The recent case of the teacher who wished to wear a veil which ended in her being fairly dismissed has continued to attract a lot of headlines. This is because it touches a number of sensitive issues - religious or genuine belief, discrimination legisaltion and the reasonable requirements of employers. Looking at how the school approached the matter illustrates some important guidance all employers should heed if they have to address a similarly complex matter.
A recap - what has happened:
- In the case of Azmi v Kirklees Metropolitan Borough Council, a Support Worker was dismissed for refusing to remove her veil while teaching
- The employment tribunal ruled that she had not been discriminated against on the grounds of religion or belief
- The Employment Appeal Tribunal has agreed and found that she had not been discriminated against on the grounds of religion or belief
The situation:
The employee wears a veil that covers all of her head and face, except for her eyes, when in the presence of adult males. She asked the school if she could wear the veil when working in the classroom with male teachers, including periods when she was communicating with the children.
What did the School Do?
- Decided that 'obscuring the face and mouth reduces the non-verbal signals required between adult and pupil' and stated that 'teachers or support workers wearing a veil in the workplace will prevent full and effective communication being maintained'
- Observed lessons and concluded that 'wearing a veil in class had an adverse impact on the employee's ability to perform her job'
- Instructed the employee to teach without the veil
- When she refused, she was suspended.
The Claim
The employee made a claim under the Employment Equality (Religion or Belief) Regulations 2003 for direct discrimination, indirect discrimination, harassment and victimisation. All claims were dismissed except that she was awarded £1,000 for injury to feelings for victimisation.
The Appeal Decision
The employee argued that the tribunal had chosen the wrong comparator - it should have been another Muslim woman who covered her head but not her face and not a non-Muslim woman who covered her face. The EAT said this would not have been a fair comparator because it would not have carried the same risk of suspension. In terms of her indirect discrimination claim, the EAT found that although the employer's decision could amount to indirect discrimination on the basis of religion or belief, the employer had shown that their policy was a 'proportionate means of acheiving a legimate aim' i.e providing the education to the children while allowing the employee to wear the veil at other times.
Conclusion:
The reason the school was able to defend itself from the main claims against it was that it properly considered the matter, based its decsions, as far as it was able, on objective criteria and explained the consequences of what would happen if a change in approach wasn't forthcoming. It is a very good example of one of the mantras we reapeat at HR Advantage: 'it is not just what you do it that is important, it is the way that you do it'. It also confirms that employers do have a right to manage, but they need to be reasonable in how they exercise this right.
If you would like guidance on how to address difficult or sensitive issues at work please e-mail Stuart on stuart@hradvantage.co.uk or call on 01404 42359.
April/May 2007
