The recent, extensive coverage in the press regarding religious dress in the workplace has caused employers great concern.
Civil rights lobbyist Liberty has described the case of Aishah Azmi, the classroom assistant suspended for wearing a veil, as creating a “political furore”.
The subsequent case of Nadia Eweida, a British Airways employee who is threatening legal action after being told she could not wear a crucifix necklace with her uniform, has served only to fuel the debate.
In reality, Azmi’s case does not set any new precedent in this emotive area, and it is important to separate moral arguments from the legal question of discrimination. Employers need to be careful, however, to ensure that they do not leave themselves vulnerable to claims of religious discrimination, where tribunals can apply unlimited damages.
Religious discrimination regulations came into force on 2 December 2003. Last year there were 307 claims.
The regulations prohibit direct and indirect discrimination, discrimination by way of victimisation or harassment in the workplace by reason of “any religion, religious belief or similar philosophical belief”.
The definition covers those religions that are widely recognised in the UK (such as Christianity, Islam and Hinduism) and other collective religions (such as Scientology). From 6 April 2007, the definition will be broadened further so that any genuine philosophical belief, including political belief, will be covered by the regulations.
Employers should ensure a policy is assessed from the perspective of all religions. It is also important to recognise that the regulations apply to prospective, actual and former employees.
Indirect discrimination occurs where an employer applies a provision, criterion or practice which puts people of a particular belief at a disadvantage, unless that practice or policy can be objectively justified. Indirect discrimination is unlawful whether it is intentional or not.
Having a policy of ‘no head-wear’ or ‘men must not have ponytails’ may expose an employer to a claim for indirect discrimination as it disadvantages Sikh and Hindu employees.
The hurdle for employers to overcome is to show that such policies are justified. The employer will need to show that the business need is legitimate, that the policy is necessary and that there is no alternative means available for achieving the aim.
The Azmi case was, in part, argued on the basis of indirect discrimination. The tribunal considered the circumstances of her role to decide if a ban on wearing a veil could be justified.
The fact that her job involved face-to-face contact with children was a critical factor behind the tribunal’s decision that the ban could be justified. A ban on veils will be much harder to justify for employees who are not involved in face-to-face work.
Tribunals may accept a ban if employers can point to a detailed assessment of why a ban can be justified in their particular circumstances. Such an assessment may show, for example, that young children find it hard to communicate with someone in a veil. Here a ban on wearing the veil may be justified.
Although Azmi was unsuccessful, this should not be viewed by employers as carte blanche to restrict the expression of religious beliefs in the workplace. Whether policies can be objectively justified will depend on the facts of each case.
- Before introducing a dress code policy, consider whether any element of the policy is unnecessary or likely to conflict with religious requirements.
- If a part of the policy could be discriminatory, consider whether it can be objectively justified. Conducting a workplace assessment will help establish any justification.
- Ensure that prospective employees are made aware of the policy before they join.
- Make it clear to all employees that any issues with the policy can be discussed in confidence with HR.
- Ensure company and/or statutory grievance procedures are followed. Keep detailed records at each stage.
By Helen Colquhoun, assistant solicitor, Withers