UK: Removing The Veil: EAT Rules In Religious Discrimination Case

Last Updated: 9 May 2007
Article by Christopher Booth

In the high profile case of Azmi v Kirklees MBC the EAT has held that a requirement that a Muslim teaching assistant remove her veil whilst teaching did not contravene the UK's religious discrimination laws.

The facts

Mrs Azmi worked as a bilingual teaching assistant. During her first week she asked to be allowed to wear a veil, which covered her entire face except for her eyes, whenever she was in the presence of a male adult. This request was refused on the basis that when she was veiled children could not get the visual clues they needed from her facial expression. She was therefore instructed to be unveiled whilst teaching. Mrs Azmi felt she could not comply and ultimately was suspended. She then issued a number of tribunal claims including claims for direct and indirect discrimination on the grounds of her religion and belief.

The decision

Both claims were rejected by an employment tribunal and their decision has now been upheld by the EAT.

As far as direct discrimination was concerned, the correct comparator was a person who covered their face for a reason other than religious belief. As such a person would also have been suspended, there was no less favourable treatment and the claim failed.

With regard to indirect discrimination, although the instruction to remove her veil put Mrs Azmi at a disadvantage, it could be justified as a proportionate means of achieving a legitimate aim (namely that the school children receive the best possible language teaching). As a result this claim also failed.

Practical Implications

Cases such as this always depend on their precise facts. However it is worth noting that the employer could adduce detailed and credible evidence of the balancing exercise it conducted before issuing the instruction to work unveiled. Not only did the head teacher observe Mrs Azmi's teaching before taking any decision, a number of alternatives (such as using a screen and changing her timetable) were also considered. This meant it was much easier for the employer to defend the case.

Discretionary Bonuses: An Update

Employers operating discretionary bonus schemes will welcome two recent developments, both of which are likely to deter legal challenges to bonus decisions.

The Commerzbank case

The first concerns the case of Commerzbank AG v Keen, decided by the Court of Appeal at the end of last year. The Court held that the Unfair Contract Terms Act did not apply to bonus provisions and therefore a contractual provision requiring an employee to be in employment at the date of payment of a bonus was enforceable. The Court also held that an employer must not exercise its discretion in respect of bonus payments ‘capriciously or irrationally’. However, where a bonus scheme gives the employer wide discretion, an employee will find it difficult to show this was the case, especially if the employer has given a credible explanation of the bonus calculation and there is no independent evidence to support the irrationality claim.

The House of Lords has now refused Mr Keen's application to appeal. This effectively upholds the Court of Appeal's reasoning and reflects a reluctance to intervene in an area where so much depends on fluctuating market conditions.

The Takacs case

The second development relates to Takacs v Barclays Jersey Services in which it was suggested, amongst other things, that there may be an implied term preventing an employer from firing an employee to avoid payment of a bonus. The case was due to go to full trial to be fully argued, but has now settled. Consequently the danger that wideranging implied terms might be developed in this area has, for the moment at least, receded.

Practical Implications

Despite these developments employers need to be wary, particularly if considering terminating an employee's contract solely to avoid paying a bonus. It is also important to give employees an explanation for any bonus decision. Lack of transparency could give rise to discrimination claims (particularly age and sex based claims) and could also give powerful support to an irrationality argument or an argument based on breach of the implied duty of trust and confidence.

Do You Need To Know…?

Part-timers and Bank Holiday Mondays

The thorny issue of part-timers and bank holiday entitlement was considered recently in McMenemy v Capita Business Services Ltd. The Scottish Court of Session held that a part-time employee who did not work Mondays - and so missed out on a number of bank holidays - was not entitled to be given time off in lieu under the Part-time Workers Regulations.

The case was somewhat unusual in that the employer operated seven days a week and applied the same rule to full-timers working Tuesday to Saturday as it did to part-timers like Mr McMenemy. This enabled the Court to find that Mr McMenemy's treatment was not on the ground of his part-time status but simply because he did not work Mondays.

Despite this case, pro-rata apportionment of bank holidays will usually remain the wisest policy for employers to follow, especially as a female employee in Mr McMenemy's position might be able to bring a sex discrimination claim (which because of the difference in the statutory provisions would have a greater chance of success).

Threatening letters to school dinner staff unlawful

The House of Lords has held that an employer was acting unlawfully when it sent threatening letters to employees who had started equal pay claims against it. In St Helens Borough Council v Derbyshire the Council wrote to certain school dinner staff warning them that if they pursued their claims for equal pay, this could result in cuts to the school meals service and redundancies. Similar letters were also sent to their colleagues and caused much bitterness and resentment.

The House of Lords was in no doubt that these heavy-handed tactics went beyond a reasonable attempt to settle the dispute and amounted to unlawful victimisation contrary to the Sex Discrimination Act. As a result the Council will now have to pay the dinner staff compensation which could run into thousand of pounds. This is on top of the sums already awarded to the employees when their equal pay claims were upheld.

Disabled Employees not entitled to extended sick pay

The question whether employers are required by the Disability Discrimination Act to continue paying contractual sick pay to disabled employees, even though the normal sick pay period has expired, has now been considered by the Court of Appeal in O'Hanlon v HM Customs & Excise. To the relief of employers the Court has confirmed that it will be a rare case where payment of extended sick pay is necessary. Of particular relevance was the fact that extended sick pay could operate as a disincentive to return to work and could also create animosity between disabled and non-disabled workers.

Cases referred to in this update:

Azmi v Kirklees MBC EAT/0009/07/MAA; Commerzbank v Keen [2006] EWCA Civ 1536; Takacs v Barclays Services Jersey Ltd Case No 05X03074, 13 July 2006; McMenemy v Capita Business Services Ltd [2007] CSIH 25XA91/06; St Helens Borough Council v Derbyshire [2007] UKHL 16;O'Hanlon v HM Revenue & Customs [2007] EWCA Civ 283.

www.pinsentmasons.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.