What should employers do when faced with requests for allowances to be made at work on religious grounds? Helen Badger takes a look at the law

The media spotlight has recently focused on the issue of religious discrimination in the workplace. The education environment has been particularly under its glare following the suspension of the school teacher Aishah Azmi, and her subsequent tribunal claim.

Ms Azmi, a teaching assistant in a West Yorkshire school, was asked to remove her niqab, a face veil worn by some Muslim women that leaves only the eyes visible, because pupils found it hard to understand her during English language lessons.

The tribunal found that suspension of Ms Azmi did not amount to discrimination on religious grounds, although she was awarded £1,000 for victimisation because the school had not followed grievance procedures correctly.

Other high-profile cases

There have been other, similar high-profile cases in the news recently. These include that of Shabnam Mughal, a legal executive who was asked to remove her niqab by a judge at an immigration tribunal in Stoke on Trent, because he could not hear what she was saying properly. Ms Mughal refused and her firm handed conduct of the case over to another advocate.

Nadia Eweida, a British Airways ground crew member, sued her employer for religious discrimination after being told that she could not wear a crucifix unless she concealed it beneath her uniform. She lost her appeal.

Whilst the law on religious discrimination is not new, having been introduced in 2003, the glut of recent cases has put the issue at the front of employers’ minds. For background and more detail on the law, see Education Law Update issues 36 and 62 (for back issues call 0845 450 6404).

Education bill

It is worth noting that the Education and Inspections Bill underwent a last minute amendment, giving religious schools increased powers to refuse to employ staff of faiths different to that of the school.

The Government has been able to do this by virtue of a provision in the Employment Equality (Religion or Belief) Regulations 2003, which gives a defence to a discrimination claim in circumstances where being of a particular religion is a genuine occupational requirement of the job. This issue will be explored later in this article.

Dealing with religious requests

Navigating the minefield that is workplace discrimination is difficult at the best of times, particularly where contentious and sensitive issues like religion are involved. So what should employers do when faced with requests for allowances to be made at work on religious grounds?

This article will outline the legal background to religious discrimination law, and look at how to balance pupil and staff needs.

The law

The law on religious discrimination is contained in the Employment Equality (Religion or Belief) Regulations 2003. These regulations prohibit discrimination on the grounds of a person’s religion or belief in the following forms:

Direct discrimination: where an employer treats a candidate or employee less favourably than it would treat others, on the grounds of religion or belief.

Indirect discrimination: where an employer applies a provision, criterion or practice equally to all staff, but this puts, or would put, a particular religious group at a specific disadvantage when compared to others. Such rules do not constitute indirect discrimination if the employer can show that they are a proportionate means of achieving a legitimate aim.

Victimisation: where a current, prospective or former employee is treated less favourably than others in the workplace on the grounds that s/he has carried out a ‘protected act’.

Protected acts include:

  • bringing proceedings against the employer under the Employment Equality (Religion or Belief) Regulations 2003
  • giving evidence in connection with such proceedings
  • alleging that the employer, either directly or vicariously through one of its employees, has committed an act that would amount to a contravention of these regulations

For victimisation to be established, it is not necessary for the complainant to have carried out a protected act. It is sufficient to establish that the employer suspected s/he did, or intended to do, any such act.

Harassment: where an employer, either on its own behalf or through the actions of an employee, engages in unwanted conduct that violates an individual’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for that person.

Implications for employer

So what does this all mean for the employer? Do employees have the right to express their religion and belief in any way they wish within the working environment?

Thankfully for employers, no.

A candidate or employee does have the clear right not to be discriminated against in the workplace. It does not take a legal expert to realise that an employee teased about wearing a turban at work is the subject of harassment, or that denying promotion opportunities because a staff member is of a different religion would be direct discrimination.

But often, the potential for discrimination is much more subtle, and it is indirect discrimination that causes most of the problems within the workplace.

Recently publicised cases involving the rejection of specific dress requirements are all about indirect discrimination. In each case, the employee’s argument has been that the employer has applied a provision, criterion or practice, i.e. a prohibition of certain items of clothing or jewellery that puts employees of a particular religion at a disadvantage when compared with others.

The case of the veil

In the case of the Muslim classroom assistant, the practice applied was that employees responsible for teaching classes could not wear items of clothing that covered the employee’s face. This puts Muslim employees at a disadvantage when compared with other workforce groups, as it prevents them from wearing the niqab, which some Muslims believe is a religious requirement.

At first sight, this appears to be discriminatory. But the law allows employers to defend an indirect discrimination claim by proving that the provision, criterion or practice in question amounts to a proportionate means of achieving a legitimate aim.

What is ‘a legitimate aim’
This is the crux of the issue. The school’s aim must be to give the children the best possible education, and any barriers to that aim should be removed. Ms Azmi’s school clearly believed that the niqab was a bar to that aim. The question is, then, whether the insistence on its removal was a proportionate means of achieving that aim. The tribunal in this case held that it was.

Of course, it is not only the wearing of religious dress or jewellery that can cause problems for employers. The regulations affect many other everyday workplace issues, such as requests for time off for religious holidays, and dietary requirements dictated by a person’s religion.

The key in all of these situations is for an employer who receives such a request to consider carefully what aim it is trying to achieve, and whether the rejection of a request is a proportionate means of achieving that aim.

Where the employer has given genuine consideration to a request, balanced the employee’s needs against organisational requirements, and considered any possible compromises, the company should be in a position to defend any claim in the event it has to reject the request.

Recruitment policy

The other issue for the education sector is whether employers can enforce a policy of recruiting teachers only from a particular faith and rejecting candidates from other religious backgrounds. Provision is specifically made for this in the recently amended Education and Inspections Bill, as already mentioned. On the face of it, this appears to allow discrimination on religious grounds — but this is not necessarily so.

‘Genuine occupational requirement’
The regulations do provide a specific defence to claims of direct discrimination in circumstances where being of a particular religion or belief is a ‘genuine and determining’ occupational requirement for the job.

To rely on this defence, an employer must be able to establish that the alleged occupational requirement is proportionate in the particular case.

Example: A recognised Church of England school may be able to insist that all of its teachers are practising Christians, thereby rejecting applications from candidates of any other religion. If challenged, the school would have to establish that one of the aims of the school was to actively promote the Christian religion amongst its pupils — and that this aim could only be achieved by employing practising Christians to teach in the school.

‘Genuine’ and ‘determining’
The occupational requirement must be genuine and determining, and be proportionate in the case in question.

It will be necessary to consider the requirements of the job very closely. Religious discrimination is only likely to be lawful in cases of those involved in religious services, whose job involves teaching or promoting religion. Jobs that are ancillary to the religion are unlikely to be covered.

The defence would not succeed, for example, in a claim by a Christian rejected for a secretarial post in a Muslim school. There is probably no occupational requirement for secretarial staff, cleaners or other support staff not responsible for the teaching or welfare of pupils to be of a particular religion.

The ‘specific’ or ‘religious organisations’ defence
There is a further defence against discrimination claims based on the occupational requirement for the job. This is known as the ‘specific’ or ‘religious organisations’ genuine occupation requirement defence.

It applies where: an employer has an ethos based on religion or belief, and having regard to that ethos and the nature of the employment or the context in which it is carried out, being of a particular religion or belief is a genuine occupational requirement for the job.

This would apply to spiritual posts in churches, mosques, synagogues and temples but it is unclear whether it would extend as far as a Roman Catholic nursing home, Halal butchers or Christian youth groups.

As with the general defence, in order to rely on it, an employer would have to establish that it was proportionate to apply the occupational requirement in a particular case. This is likely to involve dealing with the potential adverse impacts of employing a person of a different religion and the damage this could have to the religious ethos or the organisation.

The religious organisations genuine occupational requirement is broader, in that being of a particular religion or belief only has to be a requirement, not a determining requirement (i.e. decisive) as with the general GOR. This will make it easier for religious organisations to discriminate on the grounds of religion.

Positive action

A final point of interest about these regulations is the right for employers to encourage applications from and provide training to
under-represented groups.

This will entitle an employer to take positive action to attract employees from a particular religious group if they are under- represented in the organisation. Placing advertisements in mosques, aimed at encouraging applications from Muslims would not be an act of unlawful discrimination.

Giving preference to minority groups, for example by recruiting a Jewish candidate rather than a Christian one because the organisation already employs many Christians but no Jews, will however amount to discrimination against majority groups. This goes beyond the realms of positive action and amounts to direct discrimination.

Helen Badger is an associate solicitor at Browne Jacobson

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