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

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284 FOGLI DI LAVORO per il Diritto internazionale 3/2008 might support any suggestion that the provision created a barrier for Christians, and ample evidence to the contrary. Mr Marriott stated that this was the only case which he had encountered of a Christian complaining of the uniform policy. Certainly there was no evidence of Christians failing to apply for employment, being denied employment if they applied for it, or failing to progress within the employment of the respondent. Taking these matters together, we do not consider that the provision put Christians at a particular disadvantage, and that being so, there is no disadvantage to which the claimant as an individual was put. The complaint of indirect discrimination therefore fails.” 16. This penultimate sentence is at first blush a little puzzling since it suggests that the claimant was not put at a disadvantage, whereas in our judgment she plainly was. Once she insisted on the right visibly to wear the cross, BA’s equal insistence that she should not do so operated as a barrier to her being able to work and to be paid. The effect of the provision, given her stance, was that she could not work. However, we think that the Tribunal was simply saying that since the relevant disadvantage must be one which is shared by a group, and the evidence did not sustain the claim that it was, there was no relevant particular disadvantage within the meaning of the legislation. 17. Although the issue of justification did not strictly arise, given the conclusion that there was no discrimination in any event, the Tribunal went on to consider whether, had the provision given rise to prima facie unlawful discrimination, it would have been justified. They concluded that it would not. They found that the uniform policy was designed to achieve a legitimate aim, namely that of brand uniformity. They had accepted evidence that the uniform served an important purpose
FOGLI DI LAVORO per il Diritto internazionale 3/2008 in giving BA a consistent, professional and reassuring image world wide. However, they would not have found that the rule adopted was a proportionate means of achieving that legitimate aim. 18. The Tribunal summarised its approach to the issue of proportionality in the following terms (para 33.9): “… We consider that a proportionate means is one which is achieved as a result of a balancing exercise between all the interests involved, recognising the importance of the business need, analysing the business case and the rationale put forward by the respondent in accordance with the guidance in Hardys & Hanson plc v Lax [2005] IRLR 726, and forming our own view of whether justification has been proved. We would in that context consider it important to assess whether the respondent has demonstrated that any discriminatory impact has been assessed and reduced to the barest minimum.” 19. The Tribunal commented that BA had not considered the potentially discriminatory impact of their policy until November 2006, that is, after they had sent the claimant home for refusing to comply with the policy. As soon as the issue was squarely raised, the policy was amended without apparently any ill effects. The Tribunal recognised that it was analysing the issue with the benefit of hindsight; nonetheless it was satisfied that the requirement was not proportionate because: “… it fails to distinguish an item which represents the core of an individual’s being, such as a religious symbol, from an item worn purely frivolously or as a piece of cosmetic jewellery. We do not consider that the blanket ban on everything classified as “jewellery” struck the correct balance between corporate consistency, individual need and accommodation of diversity.” 20. Ms Eweida now contends that the Tribunal erred in law in finding that the provision did not put persons of the Christian faith at a particular disadvantage when compared with other 285
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FOGLI DI LAVORO per il Diritto internazionale 3 ... - Giurisprudenza

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