The Employment Appeal Tribunal (EAT) has decided that a nursery did not discriminate against a Muslim woman when it asked her to wear a shorter jilbab to work due to health and safety concerns.
Ms Begum, an observant Muslim, applied to be trainee nursery assistant at the Respondent’s nursery. At her interview Ms Begum wore a flowing floor length jilbab. The Respondent offered Ms Begun the role, but asked that she wear a shorter jilbab at work, as the Respondent believed that the jilbab Ms Begun was wearing was a trip-hazard at the nursery and therefore would present a health and safety risk for her, her colleagues and the young children with whom she would be working.
Ms Begum did not give any indication in the interview that she was offended by the Respondent’s request, but later informed her recruitment agency that she was and would be not be accepting the role. She then brought an Employment Tribunal Claim against the Respondent for indirect religious discrimination.
Ms Begun claimed that she had been told by the Respondent that she could not work at the nursery if she was dressed as she was in the interview and said that this instruction constituted discrimination on the grounds of religion and belief. She asserted that the Respondent’s requirement amounted to a PCP (Provision, Custom or Practice) which put her ethnic/cultural background at a disadvantage and could not be objectively justified.
The Employment Tribunal dismissed the claim on the facts. It preferred the Respondent’s evidence in relation to what was actually said in the interview, which was that the Claimant was told that staff should not wear any garments that might constitute a trip-hazard to themselves or the children in their care, not that she could not wear a jilbab of the appropriate length.
It was held that the PCP in this context was “that no a garment worn by a member of staff should present a trip-hazard to users, workers or the worker herself” and that it applied equally to staff of all religions.
The Tribunal went on to determine that if this PCP had put Muslim women at a particular disadvantage, any indirect discrimination was justified as being a proportionate means of achieving a legitimate aim, as the PCP was in place to protect the health and safety of staff and children. The EAT agreed with the conclusions of the Employment Tribunal.
It was particularly helpful to the nursery’s case that 25% of its existing workforce were Muslim women, one of whom wore an ankle length jilbab. This showed that the nursery did not have a problem with jilbabs in principle, only those that represented a trip-hazard.
The way in which the nursery approached the issue was subtly but importantly different from how Ms Begum described it, showing how easy it is to fall the wrong side of the line. The case provides useful guidance on the justification of potentially discriminatory dress codes. Where a uniform requirement imposed by an employer is, or could be, indirectly discriminatory, if there is a genuine health and safety reason for enforcing it, then this is likely to trump the discrimination and justify the requirement.
Begum v Pedagogy Auras UK Ltd (t/a Barley Lane Montessori Day Nursery)