Azmi v Kirklees Metropolitan Borough Council
As with nearly all discrimination legislation, the Employment Equality (Religion or Belief) Regulations 2003 outlaw both direct (less favourable treatment) and indirect discrimination on religion or belief grounds.
In Azmi v Kirklees Metropolitan Borough Council the Employment Appeal Tribunal (EAT) said that, although Mrs Azmi had been subject to indirect discrimination when asked to remove her veil in the classroom, the school had been justified in doing so.
Background facts
Mrs Azmi started work as a bi-lingual support worker (BSW) at a junior school in Leeds in September 2005. She attended her interview and an initial training day wearing a tunic and headscarf, but with her face uncovered.
During the first week of term, she asked if she could wear the veil when working with male teachers. The headteacher was unsure and sought guidance from the education authority. In the meantime, he and another teacher carried out standard classroom observations on Mrs Azmi. Both concluded that the children needed to see her facial expressions in order to develop their language skills, and she was therefore asked to remove it when working directly with children.
Following the receipt of guidance from the education authority, the headteacher had a meeting with her in early November 2005. The follow-up letter asked her to be unveiled at school from 16 November. She saw the headteacher that day and said she could not follow that instruction and went off sick until 20 February 2006.
On her return, she indicated that she wished to remain veiled and was suspended on 23 February. She claimed she had been discriminated against on the basis of her religion, and victimised for bringing a claim.
Direct discrimination
The tribunal decided that Mrs Azmi was not treated less favourably than a comparator (it picked a non-Muslim who covered their face) in similar circumstances. Instead, it said that, given the importance of non-verbal communication, anyone whose face and mouth were obscured would have been suspended.
She appealed on the basis that the tribunal should have compared her with another Muslim woman who covered her head, but not her face. But the EAT agreed with the tribunal. It said the comparator must be a person who had been given the same instruction as Mrs Azmi - to remove her face covering. That meant the comparator had to be someone with a face covering.
Indirect discrimination
The tribunal then considered whether Kirklees MBC had applied a “provision, criterion or practice” (PCP) which, although applied to everyone in the workplace, disadvantaged Mrs Azmi because her religious belief required her to wear the veil.
Both the tribunal and the EAT accepted that the “apparently neutral” PCP (that Mrs Azmi should not cover her face or mouth) put her at a disadvantage in comparison to others. But was it a proportionate means of achieving a legitimate aim?
The tribunal decided that, because she was only asked to remove her veil when teaching children (and this was because of the impact on her communication levels), the school had adopted a “proportionate means” to achieve its aim of raising the children’s educational achievements.
And again the EAT agreed. It said that the school had investigated other ways of achieving its aim without imposing this requirement on Mrs Azmi, and that the tribunal had not, therefore, been wrong to decide that the indirect discrimination was justified.
Comment
It is important to note that the EAT's ruling applies only in the context of the direct teaching environment where the employer has adopted a religiously neutral policy about what people can wear. Outside the context of face to face teaching, employers will not be able to rely on the decision of the EAT as a precedent permitting them to discriminate against those wearing the veil.
It is also worth noting that the EAT rejected the school’s argument that all discrimination based on any manifestation of a religious belief must be treated as indirect discrimination and therefore be capable of justification.
This ruling leaves open the possibility that direct discrimination may occur in respect of manifestations of religious belief such as wearing a cross, the veil, the Hijab, the Kirpan or other religious symbols or clothing.