Legal update: Religious dress and discrimination in the workplace

Begum v Pedagogy Auras UK Ltd t/a Barley Lane Montessori Day Nursery

This is another case of alleged discrimination around religious dress. It provides a useful indication as to how the Courts will adjudicate these difficult matters should they result in litigation. The case also comes at a precipitous time, given the current debate around the role of religion in society.

The case concerns an observant Muslim woman, the claimant Ms Begum, who wore an ankle length, flowing jilbab for an interview for an apprenticeship position at a Montessori Day Nursery.  She was asked if she would consider wearing a shorter jilbab.  She said she would want to discuss this with her family. The nursery made clear that whatever garment she wore, it could not constitute a tripping hazard to herself or to the pupils at the school.

Even though Ms Begum was offered the apprenticeship for which she had applied (in other words her interview had been successful), she decided not to attend work. Instead she complained to her employment agency, that she had been offended by the nursery's uniform policy, and that she had been asked to wear, effectively, too short a jilbab.

Ms Begum brought a claim for discrimination on grounds of religion or belief. Her claim was rejected by the Employment Tribunal in East London, and she appealed to the EAT.

The EAT made clear the case turned on the facts. The Employment Tribunal had held that the claimant had not actually been told she could not wear a jilbab of the appropriate length. But if she had, the PCP (provision, custom or practice) would be a requirement not to wear an ankle length jilbab.  This was justified in this case, because such a garment could constitute a tripping hazard to staff or to the pupils of the school.  The requirement (if there was one) was not indirectly discriminatory to Muslim women.  The PCP applied equally to all staff, regardless of their religion, and if it did put some women at a particular disadvantage, any indirect discrimination was justified as being a proportionate means of achieving the legitimate aim of protecting the health and safety of the children.

Points of note:-

1. This is but the last of a series of cases on dress. Previous decisions have concerned, for example, Christians wanting to wear a cross to work, in one case, when the employee was working as a nurse, and in another when working on a British airways check in desk.  In nearly all of these cases, the employer has won.
2. The trump card does appear to be health and safety.  Whenever it is raised as a defence, the Employer seems to win out.
3. There was comment in the judgment on the fact that the manager did not actually stipulate that a longer dress was a requirement, but merely raised as a question, whether the claimant might wear a shorter dress. Often such questions are inadvisable at interview stage, and unless well and sensitively handled, best avoided. 
4. A point that seems to have been very much in the nursery's favour, was the fact that 25% of its staff were Muslim, wearing a range of dress. Not only that, Muslim prayer times were accommodated, and time was given for Ramadan. Showing a willingness to be flexible and tolerant, albeit within limits, seems to have commended itself to the Court, and this underlines to employers, the advantages of having as diverse a workforce as possible, and actively seeking to accommodate requirements wherever feasible.