Three years on from the introduction of the Employment Equality (Religion or Belief) Regulations 2003, Victoria Parry focuses on work apparel and how employers might handle requests to work over Christmas.
Religious Discrimination – Are employers safe?
Religious discrimination has been a hot topic in the press over the last few months. However, three years after The Employment Equality (Religion or Belief) Regulations 2003 came into force, we have actually seen only a handful of cases on the topic. So, are we any closer to determining what will and what will not amount to religious discrimination? This comes at a particularly relevant time as most businesses prepare to close over the Christmas holiday period.
You may have heard of the infamous case of Azmi v Kirklees Metropolitan Council (ET). In this case Mrs Azmi worked as a bilingual support worker. She was required to support the learning and welfare of pupils of ethnic minority, often learning English as a second language. She requested that she be allowed to wear a full veil (that covered her whole head, except for her eyes). There was concern that the pupils were seeking visual clues from her which they could not obtain because they could not see her facial expressions and also that her dictation was not as clear or loud as it would have been had she not been veiled. Mrs. Azmi continued to refuse to remove her veil. Shortly afterwards she was suspended.
Direct discrimination. Her suspension for refusing to comply with the instruction to not wear the veil constituted less favourable treatment on the grounds of her belief.
Indirect discrimination. Mrs Azmi submitted that the requirement "not to wear clothing which covers the face" and the requirement "not to wear clothing which interferes unduly with the employee's ability to communicate appropriately with pupils" were not neutral provisions as they arose out of the schools "intention to target the veil" and could not therefore amount to a provision, criterion or practice (PCP).
The ET concluded that the management instruction not to wear a veil whilst teaching did not amount to either:
(a) direct discrimination. The employee had not established a prima facie case that she had been less favourably treated than a comparator in similar circumstances (a non-Muslim employee who had covered their face); nor
(b) indirect discrimination. The teacher's employer had a legitimate aim in giving the instruction and the means of achieving it were proportionate. Mrs Azmi communicating fully with the children was of the utmost importance and in order for her to communicate well with the children the evidence showed that they needed to see her face. The Local Education Department's requirement that those concerned with the teaching of children should not have their faces covered was a legitimate aim.
What does this mean for employers?
– Employers should not overestimate the decision in this case. Although some may view the Azmi case as a victory for common sense, the facts of this case demanded a balance between the interests of the school and local authority in providing the best quality education possible and Mrs Azmi's desire to express her cultural beliefs. The consensus is that this case sets no precedent.
– It must be remembered that the position at law is still that in the absence of direct discrimination, a policy requiring staff not to wear a veil at work will constitute discrimination unless it can be justified (note that direct discrimination can never be justified). The argument that an employee should not wear a veil would probably carry less weight if she worked in an office, shop, call centre or a factory. Only in exceptional circumstances, such as this, involving the effectiveness of a child's education, might it be argued with success. In reality the argument that there needs to be visual contact with the clients on any pitch is not going to be sufficient to justify the removal of a veil.
– Employers must consider carefully whether they can accommodate religious expressions (such as turbans, beards and religious symbols) and have very clear reasons if they can not, otherwise they may face unlimited damages.
In reality in this country employers are unlikely to fall foul of the direct discrimination laws. The more likely position is one where employers have failed to think about the fact that rules that appear "neutral" may have a disproportionate impact on certain religious groups. A common example of this is where Christian festivals are routinely celebrated (such as Christmas holidays) whereas other festivals are not (such as Jewish holidays). Employers should consider carefully any requests to work over the Christmas period from people who wish to carry over the time for their own festivals. The issue will come down to justification and the requirement to take the holiday over Christmas needs to be both proportionate to the needs of the business and be for a legitimate purpose. This means "we have always done it this way" argument will not work and employers should be prepared to consider and explain the needs of the business on a case by case basis.