The case of Eweida v British Airways was mentioned in Prime Minister’s questions on 11th July. The Telegraph is reporting that the Prime Minister promised to change the law if she loses her claim before the European Court of Human Rights.

Well perhaps. Here is the exchange from Hansard:

Mr David Davis (Haltemprice and Howden) (Con):On 4 September, the European Court of Human Rights is hearing the case of Miss Nadia Eweida, the lady who lost her job at British Airways for wearing a crucifix as a mark of her Christianity. The behaviour of BA in this was a disgraceful piece of political correctness, so I was surprised to see that the Government are resisting Miss Eweida’s appeal. I cannot believe that the Government are supporting the suppression of religious freedom in the workplace, so what are we going to do about this sad case?

Reading the Prime Ministers words, I’m not quite sure what he has promised. But I suspct he will come to regret creating what may turn out to be a hostage to fortune. This case is likely to get a lot of coverage between now and the case being heard by in September and much of it will be misleading. I count three factual errors in David Davis’s short question alone.

One of the problems is that there is so much spin put on the case by those with an axe to grind (on both sides of the debate) that it is sometimes easy to lose sight of what the case is actually about. It is worth revisiting the findings of fact made by the Employment Tribunal and quoted by the Court of Appeal:

3.1 The claimant, who is a devout practising Christian, has worked part-time as a member of check-in staff for the respondent since 1999. As her job is customer facing, she is required to wear uniform. As the respondent operates a 24 hour operation throughout the year, she is required to work in a shift pattern. The claimant complained of a number of incidents between 2003 and 2006 which she said showed anti-Christian bias on the part of the respondent.

3.2 Until 2004 the claimant’s uniform included a high necked blouse, and she wore a silver cross on a necklace underneath the blouse when she wished to. Starting in 2004, the respondent introduced a newly designed uniform, which we call the Macdonald uniform, which included provision for an open neck, but which prohibited the wearing of any visible item of adornment around the neck. Between 20 May and 20 September 2006 the claimant came to work on at least three occasions with the cross visible under her uniform. When asked to conceal it she did so. When on 20 September she refused to conceal the cross, she was sent home.

3.3 The claimant remained at home, unpaid, from 20 September until the following February. She initiated and pursued the respondent’s grievance procedures. A storm of media attention, much of it hostile to the respondent, led the respondent to reconsider its uniform policy and to introduce an amended policy on 1 February 2007. The amended policy permitted staff to display a faith or charity symbol with the uniform. The claimant returned to work on 3 February 2007 and is still employed by the respondent.

I carry no torch for British Airways. I instinctively dislike strict dress codes and uniforms. If I am checking in for a flight I care much more about the speed of the process and what sort of seat I get than I do about what the check-in assistant is wearing. I am not going to claim that British Airways has handled itself well.

But let’s get a few things clear about the facts of this case.

British Airways did not ban the wearing of a cross (call me Mr Picky, David Davis, but it was a cross – not a crucifix). The rule that Eweida fell foul of was a rule against any jewellery worn visibly around the neck. She was free to wear her necklace covered up by the cravat that was an optional  part of the uniform – just as she had worn her cross under her uniform between 1999 and 2004! In fact it appears that she followed the uniform requirement for two years before it became a problem.

BA’s policy did not require Ms Eweida to act contrary to her religious beliefs. The Tribunal found the following:

33.4. 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). (my emphasis)

We should also bear in mind that the fact that Ms Eweida wanted to wear a cross as opposed to some other sort of necklace was – as far as British Airways was concerned – purely incidental. Whatever drove BA to adopt and enforce the rule against Ms Eweida it was categorically not ‘political correctness’.

The case was about BA’s refusal to treat Ms Eweida as an exception and allow her to wear the cross because of the meaning and importance it held for her. BA did allow for religious exceptions to their strict dress code, but only for ‘mandatory’ scriptural requirements where the item in question could not be worn under the uniform. Ms Eweida complained that this allowed Muslim women to wear a headscarf but did not allow her to wear a cross. However anyone who knows anything about discrimination law can see straight away that this is not comparing like with like. A cross can be worn under the uniform and a headscarf cannot.

You may be surprised to learn that I think she should have won a claim of indirect (rather than direct) discrimination. I disagree with the EAT and Court of Appeal over the issue of whether a claim for indirect discrimination can be made by someone who may be the only person with a particular belief. That’s a very technical argument, however, and I won’t go into it here. Anyone interested should look at my article in the February 2012 edition of the Equal Opportunities Review (Subscription required I’m afraid, but I’ve got to earn a living somehow).

However, not every act of indirect discrimination is a breach of human rights. Politicians who support her claim in the ECHR just because they think she should have been allowed to wear her cross over her uniform should be careful what they wish for. An excellent explanation of the implications of her winning her case can be found on the Flip Chart Fairy Tales Blog (with a fun debate about discrimination and human rights law in the comments thread).

I’m not a human rights lawyer and for all I know, Eweida will win her case before the ECHR – although as I understand it that will involve something of a departure from their approach in previous cases. If she does win, I doubt the Government will be happy with the consequences.

Of course it now appears that if she loses, the Government will be honour bound to change the law. When they see what that involves and consider some of theimplications, they won’t like that option either.