It is reported in todays Irish Independent that a former sales assistant at Dunnes Stores, Loreta Tavoraite, has taken a claim in the EAT for unfair dismissal, because she was unable to go to work because she was not permitted to wear a religious head-dress there.
For religious reasons she wanted to wear a hijab (which is a headscarf that covers the hair, leaving the face exposed) at work.
In October 2010 Ms Tavoraite met with representative from the Company and explained her religion involved covering her head with a hat or scarf while in public. The Company contends that Ms Tavoraite was repeatedly advised that they (Dunnes Stores) wanted her to return to work but she never did.
At meeting in early November 2010, she was informed that if she continued not coming to work they would have to consider her contract and that it might be terminated. She was dismissed from her position on November 6, 2010.
This situation can be a difficult one to encounter for a business as the needs of the business must be balanced with the religious freedom of the employees. There is little in the way of case-law from Ireland on this subject however the issue of an employees standards of dress is nothing new to Dunnes Stores as in the case of
William Peter O'Byrne -v- Dunnes Stores concerned the dismissal of the employee for his refusal to wear a facemask at work or alternatively to shave his beard off in violation of the dress code. The employee claimed that such a requirement was discriminatory based on the ground of gender.
It was argued by the Dunnes Stores, that such a requirement could not be deemed discriminatory in that as far as women were concerned it could have no application except to a degree which could be disregarded. The Equality Tribunal found for the employee on the ground that the complainant's beard was neatly trimmed, the requirement that he wear a facemask transcended that which was conventional and also that it interfered with his right to determine his appearance to a greater degree than that regarding women.
In reaching this conclusion, the Tribunal considered the issue of whether or not the complainant should be allowed to wear a beard in conjunction with the respondent's dress code for men and women and stated that the nature of dress codes was that there could be a divergence in rules as regards men and women. Anti-discrimination law, it held, 'does not require that men and women be treated the same in every circumstance. What it requires is that they be treated equally'.
The religious ethos of an organisation can also have a baring on the outcome, as in the case of Flynn -v- Power [1985] IR 648 where an unmarried teacher who was working in a convent school was dismissed after becoming pregnant by her married partner. It was held to be reasonable to dismiss a teacher who was openly having a relationship with a married person in order to prevent the undermining of the religious ethos of the school. It should be noted that the
1998 Employment Equality Act was enacted over 10 years after this case.
Whilst Irish case-law is relatively spares on examples of this type of religious discrimination, in the UK there are far more examples of where this matter has been tested.
In the case of
Eweida -v- British Airways plc EAT 0123/08, Mrs. Eweida, a devout practicing Christian, was employed by BA plc as a member of the check in staff. BA's uniform policy prohibited customer-facing members of staff from wearing any visible item of adornment, unless it was worn because of a mandatory religious requirement and could not be concealed under the uniform.
On a number of occasions, Mrs. Eweida visibly wore a silver cross on a chain around her neck. On two occasions she complied with management requests to conceal the necklace. However on one occasion she refused to conceal the necklace and as a result was sent home without pay.
Her claims of religious discrimination were rejected by both the Tribunal and, on appeal, by the EAT. The EAT held that the purpose of indirect discrimination is to counter group disadvantage and that Mrs. Eweida had not shown that the prohibition on the wearing of jewellery had acted as a barrier to anyone other than herself. In effect, Ms. Eweida had not shown that the wearing of the cross was a mandatory requirement of her religion.
In the case of
Singh v. Rowntree Mackintosh Ltd. the Employment Appeal Tribunal held that requiring the employee, an orthodox Sikh, to shave off his beard in compliance with hygiene regulations at a food company did not constitute discrimination. The issue was 'whether the company had shown that the rule prohibiting beards at the Edinburgh factory was justifiable irrespective of colour, race, nationality or ethnic or national origins' and the company in fact did so on the grounds of hygiene. Regard was also had to what was objectively equitable and reasonable
In the case of
Aishah Azmi -v- Headfield Church of England Junior School [2007] IRLR 484 a British Muslim teacher, Ms Azmi, was suspended after she insisted on wearing her veil whilst teaching. She brought a claim for discrimination based on religious grounds before the Employment Tribunal. The school submitted that both pupils and teachers had raised concerns that they were finding it difficult to understand what she was saying and believed that face-to-face contact was essential to the performance of her role.
Furthermore the school insisted that her suspension had "nothing to do with religion" and that they were simply trying to ensure that the children got the best possible education, the claim for discrimination was overruled, however she was awarded compensation in light of her victimisation claim.
The EAT held that refusing the claimant permission to wear a veil, which she wore for religious reasons, was a proportionate means of achieving a legitimate aim given that:
- It was based on the need for facial expression and contact when teaching younger children;
- It had been decided only after considerable thought, consultation and advice from the relevant education authority and after observing a teaching session during which the teacher wore a veil; and
- The claimant was allowed to wear a veil in any open part of the school.
As mentioned Irish case-law is relatively sparse on this topic and perhaps the case of Tavoraite -v- Dunnes Stores may well represent somewhat of a landmark ruling on this matter. The case determination has yet to be published as the case is currently ongoing, however when we see a ruling on this we will be sure to update readers of the blog accordingly.
It is reported in todays Irish Independent that a former sales assistant at Dunnes Stores, Loreta Tavoraite, has taken a claim in the EAT for unfair dismissal, because she was unable to go to work because she was not permitted to wear a religious head-dress there.
For religious reasons she wanted to wear a hijab (which is a headscarf that covers the hair, leaving the face exposed) at work.
In October 2010 Ms Tavoraite met with representative from the Company and explained her religion involved covering her head with a hat or scarf while in public. The Company contends that Ms Tavoraite was repeatedly advised that they (Dunnes Stores) wanted her to return to work but she never did.
At meeting in early November 2010, she was informed that if she continued not coming to work they would have to consider her contract and that it might be terminated. She was dismissed from her position on November 6, 2010.
This situation can be a difficult one to encounter for a business as the needs of the business must be balanced with the religious freedom of the employees. There is little in the way of case-law from Ireland on this subject however the issue of an employees standards of dress is nothing new to Dunnes Stores as in the case of William Peter O'Byrne -v- Dunnes Stores concerned the dismissal of the employee for his refusal to wear a facemask at work or alternatively to shave his beard off in violation of the dress code. The employee claimed that such a requirement was discriminatory based on the ground of gender.
It was argued by the Dunnes Stores, that such a requirement could not be deemed discriminatory in that as far as women were concerned it could have no application except to a degree which could be disregarded. The Equality Tribunal found for the employee on the ground that the complainant's beard was neatly trimmed, the requirement that he wear a facemask transcended that which was conventional and also that it interfered with his right to determine his appearance to a greater degree than that regarding women.
In reaching this conclusion, the Tribunal considered the issue of whether or not the complainant should be allowed to wear a beard in conjunction with the respondent's dress code for men and women and stated that the nature of dress codes was that there could be a divergence in rules as regards men and women. Anti-discrimination law, it held, 'does not require that men and women be treated the same in every circumstance. What it requires is that they be treated equally'.
The religious ethos of an organisation can also have a baring on the outcome, as in the case of Flynn -v- Power [1985] IR 648 where an unmarried teacher who was working in a convent school was dismissed after becoming pregnant by her married partner. It was held to be reasonable to dismiss a teacher who was openly having a relationship with a married person in order to prevent the undermining of the religious ethos of the school. It should be noted that the 1998 Employment Equality Act was enacted over 10 years after this case.
Whilst Irish case-law is relatively spares on examples of this type of religious discrimination, in the UK there are far more examples of where this matter has been tested.
In the case of Eweida -v- British Airways plc EAT 0123/08, Mrs. Eweida, a devout practicing Christian, was employed by BA plc as a member of the check in staff. BA's uniform policy prohibited customer-facing members of staff from wearing any visible item of adornment, unless it was worn because of a mandatory religious requirement and could not be concealed under the uniform.
On a number of occasions, Mrs. Eweida visibly wore a silver cross on a chain around her neck. On two occasions she complied with management requests to conceal the necklace. However on one occasion she refused to conceal the necklace and as a result was sent home without pay.
Her claims of religious discrimination were rejected by both the Tribunal and, on appeal, by the EAT. The EAT held that the purpose of indirect discrimination is to counter group disadvantage and that Mrs. Eweida had not shown that the prohibition on the wearing of jewellery had acted as a barrier to anyone other than herself. In effect, Ms. Eweida had not shown that the wearing of the cross was a mandatory requirement of her religion.
In the case of Singh v. Rowntree Mackintosh Ltd. the Employment Appeal Tribunal held that requiring the employee, an orthodox Sikh, to shave off his beard in compliance with hygiene regulations at a food company did not constitute discrimination. The issue was 'whether the company had shown that the rule prohibiting beards at the Edinburgh factory was justifiable irrespective of colour, race, nationality or ethnic or national origins' and the company in fact did so on the grounds of hygiene. Regard was also had to what was objectively equitable and reasonable
In the case of Aishah Azmi -v- Headfield Church of England Junior School [2007] IRLR 484 a British Muslim teacher, Ms Azmi, was suspended after she insisted on wearing her veil whilst teaching. She brought a claim for discrimination based on religious grounds before the Employment Tribunal. The school submitted that both pupils and teachers had raised concerns that they were finding it difficult to understand what she was saying and believed that face-to-face contact was essential to the performance of her role.
Furthermore the school insisted that her suspension had "nothing to do with religion" and that they were simply trying to ensure that the children got the best possible education, the claim for discrimination was overruled, however she was awarded compensation in light of her victimisation claim.
The EAT held that refusing the claimant permission to wear a veil, which she wore for religious reasons, was a proportionate means of achieving a legitimate aim given that:
