Page 24 - Independent Schools Magazine
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Religious dress at School
A lot of people have scoffed at the news that a London receptionist could be
sent home for refusing to wear high heels (2-4 inches to be precise). Of course an employer should not impose this requirement on its employees, and the Government quickly agreed, stating that it was unlawful for employers to do so. However, similar controversies arise in the case of religious dress, says Donald MacKinnon.
This has been propelled into the spotlight again recently following the European Court of Justice decision in Achbita v G4S Secure Solutions. G4S, in Belgium, had a policy of neutrality that prohibited
the wearing of any political, philosophical or religious apparel. An employee, Ms Achbita,
was dismissed because of her continuing insistence on wearing an Islamic headscarf to work. She challenged this in the Belgian courts.
This is a bit of a complicated case in that Ms Achbita claimed for direct discrimination which was essentially the wrong claim. Direct discrimination is where somebody can compare their situation to that of another person’s and say ‘I have been discriminated against’. This policy of neutrality was applied to everybody who worked for G4S so this was not an example of direct discrimination. However, the Court did say that the G4S policy could be viewed
as indirect discrimination. The policy would place Ms Achbita at a disadvantage as a result of her religious belief, a protected characteristic under EU law.
Unlike direct discrimination, indirect discrimination can sometimes be justi ed and will therefore not necessarily be unlawful. To rely on a defence of justi cation, an employer must show that there is a legitimate aim (ie a real business need) and that the practice is proportionate to that aim (ie necessary and there is no alternative less discriminatory means available).
neutrality, if it only applies to customer-facing roles, could be legitimate. It also found that banning visible signs of political, philosophical or religious beliefs could be a proportionate and appropriate way to achieve this policy.
The best known example in the UK was the recent case where the European Court ruled that British Airways’ uniform policy impinged on the employee’s religious freedom by demanding she concealed a cross in accordance with their policy prohibiting the wearing of visible adornments. It was decided that although BA’s desire to protect its corporate image might be legitimate, preventing this employee from wearing her cross necklace was not a proportionate means of achieving this. This was especially true because BA had allowed other religious clothing such as turbans and hijabs to be worn without apparently negatively affecting their corporate image.
On the other hand, the same court held that a hospital could prevent its employee from wearing a cruci x on health and safety grounds. There were concerns that a patient could pull on it or it could swing into an open wound and this was seen as a legitimate reason and proportionate in the circumstances.
There are some cases which
are of particular interest to schools. For example, a court held that a refusal to allow the wearing of a jilbab (a garment which covered the full body including the feet) in a nursery was not discrimination. The nursery argued that the garment
Donald MacKinnon
presented a tripping hazard and a requirement that clothing should not pose a risk to children and staff could not be viewed
as discrimination. Clearly, if the dress code is used to achieve
a legitimate aim (safety) and done proportionately, it can
be justi ed. In this instance,
the request to wear a shorter jilbab rather than banning them altogether was proportionate.
Another school example occurred where a Muslim teacher was
asked to remove her veil when teaching children. The employer argued that the spoken word was reinforced by body language and facial expressions and the children would learn better if they could see their teacher’s entire face. The court agreed that such a policy
was justi ed and proportionate when the aim was the provision of best quality education and the instruction was only to remove the veil when teaching.
Whilst it could be argued in a school that a child’s education is a legitimate aim, it would not be acceptable to ban religious dress purely at the request of parents. In the G4S case it was stated that they could not have imposed a ban on religious dress, simply because customers requested it. While this ruling on the policy
of neutrality has been assigned high importance, companies and schools alike should not take it
as con rmation they can ban religious dress in the absence of adequate justi cation.
The Court decided in this case
that protecting an image of
Email: info@lawatwork.co.uk Tel: 0141 271 5555 Visit: www.lawatwork.co.uk
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