requirement proportionate because it fails to distinguish an item which represents the core of an individual’s being, such as a religious symbol, from an item worn purely frivolously or as a piece of cosmetic jewellery. We do not consider that the blanket ban on everything classified as “jewellery” struck the correct balance between corporate consistency, individual need and accommodation of diversity. Ms Simler would have pressed her cross-appeal on justification even if the original claim of generic discrimination against Christians had been maintained. What has now to be justified is a rule which for some 7 years had apparently caused Ms Eweida, along with the rest of BA’s staff, no known problem. Nor had it done so as a result of the introduction of the Macdonald uniform in 2004. When the issue was raised by her, it was conscientiously addressed—not perhaps as speedily as it might have been, but then it had been raised by a single employee and had no apparent urgency. It was Ms Eweida who decided (on whose advice we do not know) to refuse BA’s accommodating offer to move her without loss of pay to work involving no public contact and instead to stay away from work and claim her pay as compensation.

In the situation now relied on by Ms Monaghan, in my judgment no tribunal could find that BA’s response was such as to make the introduction or maintenance of the rule disproportionate, either before or after the point of time at which the issue was raised by Ms Eweida. On the evidential basis now adopted on her behalf, it was an entirely personal objection, neither arising from any doctrine of her faith nor interfering with her observance of it, and never raised by any other employee. She had twice made her point between May and September 2006 not by seeking a revision of the code but by reporting for work in breach of it. She had twice been warned; she had lodged a formal grievance on 13 June; but without waiting for it to be resolved she again breached the code and on this occasion, 20 September 2006, was sent home.

The tribunal’s findings about BA put this history in perspective:

We accept that if invited to consider an amendment to the policy on religious grounds, the respondent generally saw the matter through the perspective of diversity, and sought to accommodate staff diversity where appropriate.

We find that other than the claimant every individual who requested accommodation of the policy observed existing policy until a change was authorised. The claimant was the only employee who ever raised an issue under the [Macdonald] policy and insisted on a departure from the [Macdonald] policy while the matter was still under consideration.

Moreover, the tribunal made this finding:

I am bound to say that, in the light of these and other findings of the tribunal, I have considerable difficulty in seeing how they could hold that a previously unobjectionable rule had somehow become disproportionate once the claimant had raised the issue, even on the assumption that it was a rule that disadvantaged Christians as a group within the workforce. This is especially so in the light of Ms Simler’s well-founded submission that the tribunal’s reference to “the core of an individual’s being” has no place in the present argument. Neither Ms Eweida nor any witness on her behalf suggested that the visible wearing of a cross was more than a personal preference on her part. There was no suggestion that her religious belief, however profound, called for it.

But findings of this kind by an expert tribunal are entitled to considerable respect on the part of appellate courts, and it may be that despite my reservations about it interference would not have been justified. It is, however, no longer relevant. On the footing on which the indirect discrimination claim is now advanced, namely disadvantage to a single individual arising out of her wish to manifest her faith in a particular way, everything in the tribunal’s findings of fact shows the rule, both during the years when it operated without objection and while it was being reconsidered on Ms Eweida’s instigation, to have been a proportionate means of achieving a legitimate aim. The contrary is not in my view arguable.

It follows that, were Ms Monaghan’s new case on indirect discrimination to be sustainable in law, it would be defeated by BA’s case on justification. This case has perhaps illustrated some of the problems which can arise when an individual (or equally a group) asserts that a provision, criterion or practice adopted by an employer conflicts with beliefs which they hold but which may not only not be shared but may be opposed by others in the workforce. It is not unthinkable that a blanket ban may sometimes be the only fair solution.

Eweida tried appealing the case to the British Supreme Court but the Court refused leave to appeal. Eweida recently announced her intention to seek redress in an international forum. The European Court of Human Rights in Strasbourg is an international court set up in 1959. It rules on individual or state applications alleging violations of the civil and political rights set out in the European Convention on Human Rights. Since 1998 it has sat as a full-time court and individuals can apply to it directly. The court is not part of the European Union.

Does Christianity demand that its adherents wear a cross? Does Islam demand women cover their heads? Several would say both faiths do not, and others would disagree. I don’t think anybody can really answer anymore what counts as a core Christian or Islamic observance (among others). I think what bothers people more is not the symbol itself but what it represents, what they connect it too? E.g., conversion, evangelism, oppression, submission, etc. Maybe what we fear is how these symbols can influence us and others.

But the better question would be, should religious symbols take precedence over a workplace dress/uniform policy? Should employees not be allowed to wear anything at work, or decorate their workspace with symbols that shows what religion they belong to?

I’ll let you answer that.

Yosie Saint-Cyr
First Reference Human Resources and Compliance Managing Editor

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Yosie Saint-Cyr

Managing Editor at First Reference Inc.
Yosie Saint-Cyr, LL.B., is a trained lawyer called to the Quebec bar in 1988 and is still a member in good standing. She practiced business, employment and labour law until 1999. For over 15 years, Yosie has been the Managing Editor of the following publications, Human Resources Advisor, Human Resources PolicyPro, HRinfodesk and Accessibility Standards PolicyPro from First Reference. Yosie is one of Canada’s best known and most respected HR authors, with an extensive background in employment and labour across the country. Read more
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