In the high profile case of Azmi v Kirklees MBC the EAT has held that a requirement that a Muslim teaching assistant remove her veil whilst teaching did not contravene the UK's religious discrimination laws.
The facts
Mrs Azmi worked as a bilingual teaching assistant. During her first week she asked to be allowed to wear a veil, which covered her entire face except for her eyes, whenever she was in the presence of a male adult. This request was refused on the basis that when she was veiled children could not get the visual clues they needed from her facial expression. She was therefore instructed to be unveiled whilst teaching. Mrs Azmi felt she could not comply and ultimately was suspended. She then issued a number of tribunal claims including claims for direct and indirect discrimination on the grounds of her religion and belief.
The decision
Both claims were rejected by an employment tribunal and their decision has now been upheld by the EAT.
As far as direct discrimination was concerned, the correct comparator was a person who covered their face for a reason other than religious belief. As such a person would also have been suspended, there was no less favourable treatment and the claim failed.
With regard to indirect discrimination, although the instruction to remove her veil put Mrs Azmi at a disadvantage, it could be justified as a proportionate means of achieving a legitimate aim (namely that the school children receive the best possible language teaching). As a result this claim also failed.
Practical Implications
Cases such as this always depend on their precise facts. However it is worth noting that the employer could adduce detailed and credible evidence of the balancing exercise it conducted before issuing the instruction to work unveiled. Not only did the head teacher observe Mrs Azmi's teaching before taking any decision, a number of alternatives (such as using a screen and changing her timetable) were also considered. This meant it was much easier for the employer to defend the case.
Discretionary Bonuses: An Update
Employers operating discretionary bonus schemes will welcome two recent developments, both of which are likely to deter legal challenges to bonus decisions.
The Commerzbank case
The first concerns the case of Commerzbank AG v Keen, decided by the Court of Appeal at the end of last year. The Court held that the Unfair Contract Terms Act did not apply to bonus provisions and therefore a contractual provision requiring an employee to be in employment at the date of payment of a bonus was enforceable. The Court also held that an employer must not exercise its discretion in respect of bonus payments ‘capriciously or irrationally’. However, where a bonus scheme gives the employer wide discretion, an employee will find it difficult to show this was the case, especially if the employer has given a credible explanation of the bonus calculation and there is no independent evidence to support the irrationality claim.
The House of Lords has now refused Mr Keen's application to appeal. This effectively upholds the Court of Appeal's reasoning and reflects a reluctance to intervene in an area where so much depends on fluctuating market conditions.
The Takacs case
The second development relates to Takacs v Barclays Jersey Services in which it was suggested, amongst other things, that there may be an implied term preventing an employer from firing an employee to avoid payment of a bonus. The case was due to go to full trial to be fully argued, but has now settled. Consequently the danger that wideranging implied terms might be developed in this area has, for the moment at least, receded.
Practical Implications
Despite these developments employers need to be wary, particularly if considering terminating an employee's contract solely to avoid paying a bonus. It is also important to give employees an explanation for any bonus decision. Lack of transparency could give rise to discrimination claims (particularly age and sex based claims) and could also give powerful support to an irrationality argument or an argument based on breach of the implied duty of trust and confidence.
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Do You Need To Know…? Part-timers and Bank Holiday Mondays The thorny issue of part-timers and bank holiday entitlement was considered recently in McMenemy v Capita Business Services Ltd. The Scottish Court of Session held that a part-time employee who did not work Mondays - and so missed out on a number of bank holidays - was not entitled to be given time off in lieu under the Part-time Workers Regulations. The case was somewhat unusual in that the employer operated seven days a week and applied the same rule to full-timers working Tuesday to Saturday as it did to part-timers like Mr McMenemy. This enabled the Court to find that Mr McMenemy's treatment was not on the ground of his part-time status but simply because he did not work Mondays. Despite this case, pro-rata apportionment of bank holidays will usually remain the wisest policy for employers to follow, especially as a female employee in Mr McMenemy's position might be able to bring a sex discrimination claim (which because of the difference in the statutory provisions would have a greater chance of success). Threatening letters to school dinner staff unlawful The House of Lords has held that an employer was acting unlawfully when it sent threatening letters to employees who had started equal pay claims against it. In St Helens Borough Council v Derbyshire the Council wrote to certain school dinner staff warning them that if they pursued their claims for equal pay, this could result in cuts to the school meals service and redundancies. Similar letters were also sent to their colleagues and caused much bitterness and resentment. The House of Lords was in no doubt that these heavy-handed tactics went beyond a reasonable attempt to settle the dispute and amounted to unlawful victimisation contrary to the Sex Discrimination Act. As a result the Council will now have to pay the dinner staff compensation which could run into thousand of pounds. This is on top of the sums already awarded to the employees when their equal pay claims were upheld. Disabled Employees not entitled to extended sick pay The question whether employers are required by the Disability Discrimination Act to continue paying contractual sick pay to disabled employees, even though the normal sick pay period has expired, has now been considered by the Court of Appeal in O'Hanlon v HM Customs & Excise. To the relief of employers the Court has confirmed that it will be a rare case where payment of extended sick pay is necessary. Of particular relevance was the fact that extended sick pay could operate as a disincentive to return to work and could also create animosity between disabled and non-disabled workers. |
Cases referred to in this update:
Azmi v Kirklees MBC EAT/0009/07/MAA; Commerzbank v Keen [2006] EWCA Civ 1536; Takacs v Barclays Services Jersey Ltd Case No 05X03074, 13 July 2006; McMenemy v Capita Business Services Ltd [2007] CSIH 25XA91/06; St Helens Borough Council v Derbyshire [2007] UKHL 16;O'Hanlon v HM Revenue & Customs [2007] EWCA Civ 283.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
