How do you report a case that was settled out of court? Maria Strauss, an Associate at Farrer & Co, has kindly provided the following guest post on an interesting case that didn’t quite come to court…

Background

Religious discrimination featured in the press last week when it was reported in the Telegraph that Mr Amrik Bilkhu, a Sikh criminal defence solicitor, had secured compensation against the Ministry of Justice. The reports on the dispute summarise the facts as follows. Mr Bilkhu attended at HMP Belmarsh in October 2013 to visit a client and was reportedly refused entry on the grounds that his turban was held together by four pins. Mr Bilkhu issued proceedings in the County Court for religious discrimination and the claim was settled with an undisclosed payment of compensation and legal costs. There is no reported judgment on the case because it was settled before the final hearing that had been listed to be heard in May 2014.

Comment

I was reminded of the long-established law relating to Sikhs and the specific exemption in place under section 11 Employment Act 1989, under which Sikh men working on a construction site are exempt from the requirement to wear safety helmets while on site. In addition, they must not be disadvantaged by any provision, criterion or practice relating to the wearing of a safety helmet as this will be indirect discrimination. Mann Singh v France [2008] ECHR 1523 and Shingara Mann Singh v France [2013] UN Human Rights Committee CCPR/C/108/D/1928/2010, which we noted here, also relate to the wearing a turban and religious discrimination.

The arguments being run in this most recent case are not known; but likely Mr Amrik Bilkhu brought his case under the Equality Act 2010 which covers discrimination in employment, provision of goods, services and facilities. Usually those cases focus on indirect discrimination and mainly sections 10 and 19 of the Equality Act 2010. Public bodies are also subject to the Human Rights Act 1998 and so Article 9 arguments (freedom of religion) may have been relevant. The County Court is the usual first instance forum for such cases unless the discrimination is in the course of employment. In addition, public authorities such as the Ministry of Justice are subject to the Public Sector Equality Duty under s 149 of the Equality Act, under which they must have “due regard” to “advance” equality of opportunity and eliminate discrimination.

The issue of religious dress is one that features regularly in the Courts and in the press: see for example the dispute about veiling of a defendant in Blackfriars Crown Court. The most recent leading case is Eweida and Ors v United Kingdom [2013] ECHR 37, on which Frank commented here.

However there are other interesting cases, including:

• Dhinsa v Serco & Anor [2011] ET/13150002/09 in which the employment tribunal held that a ban on prison officers carrying knives did not amount to indirect race or religious discrimination. The case was brought by a Sikh prison officer concerning the right to wear a kirpan (a ceremonial dagger) for religious reasons.

• Azmi v Kirkless Metropolitan Borough Council [2007] UKEAT/0009/07 (a pre – Equality Act case), where the Employment Appeal Tribunal upheld a Tribunal ruling that an instruction to remove the veil was not indirectly discriminatory when carrying out duties as a bilingual support work.

• R (Watkins-Singh) v Aberdare Girl’s High School & Anor [2008] EWHC 1865 in which the High Court found indirect religious and racial discrimination against a School for the failure to grant the pupil an exemption from the uniform policy following her assertion of her right to wear a bangle which was of great religious significance to her.

When considering the issue of dress codes and personal appearance of staff or visitors, organisations should check their dress code policies, apply them consistently and ensure that they do not discriminate unless there is some valid justification for doing so – which will generally be strong health and safety or security reasons. ACAS and the Equality and Human Rights Commission publish helpful material; and legal advice should be taken in every case.

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Cite this article as: Maria Strauss: “Religious discrimination and the Ministry of Justice: a quick look at religious dress and discrimination” Law & Religion UK, 21 January 2015, https://www.lawandreligionuk.com/2015/01/21/religious-discrimination-and-the-ministry-of-justice-a-quick-look-at-religious-dress-and-discrimination/