Whilst most schools would not intentionally discriminate against staff because of their religion, they need to be aware of policies or practices that are inadvertently discriminatory. Schools can also find themselves in difficult situations when trying to balance rights of individuals that are, on the face of it, incompatible. Here are some recent examples of case law in this area and developments in best practice.
Schools often have dress codes for staff to ensure that the highest standards of professionalism are maintained and staff set appropriate examples for students. Some requirements are linked to concerns over health and safety and welfare. Whilst schools do need to ensure that dress codes are compatible with individuals’ rights under the Equality Act, in recent cases the courts have generally been supportive of employers if there are genuine and proportionate reasons behind dress requirements.
In a recent case Begum v Pedagogy Auras UK Ltd (t/a Barley Lane Montessori Day Nursery) the Employment Appeal Tribunal (EAT) upheld that a nursery’s decision to place a limit on the length of a jilbab (a garment worn by some Muslim women), so as not to cause a tripping hazard, was not discriminatory.
Ms Begum applied for a job as a nursery assistant. Following a successful trial, Ms Begum was invited to interview. She was offered the job during the interview and the dress code was discussed. During the half-day trial it had been observed that the full-length jilbab she was wearing covered her shoes and could present a tripping hazard. Ms Begum was asked if she would consider wearing a slightly shorter jilbab so as not to cause a potential tripping hazard. During the interview there was no indication that this request had caused any offence to Ms Begum’s religious belief and she was expected to start work at the nursery the following week. In fact, Ms Begum did not start work and brought an employment tribunal claim for discrimination on the grounds of religious belief, claiming that she had been subject to a detriment for being asked about the length of her jilbab and that the dress code discriminated against her.
It was found that the nursery was a workplace in which Muslim women were able to wear jilbabs, as long as they did not present a tripping hazard. As such, there was not found to be a discriminatory practice. Furthermore, it was noted that even if there was a practice which may have a discriminatory effect, it would have been justified on health and safety grounds.
In another case, the courts found that it is a legitimate stance for schools not to permit full-face coverings both for the purpose of identifying staff for safeguarding reasons and to enable optimum interaction with pupils.
Freedom to express homophobic views?
Another recent case considered the rights of individuals to express their views even though these could be perceived to be homophobic. Mbuyi v Newpark Childcare (Shepherds Bush) Limited is the latest in a line of cases that considers the balance between the rights of different ‘protected groups’ in the workplace.
In Mbuyi the Employment Tribunal (ET) found that a Christian nursery assistant was subject to religious discrimination, when she was dismissed for expressing her belief that God does not approve of homosexuality to a lesbian colleague.
Ms Mbuyi, who was an evangelical Christian, had stated that “God is not okay with what you do” during a conversation instigated by a lesbian colleague (the colleague had asked Ms Mbuyi about her views). The colleague in question was upset by this comment and Ms Mbuyi was sent home and asked to attend a disciplinary hearing.
During the disciplinary hearing, Ms Mbuyi was questioned on her comment to her colleague, to which she replied “I can only tell the Biblical truth. I am not a homophobic person but I believe homosexuality is a sin and God doesn’t like that”. Ms Mbuyi was dismissed. She then brought successful claims against Newpark for harassment, direct discrimination and indirect discrimination on the grounds of her Christian belief.
In its decision, the ET was particularly critical of the fact that Newpark had relied on stereotypical assumptions of Ms Mbuyi’s beliefs. It also commented that the decision to dismiss Ms Mbuyi was disproportionate in the circumstances and that its finding might have been different, for example if the nursery had issued a previous warning to Ms Mbuyi or there was a clear procedure in place concerning the airing of religious views in the workplace.
These cases follow the landmark European Court of Human Rights decision in Eweida and Chaplin v. the United Kingdom and Ladele and McFarlane v. the United Kingdom which concerned the right for employees to wear a cross at work.
Although these latest cases are fairly fact-specific, they do provide some helpful further guidance.
Not all schools have dress codes for staff, but they are becoming more common. It is essential that all requirements are considered carefully and impact-assessed to identify whether they may have an adverse impact on any protected groups. Schools need to be alert to the risk of a potential challenge to dress code requirements on religious grounds and ensure that all requirements are justified, proportionate and that alternatives have been explored. It is helpful for dress codes to make it that staff who have concerns can discuss the dress code and any requests for flexibility should be given due consideration.
How to manage the expression of views is more difficult in an educational setting. Guidance from the Equality and Human Rights commission advises that employers should not prevent individuals discussing their personal beliefs in the workplace. However, this does not give staff complete freedom to make statements or have conversations that may constitute harassment of others. Harassment, in this context, is unwanted conduct that is reasonably viewed as violating dignity, intimidating, hostile, degrading, humiliating or offensive to other people. It can be difficult to balance managing the expression of views that may be offensive to some within the school community, whilst encouraging the freedom of expression and academic debate. Views around religion and belief are often strongly held and can be divisive. We would recommend that schools provide training on equality and diversity for staff and provide guidance to staff on how to appropriately discuss such matters with colleagues, pupils and parents.
Schools may be justified in limiting the freedom of employees to promote their beliefs, particularly where this may influence pupils. It may be helpful for schools to provide guidance to staff on how to respond to direct questions from pupils on potentially sensitive issues.
Alice Reeve is an employment partner at leading education law firm Veale Wasbrough Vizards.