26 June, 2007
There has been much coverage recently in relation to the wearing of a veil as part of a woman's religious beliefs. Jack Straw's comments certainly caused a great deal of controversy and debate. A recent Tribunal decision in relation to whether a language teacher could wear a veil that concealed her face found that the requirement for this individual to remove the veil for the purposes of teaching did not constitute direct or indirect discrimination on the grounds of religion or belief.
In relation to direct discrimination the appropriate hypothetical comparator would be another person who completely covered the face such as by way of a mask or balaclava, not another person of the Islamic faith. Therefore the Tribunal found that a comparator would have been suspended in light of the findings of the Council on the effect of children's learning.
In relation to indirect discrimination, the Tribunal found that the requirement not to wear the veil was a 'provision, criterion or practice' within Regulation 3(1)(b) of the Regulations dealing with this type of discrimination. However, the requirement pursued a legitimate aim in relation to the education of the children and was also proportionate as it only applied to the Claimant when she was teaching. Therefore, no finding of indirect discrimination was found.
The Employment Appeals Tribunal recently upheld a Tribunal's decision that the dismissal of a Muslim man, who had been asked by his employer to trim his beard, did not constitute an act of religious discrimination. The request by his employer had been in line with the company's uniform procedure for the requirement to keep beards neatly trimmed and smart.
British Airways has been under some scrutiny recently in relation to its uniform policy that requires all employees who wear jewellery and religious symbols to conceal these under their uniform. There is an exception in relation to the Sikh turban and Muslim hijab. One particular employee, Nadia Eweida, has taken exception to the policy and intends to bring a claim against British Airways on the grounds of religious discrimination. Following the decision in the school teacher case, it will be interesting to see how the courts interpret this case if it does come before them. An immediate consideration will be that the ban applies to all jewellery and not just those that bear religious symbols.
It would appear that in all circumstances, an important test for employers when considering the reasonableness of a uniform/dress requirement is whether it would apply to another employee ('the comparator') in a comparable situation. This will no doubt continue to cause difficulties for many employers in the months ahead.
Peter Byrne, Head of Employment law at Forbes Solicitors
Email: Peter Byrne
Phone: 01254 222362