Kirklees Council has been praised by the Employment Appeal Tribunal (EAT). This was for the 'measured, careful and sensitive way' in which a headteacher and the Education Authority handled a difficult issue concerning a devout Muslim bi-lingual support worker (the employee) who had been suspended for disobeying an instruction not to wear a veil when assisting a male teacher. For on 30 March 2007 in Azmi v Kirklees Metropolitan Borough Council Wilkie J in the EAT found that the Employment Tribunal (ET) had been entitled to dismiss the employee's claims of direct and indirect discrimination.
When the employee was interviewed for the post in question she had worn a black tunic and headscarf and her face was not covered. At no time during the interview had she indicated that her religious beliefs required her to wear a veil or placed any limitation on her working. However, during the first week of term the employee asked if she could wear the veil when teaching with male teachers or whether arrangements could be made so she would not have to work with male teachers at all. The School concluded that it was not possible to isolate the employee from male staff since all the classes had some male teachers and in addition the employee was periodically required to liaise with other male members of staff.
Following advice on this issue produced by the Council's Education Department (which amongst other things indicated that wearing a veil in the workplace by teachers or support workers 'will prevent full and effective communication being maintained') the headteacher decided to undertake an observation of her work whilst she was wearing the veil. His conclusion was that it was readily apparent that the children in question were seeking visual clues [cues?] from her which they could not obtain because they could not see her facial expressions. He also thought that her diction was not as clear as it would have been if she were not wearing a veil. Consequently, the headteacher told the employee that she should not wear the veil when working directly with children in a classroom. Further observation of the employee took place (with and without the veil) which supported the earlier conclusions. A management instruction to the employee was subsequently issued that she be unveiled in School whilst working with children although there was no objection to her being veiled in other areas of the school providing she was not communicating with the children. Ultimately the employee refused to remove her veil when working with males and she was suspended.
Legal Issues
The EAT had to decide whether in the circumstances there had been direct or indirect discrimination in respect of the employee. EU Council Directive 2000/78EC established a general framework for equal treatment in employment and occupation and proscribed all direct and indirect discrimination on the grounds of religion or belief in relation to employment and occupation. The EAT described the Employment Equality (Religion or Belief) Regulations 2003 S.I. 2003 No. 1660 as 'the United Kingdom's attempt to pass domestic legislation giving effect to the general framework for equal treatment Directive in the sphere of religion and belief'. These provide (so far as material) that (per paragraph 3(1)) '. . .a person (A) discriminates against another person (B) if:
'(a) on grounds of religion or belief A treats B less favourably than he treats or would treat other persons; or (b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same religion or belief as B, but -
(i) which puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons;
(ii) which puts B at that disadvantage, and
(iii) which A cannot show to be a proportionate means of achieving a legitimate aim. . .
(3) A comparison of B's case with that of another person under paragraph (1) must be such that the relevant circumstances in one case are the same, or not materially different, in the other.'
The EAT accepted the conclusion of the ET that the comparator should be a person, not of the Muslim religion, who covered her face for whatever reason. On that basis the ET had concluded on the evidence before it that any such comparator would also have been suspended since that person's face and mouth would be obscured, which would be a barrier to effective learning by those children in circumstances where the Respondent's policy was that the education of children was paramount. The EAT was consequently entitled to conclude that the claim for direct discrimination failed.
As to indirect discrimination, the EAT noted that the argument was focussed on whether the ET had erred in law in concluding that the means chosen were proportionate. It had noted (amongst other things):
- The requirement was not imposed by the school immediately.
- The instruction was confined to those occasions when the employee was teaching the children and had the freedom to wear the veil at all other times.
- Before issuing the instruction there had been observations of the employee teaching and assisting the children.
The EAT also noted the well-established three stage test recited by Mummery LJ in R (Elias) v. Secretary of State for Defence [2006] 1 WLR 3213:
'First is the objective sufficiently important to justify limiting a fundamental right, secondly is the measure rationally connected to the objective, thirdly are the means chosen no more than is necessary to accomplish the objective.'
The ET had concluded that it was satisfied that the Council had demonstrated that the imposition of the provision, criterion or practice (see the 2003 Regulations) in question was a proportionate means of achieving their legitimate aim. Furthermore it found that the Council had done so (amongst other things) after having conducted a stringent investigation of the alternative means of achieving the aim by not imposing the requirement upon the employee and having accordingly concluded that the Council had discharged the statutory burden upon it. In the circumstances the ET did not err in law in deciding that the indirect discrimination that they found had been justified in terms of the statute. The employee's appeal on that aspect consequently failed. So, whilst there had been indirect discrimination this was a proportionate means of achieving a legitimate aim.
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