The Equality Act 2010, Eweida v British Airways - Essay Example

The Equality Act al Affiliation The Equality Act The Equality Act came into existence on the 1st of October in the United Kingdom. This Act of Parliament sought to conjoin 116 pieces of different legislation into a single Act. In entirety, the new Equality Act offers a legal framework for the advancement of equality for all people and the protection of individuals’ rights. The Act works to protect the people from unfair treatment, and advocates for a fair and just society1. The Equality Act put together nine main separate pieces of legislation; the Equal Pay Act of 1970, the Race Relations Act of 1976, the Equality Act of 2006 (part 2), the Equality Act (Sexual Orientation) of 2007, the Disability Discrimination Act of 1995, the Sex Discrimination Act of 1975, the Employment Equality (Sexual Orientation) Regulations of 2003, the Employment Equality (Age) Regulations of 2003 and the Employment Equality (Religion or Belief) Regulations of 20032. This paper shall however look into the protection provided by the Equality Act to individuals who face restrictions in expressing their belief or religion by dress codes and uniform rules. This Act was changed to cover groups that had not been covered by previous legislation, but which have faced discrimination of based on their religion. The Equality and Human Rights Commission was formed to spearhead the implementation and enforcement of the provisions of the Equality Act. The Equality Act of 2010 protects individuals who have to dress according to their religion and beliefs in the work place. According to the EHRC website, it is against the law for employers to discriminate against a section of their workers by requiring them to modify their personal appearance and dress in a particular manner. However, the Act does not prevent employers from having a specific dress code for their employees to be worn at the work place. Employers are required to apply their policies on the matter of dress codes in a way that will not directly discriminate against a worker or indirectly discriminate against a worker and other people who might be sharing the same protected characteristic with them, unless the requirements for a particular dress code can be justified objectively. It is imperative to note that dress code regulations and restrictions, including hairstyles, may be justifiable for safety and health reasons or other reasons that may be considered as important by the ethos of the organization. For instance, an employer may require that long hair be tied back in order to avoid exposure to harm from machinery in an organization that has an industrial plant. Imposing rules and applying them among all members of staff may amount to indirect discrimination against workers who subscribe to a particular religion or belief. For instance, an establishment may have a policy that prohibits the employees from keeping long beards. However, there may be members of staff whose beliefs or religion may prohibit them from having to be clean shaven. In such cases, the employer is prevailed upon by the Equality Act to avoid indirect discrimination of such staff members. A measure like the provision of beard nets to such staff members could help avoid such discrimination. The same applies for establishments that have banned jewellery and items of clothing yet in one way or another if some employees were stopped from wearing them, they and others that share the same beliefs may be put at a disadvantage in comparison to other members of staff3. It is important to recall that claims of such beliefs have to be objectively justified. Grainger Plc and others v Nicholson (2010) This is a case law that falls under UK employment discrimination cases. This case concerns the protection of belief and religion. In the case, Mr Nicholson was made redundant from the company Grainger Plc. Grainger Plc. is the largest listed specialist landlord company in the United Kingdom. Mr Nicholson claimed that he was put up for redundancy because of his belief in climate change and claimed unfair dismissal and discrimination along the lines religion and beliefs4. He made an argument that his belief in climate change was a philosophical belief and fell within the provisions of the Employment Equality (Religion or Belief) Regulations of 2003 section 2(1) (b). He argued that his belief should be construed in relation to the ECHR article 9 and protocol 1 article 2. Mr Nicholson claimed that his belief on climate changes affected his normal life and the way he moved about. One argument by Grainger Plc. was that if Mr Nicholson’s beliefs qualified as a philosophical belief, then the absence of such belief ought to be protected too by the law. In the judgement, it was held that Mr Nicholson’s belief in climate change is a protected belief as it qualifies to be termed as a philosophical belief. The employment judge posited that Mr Nicholson had beliefs that gave rise to the kind of moral order that was advocated for my most religious organizations. The democratic society and elements of dignity gave indications that Mr Nicholson’s beliefs were not in contravention of the provisions of the law, and placed it upon the ECHR to determine jurisprudence. The Employment Appeal tribunal held that support for a particular political party may not hold as a philosophical belief. However, belief in political philosophies like Marxism, socialism, free market capitalism and communism may qualify to be termed as philosophical beliefs. Further, the EAT outlined in its judgement that a homophobic or racist political philosophy may not be regarded as a philosophical belief as such belief may not pass as worthy of respect in a democratic society and not compatible with human dignity5. In accepting that philosophical beliefs could have their basis on science and scientific conclusions, an example of Darwinism was floated by the EAT saying that it must clearly have the capability of being a philosophical belief. The presence of a positive philosophical belief is not dependent on a negative philosophical belief. The genuineness of Mr Nicholson’s beliefs would still have to be examined, although the tribunal made the decision that Mr Nicholson had brought forward valid and protected grounds. Eweida v British Airways (2010) The case between Eweida and British Airways was closely followed and widely reported by the media in the United Kingdom. This interest emanated from various groups which argued that discrimination against Christians was rife in the UK, and that there was favouritism towards some faiths. This case is a UK labour law case that concerned a public disagreement between British Airways and an employee over the uniform policy that the airline had introduced. Nadia Eweida worked at British Airways. She was a Christian employee who wore a necklace with a cross on it. She was at one point asked by the management to cover up the necklace that showed a Christian cross. Eweida refused to obey such orders, in addition to refusing to be moved to a position where she did not need to cover the necklace up from view by the public. In doing so, Eweida was sent on unpaid leave by the management. Eweida had been wearing her necklace on the outside of her official uniform. This was apparently in contravention to the requirements of British Airways’ policy on jewellery. She opted to seek legal redress in court and sued her employer for religious discrimination6. There was a public debate about this case, with some Christian organizations accusing the British Airways of applying double standards, considering the fact that staff members who subscribe to Islam and Hindu were not restricted in their wearing of religious garments at their places of work as the covering up of such attire is not practical. Despite the fact that some faiths require that their members put on certain garments, British Airways did not consider the wearing of a cross chain as a necessary requirement in general Christian practice. Eweida lost the appeal against her employer in November 2010, but vowed to oppose the uniform policy of the British Airways as she wished to continue wearing the cross as a manifestation of her religion; Christianity. Arguments against Eweida’s position, particularly by the National Secular Society, were that the prohibition of staff members who were handling luggage from wearing jewellery on the outside of their uniforms was a necessary measure, and that Eweida was only attempting to evangelize her place of work. British Airways has been having the same uniform policy for a long time, and there had been no incidences of discomfort with the same policies by the other members of staff. The company however bowed to pressure from interest groups and announced their decision to allow staff members to wear a lapel badge. This provision was not satisfactory to Eweida, and she opposed it. This case even drew the attention of the then British Prime Minister, Mr Tony Blair. He suggested that British Airways did not need to participate in this argument, and ought to ‘do the sensible thing’ and allow for the cross to be worn at the workplace. British Airways later announced that the company would allow staff members to wear symbols of their faith on lapel pins openly and with some flexibility, on a chain, in the future. The Airline refused to pay Eweida for the period she was not at work. She lost the case against the British Airways after rejecting an out-of-court settlement. The judgement stipulated that Eweida had gone against the regulations of her employer without good cause. The Supreme court refused to hear her case and she opted to appeal at the highest court of appeal applicable to the laws of the UK; the European Court of Human Rights7. She filed a case against the UK government for not providing domestic law in order to protect her rights instead of protecting the British Airways. Her case was joined with three others namely Lillian Ladele and Gary Mcfarlane who refused to wed and advice gay couples respectively in their capacities as registrar and relationship counsellor due to faith issues, and Shirley Chaplin whose case was similar to Eweida’s. The continental court found that her rights had in true sense been violated in view of Article 9 of the ECHR. The court awarded her costs of £30000 and damages of £2000, declaring that the British Airways had failed to strike an acceptable balance between its desire to curve a particular corporate image and their employee’s religious beliefs. The court ruled in the case of Chaplin versus the United Kingdom that a nurse cannot count fully on her religious beliefs. In this profession, religious freedom is outweighed by health and safety requirements of the employer. These health and safety requirements, the court argued, were in place to ensure the prioritization and protection of the clinical safety and health of the patients. The court recognized that the proximity of the chain could have possible harmful effects on patients. According to the judgement, the right of on individuals to wear items of clothing with religious symbols was protected, provided that right is balanced against others’ own rights. This case highlighted the existence of issues around the inadequacy of the employment equality law in the UK to adequately address cases involving religion. Suggestions have come up from some quarters that employers should be prevailed upon to adjust in order to accommodate the religious beliefs of their employees, similar to the case in other countries such as the United States and Canada8. Azmi v Kirklees Metropolitan Borough Council In this case, Aishah Azmi had a claim of unfair dismissal citing discrimination on religious lines. She worked for the Headfield Church of England Junior School as a bilingual support worker. The school had refused to let her wear a niqab which covered her face whenever she worked with her male colleagues. The Employment Appeal Tribunal noted, however, that Azmi had not indicated at any point during her interview that her religious beliefs dictated upon her to put on a veil or had any limitations on the way she worked. Upon requesting the authorities, the school management and the local authority decided to let her temporarily wear her niqab outdoors within the school grounds. An investigation into whether the niqab had an effect on her work was undertaken, and it was found that due to the nature of her work, body language and gestures reinforced spoken words. Facial expression was also included in the body language. The children could not respond positively to her teaching whenever she had a veil that covered her face and as such,a decision was arrived at that Azmi could not continue to serve for as long as she had to keep the niqab. The Employment Tribunal determined that Azmi had been victimized because she had raised a complaint, and subsequently awarded her £1000 and increased the amount by 10% because the local authority had not followed the laid down statutory procedure to address Azmi’s grievances. However, the tribunal threw out Azmi’s claims of harassment and direct and indirect religious discrimination, and her appeal was rejected by the Kirklees Council. The Employment Appeal Tribunal upheld the decision earlier taken by the courts, that there did not exist any form of discrimination or harassment, owing to the fact that other employees of other faiths would have been treated in the same manner and dismissed had they decided to cover their face for any reason. This judgement set precedent that an employer can be found liable for discriminating against an employee in consideration of external manifestation of their belief, such as the wearing of veils9. Employers would be acting within the confines of the law if the form of discrimination is indirect and they have a justification supported in law for their actions. It was also determined in the judgement of the EAT that orders to do away with the veil were meant to serve a greater good, that is providing education services of the highest quality, and that such orders were not targeted at the veil. R (on the application of SB) v Head Teacher and Governors of Denbigh High School (2006) This case pitted Shabina Begum, a student at the school at the time. She was aged 16 and professed the Muslim faith in a school that had students who subscribed to other religions as well. The school desired to be inclusive in addressing the needs of all members of this community and in the same spirit, regarded the school uniform as a tool of promoting communal identity. Female pupils at the school are allowed to put on Punjabi shalwar kameez with the khimar being optional in addition to the school incorporating trousers or skirts as part of the school uniform. In making a decision on the uniform policy, the school consulted with various local mosques, parents and other religious organizations. The shalwar kameez was preferred as it was used by more than one faith group and would help in minimizing the differences between these groups. Ms Begum attended school without any complaint for two years, and she wore the shalwar kameez. However, in September 2002, she went to school accompanied by her brother and another male person and demanded to be allowed to wear the Jilbab, a long coat like attire. She argued that the acceptable form of the shalwar kameez had short sleves and was close fitting, which was against what the requirements of Islamic dressing as stipulated in Sharia law. She decided to skip school for three years if she could not be allowed to wear her Jilbab, alleging her faith required her to wear one, as opposed to the one provided for by the school’s uniform policy. Groups that based their arguments in support of the school said that Ms Begum had come under undue influence from her brother after the death of her parents. They argued that Begum could not be allowed to wear the Jilbab to school because it would pile undue pressure on other students to take up stricter forms of Islamic dressing. Begum’s team made a claim that her human rights to religion had been violated (Article 9) as had been her right to education (Article 2(1) of the first protocol). Ms Begum lost this case at the High Court but later won at the Court of Appeal, prompting the school to appeal against that ruling. The case was then forwarded to the House of Lords for hearing by the Judicial Committee of the House. In the House of Lords, it was held that the rights and freedoms of individuals to hold certain religious beliefs were protected and absolute, but that an individual’s right to manifest a given religious belief was qualified. That is to mean that right can be altered suppose there was a justification. It was unanimously agreed that there existed justifiable reasons for interference in this case, among them being the protection of other female students’ rights, those who would wish not to be put under pressure to adopt more strict forms of Islamic dressing. R on the application of Watkins-Singh) v Governing body of Aberdare Girls’ High School The governing body of the Aberdare Girls’ High School decided not to allow a student that professed Sikh faith to wear a steel bangle as per religious practices formed the basis of this case10. The determination of this case concluded that there was indirect discrimination against the student on racial grounds. The law that was used in coming up with this decision was the Race Relations Act of 1976 and the Equality Act of 2006 to back up claims of discrimination on religion grounds. The defendant school had in place a uniform policy that only allowed for the wearing of a pair of stud earrings and a watch as jewellery to be worn with the school uniform. A teacher at the institution therefore asked the claimant to remove the religious bangle she had on. She declined this request and sought exemption from the uniform policy. The school allowed her to attend school in her religious bangle on the condition that she would be taught separately from the rest of the students and kept in seclusion away from the other students. Her appeal for general exclusion was declined by the school’s governing council. She sought judicial review of the school’s decision not to allow her to put on her bangle. Her claim was that such refusal was bordered on racial discrimination and religious segregation. In her case files, she claimed that the school had not been inclusive in coming up with the uniform policy and had not considered Section 71 of the Race Relations Act (1976) when drafting this policy. He claimant went further to claim that the isolation and internal segregation that she had been subjected to went against her rights, citing Article 8 of the convention in saying that the exclusions were not procedural. The court upheld the claimant’s application after considering the provisions of Section 45(3) of the Equality Act (2006) and section 1(1A) of the Race Relation Act (1976). The claimant had shown that she had been put in a disadvantageous position, and that she had suffered detriment11. In this case, the claimant did not need to demonstrate that the bangle had religious importance to her. She only needed to prove before the court that there was a genuine importance attached to her wearing of the religious bangle. The school was held liable for indirect discrimination. The court held that the bangle was less visible that the niqab in the case of R (on the application of SB) v Head teacher and Governors of Denbigh High School. It is imperative to note that matters of religion, pluralism and beliefs have gained a lot of attention in recent times in Europe. In Lautsi v Italy, a woman had gone to court because her children were attending a school whose classrooms all had a crucifix. She argued that this went against secularism. The court held in her case that issues of religious symbols being put in classrooms was within the provisions of the state, as long as it did not amount to any form of indoctrination. As in the case of Eweida and others versus the United Kingdom, steps have to be taken to make Europe a place where religious freedoms are provided and respected, aside from being protected by the law. Restrictions may be placed in exception to these freedoms in specialized places such as hospitals to protect patients from potential harm caused by such ornaments like chains. Such regulations apply to all members of staff equally and cannot be taken as discriminatory unless the management takes it upon itself to coerce an employee into changing their belief or character in conformity with the company regulations. In cases such as this, there should be some leeway for display of a person’s faith as long as this right does not collide with the rights of others12. There was indeed some double standards depicted in the actions of British Airways in Eweida versus British Airways because the company opted to allow some exceptions from the company uniform regulations13. Permitting employees who profess Muslim faith to wear the hijab in display of their faith even in specified company colours and yet asking a Christian attendant at the same organization not to reveal her cross when in uniform can be challenged as a case of double standards in a court of law. In protection of individuals’ freedom of religion, it is important for companies to consider to some reasonable extent adapting to the habits and behaviour of their employees when coming up with rules and regulations on dress code and uniform policies. For example, a company may show respect for its employees’ religious freedoms by allowing for breaks for prayers. If however the faith in question is not compatible with the code of conduct of the work place, there may be no other option for the employee other than to quit working for the establishment. Articles 43 and 44 of the Convention on Human Rights provide for appeal during a three month period following the ruling of the chamber. Any party that feels aggrieved by the decision can request for a referral of the case to the Grand Chamber of the court. References Arlow R & Adam W 2010 Grainger plc and others v Nicholson. Ecclesiastical Law Journal, 12(02) 258. Dobson N 2007, May 2 Veil Threat Removed.(case of employee termination due to wearing of veil at workplace solved). Mondaq Business Briefing, p. 15. Duggan M 2010 Equality Act 2010: a guide to the new law. London: Law Society. Equality Act 2010 nd Equality Act 2010. Retrieved April 13, 2014, from http://www.legislation.gov.uk/ukpga/2010/15/contents Equality and Human Rights Commission nd EHRC. Retrieved April 13, 2014, from http://www.equalityhumanrights.com Giles J 2013 Eweida, Chaplin, Ladele and McFarlane v United Kingdom: (Application nos 48420/10, 59842/10, 51671/10, 36516/10): European Court of Human Rights (Fourth Section): Bjorgvinsson, Bratza, Garlicki, Hirvela, Kalaydjieva, Vucinic, De Gaetano JJ Bratza and Bjo. Oxford Journal of Law and Religion, 2(1), 218-220. Give Thought To Dress Codes Before It Becomes An Issue 2007, November 30 Mondaq Business Briefing, p. 13. McColgan A 2011 Equality Act 2010 Liverpool: The Institute of Employment Rights. Vickers L 2009 Indirect Discrimination and Individual Belief: Eweida v British Airways plc. Ecclesiastical Law Journal, 11(02), 197. Wake P & Sangster C 2008 Spotlight on school uniform policies: R (on the application of Sarika Angel Watkins-Singh, a child acting by her mother and litigation friend) v the governing body of Aberdare Girls High School and Rhondda Cynon Taf unitary authority. Education and the Law, 20(2), 165-169. Read More