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

FOGLI DI LAVORO per il Diritto internazionale 3/2008
should be entitled visibly to wear a cross manifesting or
proclaiming their faith suffered a disadvantage even if, unlike
the claimant, they were, or would have been, reluctantly
prepared to go along with the provision. The Tribunal erred in
asserting that the disadvantage had to result from the imposition
of some sort of barrier. That might have been so under the
earlier concept of indirect discrimination because indirect
discrimination was defined in terms of the imposition of a
requirement or condition which adversely affected the claimant
because she could not comply with it. However, the current
definition is differently cast and allows a tribunal to find that a
particular disadvantage has been suffered even where the
employee can and does comply with the provision.
37. Ms Moore also submitted that the Tribunal erred in failing to
identify the relevant pool against which to asses the comparative
impact of the provision. Had they done so, they might have
identified two different forms of disadvantage. If comparison
were made with those from certain other faiths who were, as an
exception to the general rule, permitted to wear religious items,
the claimant and other employees of a Christian persuasion
suffered a particular disadvantage because they could not share
the experience of openly wearing such items. They could not
proclaim their faith whereas many Hindus, Moslems and other
religious groups could do so.
38. Even if that were not the appropriate pool, and it consisted
of all those who were adversely affected by the provision
because they wished to wear jewellery and were forbidden to do
so (which would include all who might wish to wear jewellery
openly for appearance sake), there was still a particular
disadvantage suffered by the claimant and others sharing her
religious views. BA’s uniform provision impinged on the
claimant’s freedom to express her faith in a way which was
characteristic of that faith. Whilst others may have equally
suffered a restriction on their freedom, it would not have been of
the same qualitative nature. It would have been for cosmetic
reasons rather than more deeply held reasons connected to
religion.
39. Ms Moore supported the submission that these could
constitute a particular disadvantage by reference to the very
wide definition of “detriment” adopted in relation to the earlier
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