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Published online by Cambridge University Press: 28 April 2009
The decision in Eweida v British Airways that there was no discrimination where a Christian member of check-in staff was not allowed to wear her cross visibly at work has received much publicity, despite the fact that BA changed its policy before the case even reached the tribunal. The case raises many questions about the equal treatment of religions and the question of whether religious practices must be mandatory before they are protected, issues which have been discussed elsewhere in this Journal. The focus of this article, however, is the implications of the decision for the application of indirect discrimination to those who hold minority religious views.
1 Eweida v British Airways plc [2008] UKEAT 0123_08_2011.
2 See the case note on the employment tribunal decision: Eweida v British Airways plc (2008) 10 Ecc LJ 256, ET. See also I Leigh, ‘Recent developments in religious liberty’, (2009) 11 Ecc LJ 65, and R Sandberg, ‘Underrating human rights: Gallagher v Church of Jesus Christ of Latter-Day Saints (2009) 11 Ecc LJ 75. A case note on the employment appeal tribunal decision is at p 240 of this issue.
3 Contrast R (on the applications of Watkins-Singh) v Governing Body of Aberdare Girls High School [2008] EWHC 1865, noted in (2009) 11 Ecc LJ 126–127.
4 The Employment Equality (Religion or Belief) Regulations 2003, regulation 3(b). Emphasis added.
5 European Union, Council Directive 2000/78/EC, Article 2.2.b.
6 Bamforth, N, Malik, M and O'Cinneide, C (eds) Discrimination Law: theory and context (London, 2008), pp 307–308Google Scholar.
7 Eweida v British Airways plc, para 29.
8 For discussion of recent case law on the manifestation of belief, see Leigh, ‘Recent developments in religious liberty’.
9 Human Rights Act 1998, s 3(1).
10 See Leigh, ‘Recent developments in religious liberty’ for further discussion of the restrictive interpretation of the right to manifest religion in the ECHR jurisprudence.
11 Azmi v Kirklees MBC [2007] ICR 1154.
12 Eweida v British Airways plc, para 59.
13 Ibid, para 61.
14 See Griggs v Duke Power (1971) 410 US 424, and Bamforth, Malik and O'Cinneide, Discrimination Law.
15 See for example, Moon, G and Allen, R, ‘Substantive rights and equal treatment in respect of religion and belief: towards a better understanding of the rights, and their implications’, (2000) European Human Rights Law Review 580–601Google Scholar.