Wearing Religious Dress at Work: A recent decision of the US Supreme Court has found that Abercrombie & Fitch had discriminated against a job applicant by refusing to hire her on the basis that her head scarf or “hijab” clashed with its “classic East Coast collegiate style” dress code. This high profile case has led to a number of questions from Irish based employers on the issue of employees wearing religious dress at work.

Wearing Religious Dress at Work

The Abercrombie issue arose after a job applicant wore her hijab to an interview which the interviewer assumed the applicant wore for religious reasons. Staff members in that company were advised not to ask applicants about their religion. The US Equal Employment Opportunity Commission (EEOC) claimed that in not asking, the company had violated equality guidelines and essentially created a loophole allowing for religious discrimination. In an 8-1 vote, The Supreme Court ruled that Abercrombie should have asked the applicant or at least told her of the ban so she had an opportunity to volunteer the information at which point the company and the applicant could have discussed how the headscarf might be accommodated in the workplace.

Religious dress at work: What’s the position in Ireland?

Cases of discrimination or unfair dismissal on the grounds of the wearing religious clothing are quite rare in Ireland and as such there is no precedent or case law to highlight what way the Irish courts or tribunals view this matter. The Employment Equality Acts do specifically state that discrimination on the grounds of religion is prohibited and one can safely assert that the wearing of religious garments or jewellery would come under this definition. Therefore, if an employer were to forbid the wearing of religious garments then the employer would be required to objectively justify the reasons behind that rule.

The UK perspective

Given the lack of Irish cases in this area, it is quite useful to look at how the matter has been addressed in the UK. In the case of Azmi -v- Kirklees Metropolitan Borough Council [2007] IRLR 434, the UK EAT considered the fairness of a dismissal of British Muslim teacher won the basis she refused to remove her religious veil (or ‘niqab’) in the presence of male colleagues. The school argued that the veil meant that children could not respond effectively to her teaching. The UK EAT found that she had not been discriminated against on the religious ground on the basis that removing the veil was necessary for her to perform her teaching job effectively and also the EAT were satisfied that a non-Muslim person would have been similarly instructed to remove a veil from their face had they worn one also.

Learning points

It is difficult to determine with any great certainty what an Irish tribunal would determine if faced with a similar scenario. In the US, Abercrombie were deemed to have discriminated against a job applicant on the basis that the company had a positive duty under US law to reasonably accommodate religious practices. In the UK, however, it was found that the school had not discriminated against an employee for demanding she remove her veil as the school would have applied this policy rigidly to every job applicant and employee, irrespective of religion.

However, these two cases do provide some useful guidance for employers in Ireland if considering a ban on certain garments. If an employer was to impose a dress code, they would have to justify the reason for doing so and make sure that they are not indirectly discriminating against an employee. The following reasons might be able to justify such a policy:

• The impact such garments have on an employee’s ability to perform their work duties.
• Any health and safety risk associated with such garments.
• Any industry rules in terms of protective equipment.

For example, in the UK Azmi case, the decision to dismiss was justified as it was concluded that the face-veil was obstructing the employee’s ability to communicate effectively with students and therefore inhibited her abilities to perform her duties appropriately. However, in the Abercrombie case in the US, there was no indication that the wearing of the headscarf would inhibit job performance as a sales assistant. Therefore, an employer will need a justifiable reason connected to a real business need, a genuine role requirement, or a health and safety requirement.

If you have any questions on this article then please do not hesitate to contact our 24 Hour Advice Service on 01 855 50 50.

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After over 20 years as a litigation lawyer I trained as a mediator in 2008 and have seen at first hand the benefits and cost-savings of mediation, particularly for SME’s who can ill afford to spend hard-earned profits on costly litigation.

Having seen those benefits for organisations at all levels I launched a new service in June 2015 called ‘The Better Way’
– www.thebetterwayto.com – a unique service aimed at preventing, diagnosing and resolving disputes through education, facilitation and mediation. The name was obvious – it is the better way – and I’ve seen it from all angles.

Resolving Business Disputes: A no-brainer for businesses

Consider this recent report in the media – a ‘spike’ in commercial litigation in the UK, thought to be due to the fact that a surge in litigation emerging from recession claims began 5 – 6 years ago, but only now coming to court.

In the same week another report said that private sector firms in Northern Ireland reported a marked acceleration in the rate of growth in both business activity and new orders in April. Indeed, April’s figures represented the fastest rate of expansion in both business activity and new orders since the survey began nearly 13 years ago.

How much of this reported growth in income for SME’s in NI will end up being allocated to the type of commercial litigation in the first report? How many of them will have to devote valuable resources including people, time, money, to dealing with that litigation?

There are no clear statistics on this, but what we do know is that another recent report – the sixth mediation audit undertaken by the Centre for Effective Dispute Resolution (CEDR) – estimated that mediation saves businesses around £2.4bn a year in wasted management time, damaged relationships, lost productivity and legal fees.

Even better, 85% of cases taken to mediation are successfully resolved.

It’s not hard to see how these figures are calculated since cases can take 5-6 years to reach court, but it’s not just the time; as the CEDR audit highlighted, it’s the collateral damage that drains businesses at a time when recovery is vital. Traditionally the winner in any litigation gets their costs paid, but even in this scenario it only means the legal costs; it does not reimburse the business for the hours of work spent by personnel preparing witness statements, bundles of documents, meetings with lawyers, copies of correspondence …..the list goes on.

Cheaper, faster and more flexible solutions

The reality is, crucially for businesses, that mediation is significantly cheaper than traditional court action. A commercial case listed for two days in the High Court could easily be expected to cost £50,000- £100,000, whereas mediating the same case will cost in the region of £5,000.

In a recent commercial mediation I conducted, the parties estimated the total costs in running the case, including a ten day high court trial, to be around £2.5m whilst the maximum value of the claim was £1.5m. Unsurprisingly, a day’s mediation and several follow-up meetings resolved the case for a small fraction of that cost.

There’s more than just a financial advantage; in court, solutions can be quite binary. There is an opportunity in mediation to preserve business relationships and come up with creative options that the courts cannot propose because of their limited remit.

It’s faster, cheaper and preserves business relationships – a ‘no brainer’ for businesses.

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Social media and how it relates to the workplace is one of those areas that every employer is unsure of. This is because social media is a relatively new phenomenon and uncertainty can arise where an employee engages in questionable social media behaviour which the employer believes renders them unsuitable for their job. As such, employers should always keep abreast of employment tribunal cases on this area and today we look at the recent case of Brown -v- Mountview/Blakestown/Hartstown/Huntstown Community Drugs Team Limited T/A Adapt (UD1447/2014).

Employee Dismissed over Facebook Photo

The employee in question worked for an organization who provided services and rehabilitation to persons experiencing drug and/or alcohol problems. The organization also provided services to persons who were the victims of gun crime and indeed persons who perpetrated a gun crime. As a part of his role as a project worker, the employee provided one to one counseling and support to services users.

Facebook Photo

The employer became aware that the employee “had posted a photograph on his Facebook page. The photograph depicted the claimant holding a gun to a ‘victim’s’ head in what appears to be rough surroundings… It was accepted that the photograph was a staged photograph taken while the claimant was on holidays in Thailand in 2008.” importantly, the employee’s Facebook profile was not private, meaning that any Facebook user, including any person who used the employer’s support services, would be able to see the photo if so desired.

As an observation, clearly this photo is at odds with the company’s services and the employee’s own role. It is not beyond the realms of possibly that the employee would be supporting a victim of gun crime in circumstances where that victim views the Facebook photo in question.

Disciplinary Process

From the EAT’s decision it seems as though the employer carried out a very sound disciplinary process and, indeed, the EAT did not identify any concerns with how the matter was conducted. An investigation hearing was conducted, with the employee offered the right to representation, at which point the employee acknowledged that he had posted the photo but that he had viewed it as being a joke. The investigating officer felt that the employee had not shown sound professional judgement and was concerned that the employee had viewed this as a jokey matter. As a result, the matter was forwarded to a full disciplinary hearing.

The EAT decision details that the employer decided to dismiss the employee because “the combined effect of the [employee] posing for, staging and publishing the photograph and then considering it as a joke destroyed her confidence in him. She believed that if the photograph had been viewed by service users or their families it would have damaged the reputation of their service… displaying the photograph in the public domain of Facebook with the claimant in a violent and threatening pose, undermines the professional integrity of the [company], is unacceptable, and cannot be tolerated in any circumstances.”

EAT Decision

Ultimately the EAT found the dismissal unfair but explicitly noted that the employer had “acted in good faith and with the best of motives, in dealing with this matter.” In reaching this decision, the EAT stated that the finding of dismissal was disproportionate when one factored in the following additional elements:

• The employer became aware of the photo in February 2014, at a time when the employee was sick, but did not deal with the matter until April 2014, namely when the employee returned to work. Notwithstanding the fact that the employee was out on sick leave, the EAT felt that if the photo was so potentially damaging to the company then surely they would have taken steps in February to have it removed.
• The employer never received any complaint from service users or otherwise about the photo.
• There was no evidence that any service users had been adversely affected by the photo in terms of their treatment progression.
• The employee had a very good disciplinary record with 11 years’ service.
• Indeed, the employee was a dedicated worker who regularly gave up his personal time to help services users.

As such, the EAT felt that the employee should have received a lesser sanction and therefore found that he had been unfairly dismissed. However, the EAT also found that the employee was “reckless and careless as to the possible dangers of Facebook” and that he had “exposed the [company], its servants or agents, patients, victims, support services in general, to a serious danger and risk of which he was aware or ought to have been aware.” As such, whilst he was unfairly dismissed, the EAT found that the employee’s own actions contributed substantially to the dismissal. In addition, the EAT noted that the employee was not in a position to work anyway as he was claiming disability benefit (and therefore had suffered no real financial loss as a result of the dismissal). Therefore awarded just 4 weeks’ pay, or €3,230.

Learning Points

There are some key learning points that we can take away from this case:

• Always consider an employee’s length of service and disciplinary record in any disciplinary process. This won’t normally of itself render a dismissal unfair but it is one issue that tribunals will take into account.
• Act quickly. In this case the failure to ask for the photo to be taken down when it came to the company’s attention was viewed negatively by the EAT, notwithstanding the fact that the employee was out on sick leave.
• Probably the most important learning point is that if an employee has committed an act that you think might constitute gross misconduct then try and identify if the company has suffered any actual detriment as a result. If not, then it is very unlikely that you will be able to justify dismissing the employee.

If you have any questions on this article then please do not hesitate to contact our 24 Hour Advice Service on 01 855 50 50.

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