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It should come as no surprise that Equality Act claims in the Employment Tribunals account for more than one third of all claims each year. Gender and equal pay claims are consistently the most common of these, but an increased awareness of disability and religion and belief discrimination rights has led to a rise in the number of these types of claim. We take a look at topical cases on different aspects of religion in the workplace.
Most recently, in Achbita and another v G4S Secure Solutions NV, a Belgian employee of G4S who was dismissed for insisting on wearing her headscarf at work because of her Muslim belief was found not to have been the subject of unlawful discrimination by the European Advocate General.
This follows the French employee who refused to remove her veil at work, which she wore as a manifestation of her Muslim beliefs. The European Courts, in Ebrahimian v France, found that her employer’s insistence that she remove the veil was not in breach of her human rights.
In both of these cases, the employer successfully defended religious discrimination claims on the basis that their policy that “no religious, political or philosophical symbols” could be worn whilst working was justifiable. The employers’ objective was to ensure that their service was provided neutrally from a religious and ideological perspective given their wide range of customers in both the public and private sectors.
In the UK, the Employment Appeals Tribunal (EAT) in Azmi v Kirklees Metropolitan Borough Council has similarly upheld an employer’s right to require a bi-lingual support worker in a school not to wear a veil (which covered all but her eyes). The requirement that she wore clothing that did not cover face or mouth or would not interfere with her ability to communicate with pupils was deemed a proportionate, justifiable means of ensuring best education.
Therefore, whilst in all cases the policy, provision or criterion (PCP) was potentially indirectly discriminatory, they were objectively justifiable.
Employers should ensure that if they have a workplace dress code they take into account the good practice recommendations in the Acas guidance on religion or belief and the EHRC Code of Practice.
Another recent religious discrimination case, Pendleton v Derbyshire County Council and The Governing Body of Glebe Junior School, concerned a teacher who was dismissed for standing by her sex offender husband because of her Christian belief in the sanctity of marriage. She was found to have been unfairly dismissed and subjected to indirect religious discrimination. She believed in the sanctity of marriage, subject to the full repentance of her husband, and refused to choose between her husband and her job. She asserted that her responsibilities toward safeguarding of the children in her school were not in any way eroded by her husband’s conviction. There was no allegation that she was involved at all or implicated in any way in his activities.
This is a highly emotive subject, but raises interesting points with regards to religious discrimination. The EAT considered the fact that the case involved unusual circumstances did not prevent the employer’s response of dismissing her being the operation of a practice for indirect discrimination purposes. Although the employer had not applied the practice previously their evidence was this is how they would respond in this situation. In looking at group disadvantage, the comparison should be made with people in long-term loving relationships but who didn’t share Ms Pendleton’s religious beliefs and who were given the same choice between their career and their long-term partner. The EAT considered that there was a particular disadvantage for those who held a religious belief in the sanctity of marriage as they would suffer a crisis of conscience if put in this position. This case shows there can be a practice, even for one-off unusual instances, if the circumstances indicate that is how the employer would respond.
This article was written by Emma Bartlett.