FOGLI DI LAVORO per il Diritto internazionale 3 ... - Giurisprudenza

FOGLI DI LAVORO per il Diritto internazionale 3/2008
and demonstrate that there was no disparate impact with respect
to any pool which the employee might conceivably put forward.
The Tribunal’s findings on indirect discrimination.
13. The Employment Tribunal found that the respondent applied
the following provision, criterion or practice (which we shall
hereafter term a “provision”) both to the appellant and to
persons not of the Christian religion:
“That personal jewellery or items
(including any item worn for religious
reasons) should be concealed by the
uniform unless otherwise expressly
permitted by BA.”
14. The Tribunal did not accept that the provision put Christians
at a particular disadvantage
compared to other persons. They summarised their reasons for
this conclusion as follows (paras 33.3-33.6 at page 42/43):
“We turn to the question of whether the
provision, as defined, puts Christians at a
particular disadvantage compared with
other persons. Ms Simler reminded us of
the judgement of Baroness Hale in
Rutherford v Secretary of State for Trade
and Industry [2006] IRLR 551,
describing the rule or requirement in that
case as creating a barrier for a group of
people who want something, and who
are selected for disadvantage compared
with others.”
15. Then after observing that the claimant’s own evidence was
that the visible wearing of the
cross was a personal decision and not required by scripture or as
an article of faith, the Tribunal found that there was no disparate
impact in terms which suggest that this would have been their
conclusion irrespective of where the burden of proof lies:
“There was no evidence in this case that
283