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

FOGLI DI LAVORO per il Diritto internazionale 3/2008
group disadvantage. On that premise it would have been
legitimate to infer that BA ought to have been aware of the
potential discriminatory consequences, and in those
circumstances their failure to address the issue until it had been
raised by the claimant could properly be criticised.
75. On the assumption that there was group disadvantage which
ought to have been appreciated by BA, we can see nothing
wrong with the Tribunal’s analysis. It was perhaps expressed
somewhat cursorily, but that is hardly surprising since the
Tribunal was dealing with this towards the end of its judgment
when considering the issue of indirect discrimination which
itself had not been a prominent feature of the case argued before
them. No doubt had the Tribunal found that there was prima
facie indirect discrimination they would have dealt with the
issue more fully. However, we consider that it is clear enough
from the reasons they give why they have reached the decision
they have, and we think that the conclusion that they reached
was a permissible one on the evidence before them.
76. Accordingly, had we allowed the appeal we would not have
allowed the cross-appeal.
Disposal.
77. The appeal fails. BA did not act in a way which amounted to
indirect discrimination because there was no evidence that a
sufficient number of persons other than the claimant shared her
strong religious view that she should be allowed visibly to wear
the cross. That was the finding of the Employment Tribunal, and
it was one they were plainly entitled to reach on the evidence. In
our judgment, there was no error of law in their approach.
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