Religious Rights v Clinical Obligations; how to get it right in the dental practice
Dental practices are increasingly sensitive to the religious and cultural backgrounds of their patients, recognising that special arrangements may need to be made in order to accommodate an individual’s needs. However, when it comes to employees or workers at the practice, is it always possible to balance their religious observance against the clinical obligations of the practice? In this dental guidance bulletin we look at the way a dental practice can accommodate a team member’s religious requirements, and when the needs of the Practice can override the needs of the individual.
Religious dress can be a thorny issue for dental practices and must be addressed with the upmost sensitivity. However, practice owners must bear in mind that the employee’s needs must be balanced against the practice’s legal obligations to minimise cross infection to ensure patient safety. Personal Protective Equipment (PPE) is the term used to describe the protective equipment used by the dental team when in the surgery. This will include eye protection, single use gloves, masks and gowns.
Current dental guidance is that uniforms should be short sleeved, and arms should be bare.
So what happens when a PPE restricts or prohibits a staff member from wearing religious clothing?
The employment tribunal in Manchester considered this issue in the case of Khatoon v The Pennine Acute Hospital NHS Trust (2016) Eq Opp Rev 270:29, Manchester ET.
Ms Khatoon, a practising Muslim, had two roles at the Hospital; a medical laboratory assistant and phlebotomist. She had asked to wear her full Muslim dress at work. In relation to her phlebotomist role, the request was refused because the Hospital had a ‘bare below the elbow’ policy to prevent cross contamination; similar to that imposed within dental practices. The Hospital denied the request for Ms Khatoon to wear a niqab in her laboratory role because it felt staff needed to be able to communicate with patients and due to the risk of infection. Ms Khatoon agreed that a niqab would not be appropriate in her patient-facing phlebotomist role.
Ms Khatoon issued a claim for indirect religious discrimination. In order to determine this issue, the tribunal asked itself the following:
1. Was there a provision, criterion or practice (PCP) that the Hospital applied to all staff equally?
Yes. There was a policy that all staff had to bare the below the elbow and a policy that staff could not have their faces covered in certain roles.
2. Did the PCP put Muslim women at a disadvantage compared to non-Muslim women?
Yes, because Muslim women could not wear full Muslim dress.
3. Was Ms Khatoon put at a disadvantage because of the PCP?
Ms Khatoon was put at a disadvantage because she was not allowed to wear full Muslim dress.
4. Could the Hospital show that the PCP was a proportionate means of achieving a legitimate aim?
In relation to the ‘bare below the elbow’ policy, the tribunal found that this policy was in place for health and safety reasons and was therefore a proportionate means of achieving a legitimate aim. It is of note that the Hospital provided disposable sleeves for staff to wear.
The tribunal agreed with the Hospital that it was necessary for staff to be able to communicate with patients and due to the risk of infection. Therefore, the refusal to allow Ms Khatoon to wear the niqab was a proportionate means of achieving a legitimate aim.
Ms Khatoon’s claim therefore failed.
Be sensitive to staff concerns. Consider wherever possible what accommodations can be made; for example, plastic sleeves or surgical hijabs to ensure that modesty requirements are complied with. Do not pass the financial burden of procuring these items to the staff member.
Time off for Religious Holidays and Observance
The Equality Act 2010 does not require an employee to allow staff to take time off for religious observance. Nor does it require a business to change working patterns to allow an employee to pray at certain times during the day.
This issue has been considered on a small number of occasions by the employment tribunal, including in 2011, in the case of Cherfi v G4S Security Services Ltd UKEAT/0379/10/DM.
The claimant, a security guard, was refused permission to leave the premises he was guarding on a Friday to attend prayer. He was offered instead weekend work, or work on Monday to Thursday which he declined.
Mr Cherfi argued that he had been indirectly discriminated against on the grounds of his religion by requiring him to remain at work on Friday lunch times. He claimed that G4S had applied a PCP, placing him at a disadvantage as a practising Muslim. This amounted to discrimination by virtue of reg 3 of the Employment Equality (Religion or Belief) Regulations 2003.
In turn G4S argued that they were contractually obliged to provide security cover during this period, and it was not reasonable to provide cover for the lunch period only.
Again, the tribunal dismissed the claim, finding that the PCP was a proportionate means of achieving a legitimate aim, namely the operational need of the business.
Mr Cherfi appealed, however the Employment Appeal Tribunal found that the Tribunal had properly applied the law. G4S had a substantial contractual obligation with its customer which went well beyond mere earning of profit; indeed, it was reliant upon the contract for the business to survive.
Consider carefully whether it is possible to arrange clinical hours around the staff member’s prayer times. It is unlikely that a tribunal would find cost to the practice only as a proportionate means of achieving a legitimate aim. Practices will need to weigh up their obligations to provide services at particular times, for example as prescribed under the NHS contract, against the staff members religious requirements.
The key to protecting the practice against claims for discrimination is good communication. Practice owners should not be afraid to ask team members what they need, and be sensitive to the individual’s requirements.
If, after considering all options, there are no alternative but to refuse a request, write to your staff member with your response ensuring you explain your rationale behind any decision. If a claim is later issued, this will help you defend it by showing your reasons for refusal.
Please note that the information contained in this article was correct at the time of writing. There may have been updates to the law since the article was written which may affect the information and advice given therein.