More complications to religious dress issue

The decision in the case of the British Airways employee not allowed to wear a silver cross at work (Eweida v BA) has ended in the Employment Appeal Tribunal (EAT) deciding against individual Christian belief.

Mrs Eweida had defied a staff uniform regulation that prohibited wearing jewellery outside the uniform. She insisted on wearing a small silver cross (not crucifix) as a symbol of her fervent Christian faith.

The EAT took the view that Mrs Eweida's belief was not necessarily shared by other Christians and so was not protected by religious discrimination laws. The view of Queen Elizabeth I that "there is one Christ Jesus and one faith", did not find favour with the courts, which viewed each faction of the Christian faith as a separate religion.

While an individual's conviction on particular usages is in practice accepted in cases concerning Sikhs and Muslims, it is not seen as sufficient in regard to Christianity. In this respect the EAT ruling coincides with the ruling in the 'silver ring thing' case.

Although it was not strictly required to settle the case, the EAT also gave its views on two other matters. The first was to challenge the view expressed by one Law Lord in the 'Begum' case that the right to religious belief did not include the right to manifest it at any time of one's choosing.

The second was to indicate whether a ban on a small cross was 'proportionate'. Had the EAT in fact decided that banning the cross was a violation of Mrs Ewieda's rights, the question would then have been whether the ban was 'for a legitimate purpose and proportionate'. The EAT indicated that had it been decisive for the case, it would have ruled against BA on that point.

'Proportionate' is now something of a confusing term. Matters appear to stand as follows. Banning the niqab (proportionate: EAT/High Court); banning the jilbab (proportionate: House of Lords); banning the 'silver ring' (proportionate: High Court); banning the Kara bangle (disproportionate: High Court); banning the turban (disproportionate: House of Lords); banning a small silver cross (disproportionate: EAT).

It does need to be pointed out, however, that the Kara bangle and turban are not judged as religious symbols per se but as measures of adherence to a race; and so are considered to be protected by race discrimination rather than religious discrimination laws.

In the light of these rulings one is tempted to say that the only sensible guidance that can be given is 'choose your judge'. This not being practical advice, the key thing is to be able to demonstrate that any rules have been thoroughly considered in relation to the nature of the school and its circumstances and the school's equality duties, while also taking into account the new duty to promote community cohesion.