A host of religious discrimination clams has emphasised the difficulties that employers face in accomodating other faiths. But why are so few hear at tribunals? Camerin Timmis reports.




Religious discrimination is in the spotlight. Last month, Muslim teaching assistant Aishah Azmi sued Kirklees council after her employer, Headfield school, dismissed her for refusing to remove her veil while teaching. An employment tribunal rejected Ms Azmi’s claim for discrimination, but accepted she had been victimised. Ms Azmi is considering an appeal.



This month, Muslim policeman Amjad Farooq launched a claim against the Metropolitan Police after he was removed from an elite armed protection unit for failing a security check – his children had allegedly attended a mosque associated with a radical Muslim cleric. Meanwhile, a Christian British Airways employee, Nadia Eweida, also hit the headlines recently after a dispute over her wearing a small, silver Christian cross outside her uniform, contrary to the company’s dress code. Having lost an internal BA disciplinary inquiry, she will now look at a religious discrimination claim.



Despite this spate of recent high-profile cases, religious discrimination claims are rare. In the three years since religious discrimination law was introduced – through the Employment Equality (Religion or Belief) Regulations – only around 850 employment tribunal claims have been submitted. That is a tiny figure compared with, say, the 45,000 sex discrimination claims filed over the same period. Far fewer actually reach tribunal – in 2005/06, there were only 70 cases heard, of which just nine were successful. Even fewer cases have reached appeal; the first Employment Appeal Tribunal (EAT) case, Mohmed v West Coast Trains [2006] UKEAT 0682 05 3008, involving a Sikh train-company employee and the length of his beard, was heard earlier this year. The appeal failed, with the tribunal ruling he had not been dismissed for refusing to trim his beard.



Some lawyers maintain that the lack of claims indicates that employers are generally complying with the regulations. ‘We’ve had no claims at all,’ says Graham Shaw, an employment partner at Bristol firm TLT. ‘We’ve had a few queries from clients. They tend to centre around people requesting holiday entitlement on religious days, and I’ve had one or two queries over interviewing and employers getting into difficulty when they ask people questions about religion.’ Mr Shaw emphasises that the firm has dealt with fewer queries on religious discrimination than before the regulations came into force. ‘It may well be that clients have got the message.’



Others suggest the paucity of cases could be because employees are not comfortable about asserting their religious rights – a view shared by Nick Whittingham, practice manager at the Kirklees Law Centre in Dewsbury, Yorkshire, and solicitor to Ms Azmi. ‘Our client says she knows a number of people who wanted to wear a veil and had problems [at work] but didn’t feel confident enough to assert their rights… it relies on people having a certain confidence and conviction.’



The Azmi case was the first religious discrimination claim handled by the centre. Mr Whittingham says it is ‘difficult to know’ whether the recent flurry of cases indicates an upward trend in such claims, although he suspects there ‘could well be’ more in the future as a result of the media attention.



Eversheds employment partner Naeema Choudry suggests it is simply a matter of time before the number of claims increases: ‘When a new piece of legislation is introduced, it does take a few years for claims to start trickling through.’ Because of the media focus, she suspects ‘there will be more cases, certainly in the short term’.



Barrister Paul Diamond, a religious rights specialist who is advising Ms Eweida in her claim against BA, also predicts more claims – but for different reasons. He regards religious rights to be increasingly under threat from what he describes as a ‘militant secularism’ and ‘secular’ employers. Mr Diamond, who principally acts for Christian groups, is also representing two school pupils in Horsham, Sussex, banned from wearing Christian chastity or ‘purity’ rings while in school.



Whether or not the volume of employee discrimination cases will increase, what is clear is that religious discrimination will continue to be a difficult and emotive issue for employers.



Of the claims that have been brought, says Ms Choudry, most have involved indirect discrimination – that is, where a ‘provision, criterion or practice’ puts people of a certain religion at a disadvantage. Under discrimination law, for such a practice to be lawful, employers must show it is justified, or a ‘proportionate means of achieving a legitimate aim’.



It is particularly important for employers to realise the onus is on them to accommodate employees’ religious beliefs, says Ms Choudry. She cites employees taking time off for religious holidays as an example of a situation where employers would be expected to be flexible and try to meet employees’ requests before prohibiting leave. Indeed, in Khan v NIC Hygiene [2005] ET 1803250/04, a Muslim worker who was fired after going on a six-week Hajj to Mecca won a case for religious discrimination. ‘The court will balance the needs of the business with the needs of the individual,’ she says. ‘If an employee took time off and they [the company] lost a huge order, that could be justifiable.’



The key questions for employers, says Ms Choudry, are: ‘Why have you got the policy, what is the business reason for it, and is it consistent?’ She warns: ‘Simple inconvenience and “this is the way it’s always been” will not be sufficient in the eyes of the tribunal. They must have damn good reasons.’



Dress code – and particularly the sensitive issue of employees wearing veils – is another area most predict will continue to be a fraught one for some employers.



‘If there is a dress code in place that says people can’t wear a veil, or people can’t wear any clothing that Muslims are required to wear, the employer is going to have to justify that policy,’ explains Jane Amphlett, head of discrimination at national firm Addleshaw Goddard. ‘For many employers, that’s going to be extremely difficult. Obviously the Jack Straw comment – simply saying you find it uncomfortable because you can’t see someone’s expression – that’s not going to be sufficient… but if you can demonstrate there’s a customer preference, a genuine preference and it’s proportionate, it may be justifiable.’



Dress codes may be easier to enforce, says Ms Amphlett, where health and safety issues arise. ‘It is not as difficult to justify, but there have been cases where a food company asks someone to wear a company hat over a turban – the tribunal had no truck with that.’



Another area of potential difficulty identified by Ms Amphlett – and one where her firm has had a number of enquiries from clients – concerns Muslim employees being required to sell alcohol in shops or serve alcohol in restaurants against their beliefs. Again, she says, employers will be expected to ask other members of staff to cover that particular role (in a shop or restaurant).



What is critical, she explains, is that employers must have ‘hard evidence’ of why they need to enforce a particular practice. ‘It’s no good employers saying what they believe to be the case.’



Although claims of indirect discrimination are more common, some practitioners expect an increase in claims on the basis of direct religious discrimination.



This is because of a the concept known as the ‘manifestation’ of religious belief – whether outward symbols of religious belief such as jewellery and religious dress could fall within the ambit of direct discrimination. This is an important distinction as, unlike indirect discrimination, there is no defence of justification in the case of direct discrimination.



One view, based on previous Department of Trade and Industry guidance on the regulations, would appear to be that direct discrimination only applies to a person’s actual belief, and not its outward manifestation.



However, Mr Whittingham reckons this is an untested point. It was one of the key arguments deployed in the Azmi case – the claimant argued that wearing a veil was a manifestation of her religion and asked for a referral to the European Court of Justice on the issue. The tribunal rejected this part of the claim; it also rejected Ms Azmi’s claim for indirect discrimination.



According to Mr Whittingham, this was because it did not accept her contention that by not being allowed to wear a veil, she had been disadvantaged compared with other Muslims. ‘The tribunal decision was that the correct comparator should be a non-Muslim person who wished to cover their face with a balaclava or bandages.’



For now, the law remains unclear. In perhaps the leading case in this area, Copsey v WWB Devon Clays Ltd [2005] EWCA Civ 932, Mr Diamond, counsel to the appellant, argued that Stephen Copsey’s refusal to work on a Sunday was an infringement of his freedom to manifest his religious beliefs under article 9 of the European Convention of Human Rights.



The court dismissed his appeal, ruling that an employee could not assert article 9 in relation to working hours, and that the employer had not failed to make reasonable accommodation for the appellant’s religious (Christian) beliefs. However, according to Mr Diamond, ‘the judgment is very difficult to understand. I’m not sure what precedent it set; it was a three-way split.’



Even with the introduction of the regulations and the safeguards of the convention, Mr Diamond fears that religious rights continue to be imperiled – and he thinks he knows why. ‘Religious groups tend to be counter-culture, which is a problem in a conformist society,’ he says.



Cameron Timmis is a freelance journalist