EAT rejects Muslim teaching assistant's veil appeal

An employee who was dismissed for refusing to remove her veil while teaching had not been discriminated against on the grounds of religion or belief, finds the Employment Appeal Tribunal.

Mrs Azmi was employed by Kirklees Metropolitan Council as a bilingual support worker at Headfield Church of England School. She is a devout Muslim and wears a veil that covers all of her head and face, save for her eyes, when in the presence of adult males. During her job interview, and on a training day before she started, she had worn a black tunic and headscarf and her face was not covered. She did not indicate during the interview that her religious beliefs required her to wear a veil. However, during the first week of term, she asked the school if she could wear the veil when working in the classroom with male teachers, which included periods when she was communicating with the children.

The school asked the education department at Kirklees Metropolitan Council for advice and it issued guidelines stating that 'obscuring the face and mouth reduces the non-verbal signals required between adult and pupil' and 'teachers or support workers wearing a veil in the workplace will prevent full and effective communication being maintained'. The school also attended lessons where Mrs Azmi wore a veil and concluded that 'wearing a veil in class had an adverse impact on [Mrs Azmi's] ability to perform her job effectively and impedes her effectiveness in supporting teaching and learning in the classroom'.

Mrs Azmi was given instructions that she should teach without the veil, but she refused to comply and was suspended. She brought claims under the Employment Equality (Religion or Belief) Regulations 2003 for direct discrimination, indirect discrimination, harassment and victimisation. The employment tribunal dismissed her claims for direct discrimination, indirect discrimination and harassment, but did award £1,000 for injury to feelings for victimisation.

In relation to Mrs Azmi's direct discrimination claim, the EAT rejected her argument that the tribunal had chosen the wrong comparator. The tribunal was correct to compare her treatment with a non-Muslim woman who covered her face and reject her argument that the comparator should have been another Muslim woman who covered her head but not her face. It would be unrealistic, and would not comply with the requirements of the law, to use a comparator who does not cover her face and who would not receive such an instruction or be exposed to risk of suspension for refusing it.

On the indirect discrimination claim, the EAT accepted that the employer's no-veil policy did amount to the imposition of a provision, criterion or practice that put Mrs Azmi at a disadvantage when compared to others not of the same religion or belief. However, the EAT went on to conclude that the employer had been able to show that the policy was a proportionate means of achieving a legitimate aim. The need to raise the educational achievements of the children was a legitimate aim, and the means chosen were proportionate, as the employer had allowed her to wear the veil at any time when she was not communicating with the children (for example, when talking to other teachers). The employer had also taken steps to assess the impact of wearing a veil when communicating with the children before imposing the no-veil policy.

The EAT also approved the tribunal's decision in relation to the alleged harassment, stating that it had not been perverse.

In addition, the EAT decided not to refer two questions raised by Mrs Azmi to the European Court of Justice, as they were not relevant to the decision. These related to whether or not the sort of circumstances encountered in this case could be a form of direct discrimination and the meaning of the phrase 'apparently neutral provision, criterion or practice' in the Employment Framework Directive.