The EAT has held that a nursery manager’s discussion with a Muslim job applicant, who wore a jilbab, regarding a uniform policy which required employees not to wear clothing that presented a health and safety risk did not amount to indirect discrimination.
Uniform policies can give rise to indirect discrimination claims. This case is a reminder that where a uniform policy comes into conflict with an employee’s religious beliefs this does not automatically mean this will be unlawful discrimination. In essence in this case, the EAT held that there would be no conflict if a small adjustment was made to the length of the jilbab. They also stated that any discrimination would, in any event, be justified on grounds of health and safety due to the potential trip hazard in this case. Employers need to be live to such issues and consider adjustments that could be made to balance the needs of a uniform policy with an employee’s religious beliefs.
In Begum v Pedagogy Auras UK Ltd (t/a Barley Lane Montessori Day Nursery) Ms Begum attended an interview to which she wore a full length jilbab. During the interview the nursery manager was discussing the uniform policy, in particular, the need to wear non slip footwear. During this discussion the manager noticed that she could not see Ms Begum’s footwear as her jilbab covered her shoes. She asked whether Ms Begum could wear a shorter jilbab at work as she thought there may be a risk of a trip hazard with the garment she was wearing on that day. Ms Begum subsequently refused to accept the job offer and claimed indirect religious discrimination.
Indirect discrimination occurs where a provision, criterion or practice (“PCP”) is applied to all, but puts a group with a protected characteristic (in this case on the basis of religion) at a particular disadvantage, and the PCP cannot be justified as a proportionate means of achieving a legitimate aim. In this case the EAT held that a requirement for employees to wear clothing which did not present a health and safety risk was not a PCP which particularly disadvantaged Muslim women who wore jilbabs. The policy did not prevent jilbabs being worn only that they should not present a health and safety risk.
No evidence was presented to the tribunal that there was any religious requirement for a floor length garment to be worn and it was clear that the policy did not create any restriction on wearing an ankle length jilbab, as another employee at the nursery did so. The nursery was not imposing a policy that jilbabs could not be worn only that any garment should not present a trip hazard.
Therefore there was not a PCP applied which disadvantaged Muslim women as they could comply with the requirement for clothing not to present a trip hazard. The tribunal went on to confirm that if they were wrong about this and there was a PCP this could be justified as a proportionate means of achieving a legitimate aim, namely, protecting the health and safety of employees and the children in their care.
The EAT agreed with the tribunals findings and accepted in this case it was appropriate for the tribunal to accept the nursery manager’s view of the jilbab worn by Ms Begum to her interview as being a trip hazard.
Nick Benton comments: "While this case does confirm that certain restrictions on clothing will not be a PCP the tribunal did take into account that this particular employer did not prevent employees from wearing jilbabs altogether. There were a number of employees who wore religious dress without it presenting any health and safety issue. Employers will therefore still need to be mindful of the impact of any policies they put in place to ensure they do not fall foul of discrimination legislation."