Labour & European Law Review Weekly Issue 429 22 July 2015
It is indirect sex discrimination for an employer to apply a provision, criterion or practice (PCP) which puts a person of one religion at a particular disadvantage compared to someone who does not share that religion. In Begum v Pedagogy Auras UK Ltd t/a Barley Lane Montessori Day Nursery, the Employment Appeal Tribunal (EAT) held that it was not discriminatory for an employer to apply a policy limiting the length of someone’s clothing on health and safety grounds.
In October 2011, Ms Begum attended a follow-up interview (after a half-day trial at the nursery) at which she was offered a modern day apprenticeship as a trainee nursery assistant. As an observant Muslim, she wore a full length garment known as a jilbab, but was asked at the interview by the manager if she could wear a slightly shorter version to work as the one she was wearing (which appeared to cover her ankles) might constitute a health and safety risk.
Ms Begum did not agree to the request there and then but said she would have to consult her family. However, rather than telling the nursery what she had decided, she went back to the agency which organised the apprenticeship and informed them that she could not accept the post because the nursery’s policies contravened her morals and beliefs. She then brought a tribunal claim asserting that she had suffered a detriment because of her religious belief.
The tribunal accepted that, as a Muslim, Ms Begum was entitled to protection under the law which extended to her decision to wear a jilbab as an expression of her faith. It also accepted that the nursery had applied a PCP that any garment worn by staff should not present a trip hazard.
As the PCP was applied “across the board” by the nursery to all members of staff, the tribunal found that it did not particularly disadvantage Muslim women and was not discriminatory. A quarter of staff were Muslim women and the tribunal had seen evidence of them wearing long - seemingly ankle length - jilbabs to work. The employer respected their religion, giving time out for daily prayers and time off during Ramadan.
Ms Begum had not been told that she could not wear a jilbab to work, but rather had been asked to wear a shorter version than the one she wore to interview. However, if the PCP did disadvantage Muslim women then it was justified in any event as a proportionate means of achieving a legitimate aim which was to protect the health and safety of staff and children. It was not an isolated PCP - staff also had to keep their nails short, keep their hair tied back and be careful in relation to the jewellery they wore.
Dismissing the appeal, the EAT held that although there was some confusion about the exact length of the garment that Ms Begum had worn to the half-day trial and the interview, it was not the job of the tribunal to determine its precise length. They found that this case turned on its facts, that Ms. Begum had not challenged the view - either at interview or in the proceedings - that the jilbab she wore to interview was over her shoes.
The PCP adopted by the nursery could not be said to be either wrong or unreasonable and the tribunal was entitled to have regard to the evidence of the experienced manager who had deemed Ms Begum’s garment to be a potential health and safety hazard. As the tribunal had found that the PCP was not discriminatory, Ms Begum could not have suffered a detriment or been placed at a disadvantage for the simple reason that there was no discriminatory PCP in place.
It is important to recognise that this case turned on its particular facts. There was no rule in place that Muslim women could not wear jilbabs, indeed they did. The EAT judge observed that this whole case appeared to have been based on a misunderstanding by the claimant and had more conversation taken place it would have been established that the claimant could wear an ankle length jilbab, like the Muslim women who already worked there, just not one that came past her shoes so as to cause a tripping hazard.