Azmi v Kirklees Metropolitan Borough Council

EAT: Wilkie J, Mr P Smith and Mr S Yeboah: 30 March 2007

The claimant was employed as a bilingual support worker at a school controlled by the respondent council. As a devout Muslim she was accustomed to wear a veil which covered her head and face when in the presence of adult males. Her request to wear a veil when teaching with male teachers was refused by the council's education department on the ground that obscuring the face and mouth impeded effective communication with the pupils, and she was instructed to be unveiled at all times in the class room, although it was conceded that she could continue to wear her veil in communal areas of the school. The claimant refused to remove her veil and was suspended for disobeying an instruction. She made a claim to an employment tribunal that she had been discriminated against directly and indirectly on grounds of her religion, contrary to regulation 3(1)(a) and (b) of the Employment Equality (Religion or Belief) Regulations 2003. The tribunal dismissed the claims, concluding that the correct comparator for the purposes of the direct discrimination claim was a person not of the Muslim religion who covered her face for whatever reason and any such comparator would also have been suspended; and that a "provision, criterion, or practice" not to wear clothing which interfered unduly with the ability to communicate, while indirectly discriminatory in that it put Muslims at a disadvantage, was lawful as a proportionate means of achieving a legitimate aim within regulation 3(1)(b)(iii).

The claimant appealed.

The Employment Appeal Tribunal held:
When determining, under regulation 3(1)(a) and (3) of the 2003 Regulations, whether the council had treated the claimant less favourably than it would treat another person in the same or not materially different circumstances and whether the less favourable treatment was on the grounds of religion or belief, the relevant comparator was a woman who, whether Muslim or not, for a reason other than religious belief wore a face covering. The employment tribunal had chosen the correct comparator and had been entitled to conclude that that person would have been suspended if she had refused to comply with the council's instruction. Given that a provision, criterion or practice not to wear clothing that interfered with the ability to communicate put persons of the claimant's belief at a particular disadvantage when compared with others, the tribunal had correctly carried out a stringent investigation of the alternative means of achieving the legitimate aim of ensuring that the children received the best possible instruction in the English language, and it did not err in concluding that the provision, criterion or practice was a proportionate means of achieving that aim for the purposes of regulation 3(1)(b)(iii).

The appeal was dismissed.

Appearances: Declan O'Dempsey (Kirklees Law Centre, Dewsbury) for the claimant; Peter Oldham (Legal Service, Kirklees Metropolitan Council, Huddersfield) for the council.