You are here

Failed cost-capping application raises access to justice issues for employees

27 October 2009

A British Airways check-in worker who was banned from wearing a crucifix has failed in the latest round of her discrimination claim seeking to cap the costs her employer could recover if she lost her case.

Nadia Eweida claims that she was directly and indirectly discriminated on religious grounds and is seeking up to £79,000 in compensation.

The employment tribunal, and later the Employment Appeal Tribunal, rejected her claim but the case has been allowed to proceed to the Court of Appeal because it is seen as raising issues of general public importance.

Now that her case has reached the Court of Appeal, Ms Eweida could be liable to pay for her employer’s legal costs if she loses, and Liberty, who is acting for her pro bono, applied for a protective costs order.

Considering the application in May, Lord Justice Sedley found that the draft bill of costs put forward by BA, which is represented by Baker and McKenzie, exceeded by over 25 per cent the current guidelines on costs assessment and that the projected hours of work seemed “on the generous side”.

He made a £25,000 costs-capping order, ruling that it would be unreasonable to expect an unsuccessful appellant to pay the amounts which the respondent incurred for a “Rolls Royce service”.

But discharging the order last week Lord Justice Lloyd said in Eweida v British Airways [2009] EWCA Civ 1025 there was “no particular element in the respondent’s draft bill of costs which is unreasonable or disproportionate in itself”.

Where does this leave Ms Eweida? Liberty had argued that it was enough for the rule to prevent an employee from expressing his religion to constitute discrimination.

Following the Employment Appeal Tribunal ruling, however, claimants in religious discrimination cases have to show that an employer’s practice or criterion has a disparate impact on other employees sharing the same religion or belief.

Corinna Ferguson, legal officer at Liberty, said this was wrong.

According to Ferguson, the EAT’s judgment requires courts to generalise about the dress or other manifestations of religions, whereas the mandatory nature or otherwise of such manifestations is not a matter for the courts.

“This is wrong in principle and fails to recognise the inherently personal nature of religion and belief. If the wearing of a cross is important to an individual it should be allowed unless there is proper justification for not doing so,” Ferguson said.

Eweida and Liberty have secured insurance for legal costs for up to £20,000 but are still looking for an indemnifier beyond that limit, and the Court of Appeal’s refusal to grant a costs-capping order also raises the question of access to justice in employment cases, as Ms Eweida is not eligible for legal aid.

“It will be appalling if this case cannot proceed simply because of BA’s threat to cause financial ruin to one of its own employees,” Ferguson continues. “Like most people in this country Ms Eweida is not eligible for legal aid, but neither can she afford to pay her employer’s exorbitant legal costs if she loses.”

Lloyd LJ’s main argument for rejecting both a PCO and a CCO was that the case was not a public law case, a reason with which Ferguson takes issue.

“The Court of Appeal’s rejection of her application for a protective costs order creates a real problem for access to justice in private cases which raise issues of public importance, and it is hoped that Parliament will address this as a matter of urgency.”

Categorised in:

Police & Prisons Discrimination Costs EU & International