Blog - 09/06/2015
Discrimination and the Length of the Law
The recent judgment in Begum v Pedagogy Auras UK Ltd (T/A Barley Lane Montessori Day Nursery) held that the requirement for an employee to wear a shorter jilbab, such as not to present a tripping hazard, did not constitute discrimination.
Following a half-day trial at the Respondent’s nursery, the Claimant was offered an apprenticeship. In discussing the policies and procedures, including uniform, the Claimant was told that she needed to wear non-slip footwear. The Claimant was an observant Muslim whose religious belief required her, amongst other things, to wear a jilbab to cover her body. In looking at the Claimant’s feet in order to advise her as to her footwear, the Nursery Manager, Mrs Jalah, noticed that the Claimant’s jilbab was covering her shoes and touching the floor. Mrs Jalah felt this to be a health and safety hazard for the Claimant, her colleagues and the children, and she asked the Claimant whether she might consider wearing a shorter jilbab to work. The Claimant agreed that she would discuss this with her family.
The meeting ended well from the Respondent’s perspective, and they intended for the Claimant to revert to them to let them know what she had decided to do. However, the Claimant did not contact the Respondent again and went back to the agency to say that she had been insulted, that the policies were against her morals and beliefs and that she refused to accept the job. The Claimant then commenced proceedings for indirect discrimination on the grounds of her religious beliefs. The Claimant claimed that she had suffered a detriment by reason of the manifestation of her religious belief because she had been told that she would not be permitted to wear a jilbab of the appropriate length, and therefore was unable to accept employment with the Respondent.
The Employment Tribunal, in dismissing the Claimant’s claim, held that the Claimant had not been instructed that she could not wear a jilbab of the appropriate length. It was noted that 25% of the Respondent’s workforce were Muslim women who were entitled to wear a jilbab if they so wished, so long as it did not represent a tripping hazard. As to what represented such a hazard, Mrs Jalah was allowed to rely on her experience as nursery manager. Further, it was held that the provision, custom or practice was not indirectly discriminatory to Muslim women; it applied equally to all staff, who were required to dress in ways that did not endanger their health and safety or that of their colleagues or the children in their care, whether actually or potentially. Alternatively, even if this did put some women at a particular disadvantage, it was held that any indirect discrimination was justified as being a proportionate means of achieving a legitimate aim; namely to protect the health and safety of staff and children.
The Employment Appeal Tribunal agreed and the appeal was dismissed.
Although this case appears to demonstrate that asking a question about religious attire during an interview may be permissible, particularly where there are legitimate concerns about the health and safety risks posed, this was a case that turned on its facts. Employers should always tread carefully when pursuing a line of enquiry at interview in relation to manifestations of religious beliefs, and should strictly avoid imposing any provision, custom or practice that would put a particular group at a disadvantage.
If you require further information, please contact Linky Trott or any member of the Edwin Coe Employment Team.
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