Treating a person less favourably because of their religion or belief is direct discrimination. Having a policy or practice which has the effect of particularly disadvantaging a particular group of people, for example, those with a particular religion or belief is indirect discrimination unless an employer can show objective justification.
Employers sometimes have to balance different obligations which can at times clash. Whilst employers do need to ensure that they implement non-discriminatory polices, consideration still needs to be given to other factors at times including health and safety concerns.
These competing priorities can be seen jostling for position in the area of dress codes.
The recent cases in this area do not provide consistency and the outcomes vary.
- In the case of Azmi v Kirklees Metropolitan Borough Council, the Employment Appeal Tribunal held that an employer did not unlawfully discriminate against a teaching support worker on the grounds of religion or belief by refusing to allow her to wear a full-face veil in the classroom. The case found that the children did not engage with Mrs Azmi as well as when she was unveiled. Also relevant here was that the school allowed the full-face veil to be worn when she was not directly teaching.
- In Chaplin v Royal Devon & Exeter Hospital NHS Foundation Trust, Ms Chaplin, a nursing sister, had refused on religious grounds to stop wearing a crucifix necklace with her uniform contrary to the Trust’s health and safety policy to reduce the risk of injury when handling patients. Ms Chaplin was redeployed as an Admissions and Discharge Coordinator, a post not subject to the same restrictions. The Employment Tribunal held that she had not been subjected to discrimination on the basis of the Trust’s justified health and safety policy. The ECHR later upheld this decision.
- The case of Begum v Pedagogy Auras UK Ltd involved a uniform policy requiring that any garment worn should not present a tripping hazard. Ms Begum was told that she could not wear a jilbab of a particularly long length. This resulted in her not accepting the post. The Employment Appeal Tribunal held that any indirect discrimination was justified as being a proportionate means of achieving a legitimate aim namely protecting the health and safety of staff and children.
- The case of Achbita v G4S Secure Solutions is ongoing. The Advocate General was of the opinion that a company’s ban on employees wearing religious, political or philosophical symbols whilst on duty, which led to the dismissal of an employee for wearing an Islamic headscarf, did not amount to discrimination as the policy applied to all employees equally and could be justified as a genuine occupational requirement.
- However, in another ongoing case, Bougnaoui v Micropole SA, the Advocate General concluded that this defence is only available where the requirement is absolutely necessary to undertake the job duties in question and the Advocate General found it hard to envisage any such circumstances other than health and safety requirements.
Clearly employers need to ensure that they strike the right balance between promoting health and safety in the workplace whilst being mindful of their employees’ religious beliefs. Areas to think about are:
- whether the religious dress or article of faith prevents an employee from doing his/her job;
- whether a dress code policy indirectly discriminates against individuals of particular religions or beliefs;
- whether there are health and safety concerns that impact on the wearing of religious dress/articles of faith;
- if there are health & safety concerns, whether these can be addressed in some way prior to banning the item in question.
ACAS has recently published a research paper on Dress Codes and Appearance at Work which offers guidance as follows “Irrespective of the legal position however, it may be time in a modern, progressive, and multicultural society for employers to reasonably accommodate the wishes of workers with respect to dress and appearance unless there is some compelling business case not to”.
In other words, before introducing a blanket ban, employers should think long and hard about why that ban needs to happen at all in modern times.