Azmi v Kirklees Metropolitan Borough Council, EAT, 30 March 2007
Mrs Azmi was employed as a bi-lingual support worker at a school. Her job required her to support the learning and welfare of pupils and to assist in the educational activity relating to children from ethnic minority backgrounds.
Azmi is a devout Muslim. She told the headmaster that, to accord with her religious beliefs, she would have to wear a veil that covered all of her head and face except her eyes when teaching with male colleagues. The headmaster instructed Azmi that she could not wear the veil when working directly with children in a classroom. When Azmi made it clear she was unwilling to obey the instruction, she was suspended. Azmi brought a tribunal claim alleging discrimination on grounds of her religion or belief.
A tribunal ruled there had been no unlawful discrimination, though shortcomings in the handling of her grievance by the school did lead to an award of compensation for victimisation. Azmi appealed.
On direct discrimination, the Employment Appeal Tribunal (EAT) agreed with the tribunal that the way the school treated Azmi should be compared with the way it would have treated someone who, for a reason other than religion or belief, wears a face covering. The tribunal had accepted that such a person would also have been suspended. Therefore, Azmi had not been treated any less favourably than anyone else would have been in those circumstances.
On the indirect discrimination point, the tribunal accepted that the school had applied a practice that put people of Azmi’s religion or belief at a disadvantage.
However, it decided there was no discrimination, because the adoption of that practice was justified as a proportionate means of achieving a legitimate aim.
In reaching that conclusion, the tribunal took into account that the headmaster and a colleague had both observed Azmi in the classroom and concluded that when she was wearing the veil, children did not engage with her as well as when she was unveiled.
Also relevant was the fact that the school allowed the full-face veil to be worn when not teaching. The EAT agreed with the way the tribunal had approached the matter, and dismissed the appeal.
It does not automatically follow that a ban on clothing associated with a particular religion or culture would be lawful in other workplaces.
Examples of grounds on which it may be appropriate to ban certain types of dress include security, health and safety or, as in Azmi’s case, because it prevents a worker from doing their job effectively. Employers should, however, make sure they have evidence to support their policy, as Azmi’s employer did.
It is also important for employers to explore with staff whether its objectives could be achieved in a less restrictive way. Any dress code should be couched in neutral terms, so that it is not seen as targeting an item of clothing associated with a particular religion.
Shirley Wright, employment law partner, Eversheds