Mrs Azmi, a Muslim teacher, worked as part of a teaching team. She asked if she could wear the veil when she was teaching with male teachers, or whether the school in which she worked could make arrangements so that she would not have to work with any male teachers. The school monitored Mrs Azmi’s classes and concluded, along with the Local Education Department of Kirklees Borough Council (which controlled the school), that teachers or support workers wearing a veil in the workplace prevented effective communication with the children. The school also concluded that it was not possible to isolate Mrs Azmi from all male staff. The school therefore instructed Mrs Azmi to be unveiled when teaching. When she refused, the school suspended her.

Mrs Azmi brought claims of discrimination on the grounds of her religion and belief, under the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660). She claimed direct discrimination, indirect discrimination, harassment and victimisation.

The employment tribunal dismissed all of Mrs Azmi’s claims except for her claim of victimisation, which was successful to the extent it related to the school’s handling of a grievance raised by Mrs Azmi. She was awarded £1,000 in damages for injury to feelings. This award was uplifted by 10% because of the school’s failure to comply with the statutory grievance procedure (for background, see News brief “Statutory dispute resolution: the new procedures”, www.practicallaw.com/8-102-9824).

Employers should take the following steps if they have concerns about what an employee is wearing to work in connection with their religion or beliefs:

Consider ability to perform role. The Azmi decision is not a licence for employers to prohibit Muslim women from wearing the veil at work. What does come across clearly from the case is that the rights of employees to manifest their religion at work are limited and are subject to their ability to perform the role they are employed to carry out. This means that if the dress code that employees wish to adopt on religious grounds hinders them from effectively carrying out their duties, employers are within their rights to require the employees not to wear the relevant item of dress.

Conversely, if employees can carry out their duties properly while wearing the relevant form of religious dress, it will not be possible for an employer to refuse to allow them to wear it without being at risk of a successful religious discrimination claim. In Mrs Azmi’s case, the school’s instruction to remove the veil when teaching was found to be a proportionate measure because, among other things, the school allowed Mrs Azmi to wear the veil at all times in school when she was not teaching.

Most forms of religious observance will be capable of accommodation in the workplace. Therefore Azmi may have limited application due to the specific type of communication that Mrs Azmi’s role required.

Be proactive. It is important for employers to address legitimate concerns they have about an employee’s dress, or indeed other aspects of an employee’s behaviour, proactively at the earliest opportunity with the relevant employee. If employers delay, the prospects of them later being able to argue successfully that their concerns are non-discriminatory will be significantly reduced.

Obtain evidence. If employers are going to assert that an employee’s ability to perform is impeded by a particular form of religious dress, they will need to provide some evidence of this. Mere assertions will not be enough. In Mrs Azmi’s case, the tribunal took into account the fact that the school had monitored Mrs Azmi’s teaching in situations both where she wore the veil and where she did not, before concluding that she should be unveiled when teaching.

Beware of victimisation claims. The case also serves as a reminder of the dangers of victimisation claims. Even where employees bring wholly unfounded allegations of direct and/or indirect discrimination, if they can show that, after making the allegations, they were treated less favourably than other people, they can still bring a successful claim of victimisation.

In a nutshell, employers should not ignore tricky issues in the sensitive area of dress codes, but aim to resolve potential issues fairly as soon as they appear. Mrs Azmi plans to appeal against the employment tribunal’s decision and if she does so, the Employment Appeal Tribunal will hopefully provide further guidance on this issue.

Deepa Nathan is a senior associate in the employment department at Allen & Overy LLP.