David Green and Brian Palmer are partners in the employment law team at Charles Russell.
As controversy around workplace dress codes hits the headlines again, David Green and Brian Palmer consider what employers can do to avoid embarrassing and costly religious discrimination claims.
The latest in a line of high profile cases of alleged religious discrimination has been resolved without recourse to a tribunal. But, the case, involving the catering firm Eurest, shows that employers must proceed with care when seeking to enforce dress codes.
Amrit Lalji, the employee at the centre of this case, was a cleaner and customer relations worker for Eurest, based in the British Airways VIP lounge in Heathrow. She wore a small nose stud, a Hindu symbol of her married status comparable to a wedding ring. She had been wearing the stud for more than a year without comment before she was instructed by a manager to remove it. When she refused to comply, she was suspended and subsequently dismissed.
Lalji has now been reinstated, but if she had not, a tribunal would have had to consider whether Eurest’s prohibition on jewellery piercing amounted to indirect discrimination under the 2003 Employment Equality (Religion or Belief) Regulations, which made discrimination based on religious or philosophical belief in the workplace unlawful. To succeed, Lalji would have had to have shown that this prohibition, although applied equally to all employees, put her and members of her religion at a particular disadvantage compared to individuals not of that belief. There is, however, a defence to claims of indirect discrimination if an employer can objectively justify its actions by showing that they are a proportionate means of achieving a legitimate aim or meeting a real business need.
The case of Azmi v Kirklees Metropolitan Borough Council (UKEAT/0009/07) is an example of how tribunals approach such issues. In that case the claimant, Azmi, was instructed to remove her veil when teaching. The Employment Appeal Tribunal found that this instruction did not amount to either direct or indirect discrimination as any teacher covering his or her face, for whatever reason, would be treated in the same way. The EAT went on to find that had it been indirect discrimination, the employers’ aim to provide the best quality education meant that any teacher had to be able to communicate fully with children and that Azmi’s veil prevented her from doing so. Requiring her to remove the veil while teaching was, therefore, a proportionate means of achieving a legitimate aim.
Looking in more detail at the Eurest case, it appears that the employer’s initial decision to dismiss Lalji was based on company policy that banned piercings and jewellery because they can harbour bacteria and create a hazard when employees are working with machinery and in food preparation. The difficulty for Eurest was that Lalji was a cleaner and customer-relations worker and did not have any involvement with catering.
Had the matter gone to tribunal, Eurest would have had difficulty justifying the requirement for Lalji to remove her nose stud, given the job she was doing. They seemed to recognise this and reinstated Lalji. A spokesperson for the company commented: "Since Ms Lalji is not engaged in catering, her dismissal resulted from a misunderstanding of the rules and is therefore unjustified."
The swift resolution of the Eurest case is in marked contrast to the case of a BA check-in worker, Nadia Eweida, who was suspended last year for refusing to stop wearing a small crucifix whilst on duty. She was suspended for four months and only reinstated following widespread criticism of BA and a campaign backed by almost 100 MPs and 14 Bishops, including the Archbishop of Canterbury. Eweida is still awaiting a tribunal decision on whether she should receive the pay that she had lost during her suspension.
BA is said to be reviewing its uniform policy to find a way to allow symbols of faith to be worn openly. The company already allows the wearing of veils and turbans for religious reasons, as it is not practical to keep these hidden under a uniform.
The number of tribunal claims of religious discrimination is still relatively low, with 307 cases in 2004-05, 486 in 2005-06 and 648 in 2006-07. But, the publicity they attract means these numbers are likely to continue growing.
While employers may consider that a blanket policy applying equally to all employees may offer them the best protection against potential discrimination claims, the above cases illustrate the need to give thought to dress code policies and the rationale behind them. The decision by Eurest in Lalji’s case, was no doubt taken following an assessment that it would have been very difficult to justify the ban on wearing jewellery when Lalji was not involved in catering. As well as probably losing the discrimination case and having to pay compensation, Eurest would also have faced adverse publicity. The decision, therefore, seems a sensible one in the circumstances.
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.
