The Nadia Eweida/British Airways litigation (commonly known as the “cross case”) has been continuing for several years; and it has recently been reported that Ms Eweida intends to take her claim to the European Court of Human Rights.
For those unfamiliar with Ms Eweida’s claims they came about in 2004, when BA introduced a new uniform policy, which prohibited the wearing of any visible item of adornment around the neck. The BA policy dictated that religious items could only be visibly worn outside the uniform due to a “mandatory” scriptural requirement.
Ms Eweida issued her ET1 in December 2006 setting out various claims including direct, indirect discrimination on grounds of religious belief, and harassment discrimination; and also unlawful deduction of wages resulting from BA’s refusal to pay her for her absence. Her claim for indirect discrimination on the grounds of religious belief, which was explained in her particulars as follows: “This policy [the dress code] prevents the open wearing of a Cross by Christians. British Airways have applied their policy to permit adherents of other faiths to openly wear religious clothes that manifest their religious beliefs in the workplace…(e) The policy is a ‘provision, criterion or practice’ (PCP) which places i) Christians, and ii) the Claimant at a ‘particular disadvantage’; the ‘decision’ to refuse the wearing of a discreet Cross is a PCP; the disrespect of the Christian faith is a PCP”.
At first instance the Employment Tribunal (“ET”) rejected all aspects of Ms Eweida’s claim; and specifically held that there was no indirect discrimination because: “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”.
Ms Eweida subsequently appealed to the Employment Appeal Tribunal on the finding that she was not subject to any indirect discrimination on two specific grounds: what constitutes a “particular disadvantage” and whether “persons of the same religion or belief” are similarly disadvantaged (and how many persons need be put at a disadvantage). Ms Eweida argued that “all that regulation 3(1)(b)(i) requires for liability to be established (subject to justification) is that persons (my highlighting) of the same religion or belief are put at a disadvantage”. This would mean that there need only be two people who will be placed at a particular disadvantage as a result of the rule, or would be if they were employed by BA.
Ms Eweida’s barrister argued that it was “inconceivable” that there would not be some other Christian who would consider themselves disadvantaged in the same way as Ms Eweida. The EAT held that “the whole purpose of indirect discrimination is to deal with the problem of group discrimination”. It was therefore not enough for Ms Eweida to identify a disadvantage which she suffers and attempt to establish liability merely by discovering “a like minded soul who shares her belief so that he or she would be similarly disadvantaged if employed in similar circumstances by BA”.
The EAT held that in order to establish indirect discrimination (my highlighting):“it must be possible to make some general statements which would be true about a religious group such that an employer ought reasonably to be able to appreciate that any particular provision may have a disparate adverse impact on the group”.
There was no evidence of any group disadvantage, for which the onus was on Ms Eweida to prove, leading the EAT to conclude that the ET “was plainly right to conclude that there had been no indirect discrimination”. The logic being that as there was no evidence of any group disadvantage, for which the onus was on Ms Eweida to prove, therefore there could not be any indirect discrimination.
Ms Eweida then appealed to the Court of Appeal in February 2010 which was limited to one discrete issue: by adopting a staff dress code which forbade the wearing of visible neck adornment and so prevented, Ms Eweida, a Christian, from wearing with her uniform a small, visible cross, had BA indirectly discriminated against her on grounds of religion or belief pursuant to the Employment Equality (Religion or Belief) Regulations 2003 (“the Regulations”), and if so, could it be justified? Her argument changed, and she tried to argue that the definition of “persons” in sub-paragraph (i) of the Regulations included a single solitary individual. Sedley LJ held that “there is …no indication that the Directive intended either that solitary disadvantage should be sufficient …I see no reason, therefore to depart from the natural meaning of Reg. 3”. It is worth noting that the interpretation argument, if it were successful, was considered to have potentially huge ramifications. Sedley LJ considered that a wide interpretation would place “an impossible burden on employers to anticipate and provide for what may be parochial or even factitious beliefs in society at large”.
Freedom of thought, conscience and religion
ECHR jurisprudence was considered in the Court of Appeal in which Ms Eweida cited Art. 9 of the European Convention on Human Rights (Freedom of thought, conscience and religion). However, Sedley LJ highlighted that the jurisprudence on Art. 9 did not assist her, referring to the ECHR case of Kalaç v Turkey, which stated that: “Article 9 does not protect every act motivated or inspired by a religion or belief. Moreover, in exercising his freedom to manifest his religion, an individual may need to take his specific situation into account”.
The Employment Equality (Religion or Belief) Regulations (which have now been revoked following the implementation of the first stage of the Equality Act on 1 October 2010) are derived from Framework Directive 2000/78/EC which set out a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation with a view to putting into effect in the Member States the principle of “equal treatment” in employment and occupation. The European Convention on Human Rights (“the Convention”) is referred to in the pre amble to the Framework Directive; and under section 3 of the Human Rights Act tribunals are obliged to construe statutory language in a way which is consistent with the rights under the Convention.
It is understood that Ms Eweida’s appeal to the Supreme Court was rejected earlier this year; hence the road to Europe.
What is the procedure for bringing a claim to the European Court of Human Rights (“ECHR”)?
There is a popular misconception by the layperson that the ECHR is an appellate court – it is not. The ECHR is an international court which can examine complaints from persons who claim that their rights under the European Convention on Human Rights have been infringed. The ECHR’s own guidance states emphasises that it is not a court of appeal vis-a-vis national courts and explains that it cannot annul or alter their decisions. Nor can it intervene directly on behalf of the application with the authority they are complaining about.
Ms Eweida’s case will therefore no longer be against BA; it will be against the United Kingdom.
The procedure for applying to the ECHR
The ECHR can only deal with an individual application after all domestic remedies have been exhausted, and a decision of the highest competent national court has been given. There is a six month window in which applications can be made which begins when the final court decision is served on the applicant, or their lawyers.
A formal application has to be presented to the ECHR setting out a statement of facts and a statement of alleged violations of the Convention and/or Protocols and of relevant arguments.
The procedure is strict and the ECHR guidance records that more than 90% of the applications examined by the Court are declared inadmissible for failure to comply with the formal conditions for an application.
The ECHR will not deal with any application which is substantially the same as a matter that has already been submitted to another procedure of international investigation or settlement and contains no relevant new information. This is where employment lawyers will be interested to understand what new information will come to light.
The Court may declare inadmissible any individual application if the application is incompatible with the provisions of the Convention, manifestly ill-founded, or an abuse of the right of individual application; or that the applicant has not suffered a significant disadvantage.
Coincidentally on receipt of the first letter or application form the Registry of the ECHR will reply informing the applicant that a file has been opened and they are also sent a set of barcodes which should be attached to future correspondence. I wonder if this type of procedure could be applied in the Employment Tribunals to help ease the administrative burdens.
What could the EHCR do?
Assuming that Ms Eweida’s application is accepted and she is successful in her claim if the Court finds that there has been a violation of the Convention or protocols, and the internal law of the High Contracting Party (in this case the UK) concerned allowed only partial reparation to be made, the ECHR shall, if necessary afford “just satisfaction” to the injured party. Part of the application requires the applicant to set out a statement of the object of the application. This is particularly relevant as in the UK Sedley LJ commented that Ms Eweida had achieved what she sought, as regards the uniform policy and “it was hard to see what more BA could have done in practice to meet the grievance”. It has been recorded that Ms Eweida will seek compensation for the wages lost whilst she was suspended.
The ECHR may also at any stage place itself at the disposal of the parties with a view to securing what is knows as a “friendly settlement”, and if this is effected the ECHR will strike the case out of its list by means of a decision confined to a brief statement of the facts and of the solution reached.
How are claims to the ECHR funded?
It is important to note that the ECHR does not grant legal aid to help applicants pay for a lawyer to draft the initial complaint. This may be particularly relevant for Ms Eweida as parties attended a costs hearing at the Court of Appeal in September 2009 which highlighted that Ms Eweida had sought assistance from a number of persons (or bodies), including the Equality and Human Rights Commission.
However, at a later stage of the proceedings the applicant may be eligible for free legal aid, if they have insufficient means to pay lawyers fees and if such aid is necessary for the proper conduct of the case.
 Cited at Para 7, Court of Appeal.
 Cited at Para 15, EAT Judgment.
 Appeal No. UKEAT/0123/08.
 Court of Appeal, Para 18.
 Kalaç v Turkey (1997) 27 EHRR 522, Para 27.
 Framework Directive 2000/78/EC
 As cited by Lloyd LJ at Para 36, Neutral Citation Number:  EWCA Civ 1025 (“Costs Case”)