In Begum v Pedagogy Auras UK Ltd (t/a Barley Lane Montessori Day Nursery) UKEAT/0309/13, the EAT had to decide whether a nursery had discriminated against a female Muslim job applicant who wore a jilbab, when it made clear during an interview that its uniform policy meant that any clothes worn at work should not present a tripping hazard.
Ms Begum was a Muslim who wore a jilbab, a full-length coat or dress that covers the body from neck to ankles. She applied (through an employment agency) for a modern apprenticeship as a nursery assistant at a Montessori day nursery. Jilbabs come in different lengths, some to below the knee, others to the ankle. The particular jilbab worn by Ms Begum was a full-length one, which reached at least to her ankles when she was standing.
At the time when Ms Begum applied for a job, 25% of the staff employed at the nursery were Muslim; at least four women wore hijabs (head-coverings) and one of these wore a full-length jilbab. It was apparent that this was a workplace that embraced diversity, in which for example Muslims were accommodated at prayer times and time off was given for Ramadan.
Ms Begum attended a half-day trial at the nursery, which was observed by the manager of the nursery. At the time of the trial Ms Begum was wearing a jilbab that came to her ankles. She performed well on the trial day and was then invited for an interview. Ms Begum again wore a jilbab and was interviewed by the manager of the nursery. She was offered a job at the interview and the issue of uniform was then discussed.
The nursery manager started to talk about the importance of wearing non-slip shoes and noticed that Ms Begum's shoes were covered by her jilbab. At this point, Ms Begum was asked if she might wear a shorter jilbab to work, to which Ms Begum replied that she would have to discuss the issue with her family. The manager indicated that clothes worn by staff could not constitute a tripping hazard for children and staff. Rightly or wrongly, the manager had formed the view that the garment being worn by Ms Begum at her interview did constitute such a hazard due to it possibly restricting Ms Begum's movements. There was no indication that Ms Begum might have been offended by the discussion and no conclusion was reached on the matter. Ms Begum agreed that she would be happy to wear a nursery T-shirt over her jilbab.
The nursery expected Ms Begum to start work at the nursery but she never contacted them again. Instead, she reported to the employment agency that she had been insulted by the nursery's approach to uniform, which went against her religious beliefs. On that basis, she refused to take the job. According to Ms Begum's version of events, the manager had asked if she would wear a knee-length jilbab. She also claimed that she had been told she would not be permitted to wear an ankle-length jilbab. Ms Begum brought a claim in the employment tribunal for discrimination on grounds of religion or belief.
Employment tribunal decision
Ms Begum claimed that she had been subjected to a detriment on grounds of religion or belief by being asked the question about the length of her jilbab and that the uniform policy discriminated against her. She alleged that there was a requirement not to wear an ankle-length jilbab and that this was a provision, criterion or practice (PCP) that was indirectly discriminatory against Muslims and which could not be justified.
The nursery denied the allegations and stated that Ms Begum's version of events was untrue. The manager maintained that she had only ever indicated that clothes could not present a tripping accident and that she had never said that wearing a full-length jilbab was forbidden.
The employment tribunal preferred the manager’s evidence over Ms Begums's, finding that at no point was Ms Begum told that she could not wear a jilbab while working at the nursery. A discussion had taken place with no conclusions reached. However, it was made clear that this was a workplace in which women were allowed to wear jilbabs so long as they did not represent a tripping hazard. Simply asking Ms Begum whether she would be prepared to wear a jilbab that did not present a tripping hazard did not constitute a detriment.
The tribunal found that no PCP had been applied to Ms Begum that indirectly discriminated against Muslim women. If it was wrong about that and a discriminatory PCP had been applied, namely the requirement not to wear a garment that presented a tripping hazard, it was justified on health and safety grounds. There was a real need to protect the health and safety of staff and children and the requirement for any jilbab to be of appropriate length was proportionate. Commenting on the discussion that took place about uniform policy at interview, the tribunal noted that "merely raising an enquiry cannot and did not put the claimant under a detriment". Ms Begum appealed to the EAT.
Ms Begum argued that the decision of the employment tribunal had been perverse and that its reasons had been inadequate but the EAT upheld the decision of the employment tribunal. The tribunal had been entitled to reach the conclusions it had done on the evidence, there had been nothing perverse about its decision and it had given adequate reasons.
The basis of the employment tribunal's decision was that there was no discriminatory PCP in place. It did not accept, on the evidence, that the nursery had imposed a requirement that no jilbabs could be worn. Rather, there was a requirement that any garment worn should not present a tripping hazard. This of itself did not indirectly discriminate against Muslim women; the tribunal pointed out that all other Muslim women in that workplace could comply with the requirement that clothing should not present a tripping hazard. When reaching its conclusion on this point, the tribunal had been entitled to have regard to the following factors:
- Ms Begum had worn a jilbab at the trial day and at interview without this being a problem;
- The discussion that had taken place focussed on the length of her particular jilbab, not jilbabs in general; and
- One other member of staff wore a jilbab.
In the EAT's view, there had been no error in the tribunal's formulation of the PCP. Neither had there been a need for it to make precise findings about the actual length of the jilbab worn by Ms Begum at interview in order to reach its conclusions. Since the tribunal had found that there was no discriminatory PCP in place, detriment was not an issue that the EAT had to determine.
The EAT implicitly approved of the tribunal's approach to the question of whether, if there had been a discriminatory PCP, it would have been justified. It endorsed the tribunal's approach to risk assessment, namely that it was legitimate to have regard to the manager’s impression from her experience as a manager rather than requiring precise, expert evidence on the point.
The conclusion reached in this case seems right, that the requirement to wear a garment that did not present a tripping hazard was not indirectly discriminatory against Muslim women, as women wearing ankle-length jilbabs could comply. In addition, the fact that this was a tolerant workplace, where other Muslim women wore hijabs and at least one of them wore an ankle-length jilbab, may have informed the tribunal's overall approach. However, the tribunal and EAT seemed prepared to adopt a rather broad-brush approach to the theoretical question of justification, deferring to the nursery manager's impression as to the particular length of Ms Begum's jilbab while seated and also her perception of risk. The nursery manager gave evidence that she considered the risk to stem from Ms Begum's possible restriction of movement within the lengthy jilbab, yet a bystander might assume the risk to have flowed from others tripping over the garment. Assumptions ought not to be made about why something may or may not present a health and safety risk. A broad-brush approach might have been sufficient in the circumstances of this case but it will not be in most cases.
In addition, the tribunal's comment that merely raising a matter in discussion in interview "cannot and did not" put the claimant under a detriment is, in our view, a misleading and sweeping statement. The EAT did not comment on it, pointing out that it had no need to determine issues about detriment since no discriminatory PCP was made out. It is easy to see why, on the facts of this case, asking whether a shorter, ankle-length jilbab might be worn did not give rise to a detriment. However, employers should bear in mind that pursuing a particular line of enquiry at an interview may, and often does, give rise to detriment claims under discrimination law, particularly where the discussion in question relates to expressing a particular religious or other belief at work.