This year, the employment tribunal heard a religious discrimination claim from Mr Mohmad against Virgin Trains. He alleged that his managers had asked him to trim his beard, and that he was unable to comply on religious grounds as he was a devout Muslim.
Virgin Trains maintained that his dismissal was due to his poor performance. The tribunal rejected all of Mohmad’s claims and accepted that the dismissal had been unrelated to the issues that he referred to. It concluded that he had in fact been dismissed due to his poor performance and lack of enthusiasm for the job.
In 2004, a separate employment tribunal heard the claim of Mrs Ferri, a devout Catholic. At her job interview and subsequent meetings with Key Languages Limited, she wore a gold crucifix on a gold chain, the Virgin Mary on a gold chain, and a large cross encrusted with ruby-coloured gems. She was told that the company felt it was inappropriate to wear the three necklaces together at work as they were rather “loud” and overtly religious symbols.
Ferri was subsequently dismissed for alleged poor work performance. The tribunal found that the employer’s explanation in relation to this was cogent, and that there was documented evidence of her poor performance. It rejected her claim of discrimination on grounds of religious belief.
In Williams v South Central Limited, also in 2004, Mr Williams, a US citizen, worked as a train dispatcher at Victoria Station. He stitched a small US flag on to his reflective waistcoat. His managers objected, as there was a rule that nothing should be placed on reflective waistcoats. He refused to remove it and was dismissed. He claimed it was because he’d “stood up for his beliefs as an American citizen”, and had therefore been treated less favourably because of his beliefs.
The tribunal decided his loyalty to his national flag did not constitute a ‘belief’ within the meaning of the Employment Equality (Religion or Belief) Regulations 2003, and his application failed.
These cases clearly highlight the issues employers may face when dealing with dress and appearance codes where there are potentially religious factors at play. Aside from allegations of direct discrimination in the enforcement process, certain rules could constitute indirect discrimination against particular religions whose tenets are inconsistent with the dress/appearance code imposed.
However, indirect discrimination can be justified, and – assuming the employee can overcome the hurdles of showing that the treatment they received was on the basis of a religion or belief as defined – this is the area where the majority of cases are likely to arise.
The areas of contention are endless – issues may arise in relation to beards, skirts, headwear, religious jewellery, veils etc. The burden will be upon the employer to show that the provision within the dress or appearance code that bars such items is justifiable. This may be on grounds of health and safety, customer perception, or ‘image’. But the more intangible the justification, the harder it will be for the employer to win. This will usually mean waiting for problems or complaints to arise, rather than assuming they will.
Although the 2003 regulations state that measures such as dress codes, or particular components within such codes, will be justified if they are “a proportionate means of achieving a legitimate aim”, employers are likely to have to show that the measure is the only means of achieving that aim to justify it.
Employers will also need to be sure that the aim of their dress/appearance code is ‘legitimate’ in itself, as issues of corporate image or identity will become increasingly difficult to support in a multi-faith environment.
Much good can be achieved by consulting with staff before introducing new rules in this regard.
By Sue Nickson, partner and international head of employment, Hammonds
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