Summary of key cases - uniform or dress

Wearing the niqab
In Azmi v Kirklees Metropolitan Borough Council, Azmi was recruited as a bilingual support worker, which required her to work as part of a team to support the learning and welfare of pupils, particularly ethnic minority pupils who were at risk of underachieving. Although at interview and in training she had worn the traditional headscarf (as did other Muslim staff at the school), prior to starting work she requested permission to wear the niqab at all times when in the presence of male colleagues.

Pending advice from the educational authority, the headteacher allowed her to start teaching wearing the veil. Her work was observed and a conclusion reached that she did not carry out her role as effectively when wearing her veil as when she was unveiled. In particular, it was her deemed that “verbal and non-verbal communication/facial expression/eye contact [was] vital". She was subsequently instructed by the headteacher that she should not wear the veil when teaching children.

Azmi lost her case because it was determined this did not constitute direct discrimination on grounds of religion, since based on its teaching methodology, the employer’s response would have been to bar anyone whose face and mouth was obscured. The correct comparator was a person, not of the Muslim religion, who covered her face for whatever reason, rather than a Muslim woman who did not wear the niqab, as was claimed.

As to indirect discrimination, the requirement not to wear clothing covering a considerable part of the face and/or mouth was a proportionate means of achieving a legitimate aim. Deciding proportionality took into account: the fact that the instruction was not given immediately, but that time was taken to consider the position; the instruction not to wear her veil was confined to times when she was teaching the children; and that there had been observations of the claimant's teaching before the instruction was issued.

The EAT judgment can be downloaded here (PDF format 192K).

Untidy hair
In Harris v NKL Automotive and anor, Harris, a Rastafarian, worked for NKL on a regular basis via an agency as an executive driver from April 2004 to February 2006. In February 2006 he complained about not being allocated work or being transferred to the company’s payroll like some of his co-workers and, shortly afterwards, was dismissed whilst signed off work.

NKL’s dress code included a requirement that drivers “should have a smart professional haircut and should ensure hair is tidy”. This did not rule out long hair as such and the wearing of caps, whilst not specified in the code, was permitted if requested.

A claim of direct discrimination failed because NKL was not aware of Harris’ beliefs until his grievance was submitted.

On indirect discrimination (that the dress code imposed a PCP in relation to long or dreadlocked hair which disadvantaged a Rastafarian), it was held that requiring tidy hair was a proportionate way of ensuring that the legitimate aim of showing a presentable appearance to customers and clients was achieved and that the PCP had not in practice been applied.

The EAT judgment can be downloaded here (PDF format 67K).

EFB Comment
These cases illustrate the importance of being able to show not only that any discrimination is in pursuit of a legitimate aim, but also that the measures taken to achieve the aim were appropriate and necessary. This may involve building up a body of evidence over an extended period of time and properly documenting this.