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Nursery assistants over-long jilbab presented a tripping hazard | 2015-09-15

In a recent case, Begum v Pedagogy Auras, the Employment Appeal Tribunal had to decide whether requiring a Muslim woman to wear a shorter jilbab was indirectly discriminatory.

Indirect discrimination occurs where:

  • a ‘provision, criterion or practice’ (PCP) is applied equally across a workforce
  • the PCP puts those with a ‘protected characteristic’ under the Equality Act 2010 at a particular disadvantage
  • someone in the workforce suffers that disadvantage
  • the employer cannot show the PCP to be a proportionate means of achieving a legitimate aim.

This case concerned a devout Muslim who wore a jilbab (full-length outer garment) in observance of her religious belief. Jilbabs come in many designs and sizes, but the kind of jilbab worn by Begum was a flowing garment that could reach at least to her ankles. Some Muslim women wear a shorter jilbab. Begum applied for a nursery assistant apprenticeship. The nursery had 16 members of staff, including four Muslim women who wore hijabs, one of whom also wore an ankle-length jilbab. The nursery accommodated Muslim staff by facilitating prayer times and time off during Ramadan.

During a half-day trial, Begum wore an ankle-length jilbab. She was invited to an interview at which she was offered the job and the importance of wearing non-slip footwear was emphasised. The interviewers noticed her shoes were covered by her jilbab, and she was asked if she could wear a shorter jilbab to work as over-length garments could constitute a tripping hazard for children and staff. Begum felt she had been insulted and that the policies were against her morals and beliefs. She brought a tribunal claim, arguing that she had been discriminated against on grounds of religion or belief because of the dress code.

Tribunal

Begum alleged that the manager conducting her job interview had asked if she would wear a knee-length jilbab and was told she could not work at the nursery if she were dressed as she was at the interview. The tribunal preferred the manager’s evidence that this was not the case. The manager said that 25 per cent of the nursery’s workforce were Muslim women who were allowed to wear garments in observance of their religious beliefs. Begum was never told that she could not wear a full-length jilbab to work. The only requirement was not to wear clothing which represented a trip hazard. That criterion was not detrimental to Muslim women or Begum as an individual but, if that was not the case, then the requirement was a proportionate means of achieving a legitimate aim. Begum appealed.

EAT

The Employment Appeal Tribunal agreed with the tribunal. At no point had Begum been told that she could not wear a jilbab. Asking her if she would be prepared to wear a jilbab that did not present a tripping hazard did not place her at a disadvantage. And even if it did put some Muslim women at a disadvantage, any indirect discrimination was justified as being a proportionate means of achieving the legitimate aim of protecting the health and safety of staff and children.

Comment

This case highlights three issues for employers:

  • Legal advice should be taken in formulating dress standards policies, including following Acas’ guidance on religion or belief in the workplace and, in particular, accommodating religious observance whenever possible.
    • Here the nursery was sensitive to the religious needs of its employees and this was partly the reason for the tribunal preferring the employer’s evidence.
  • Fully documenting discussions which take place in interviews provides objective evidence as to what was actually said if there is a dispute. Having two interviewers wherever possible, as in this case, also adds to the likelihood that the employer’s evidence will be preferred.
  • If a PCP does create a disadvantage, employers must be ready to show they have a legitimate business aim which the PCP achieves, there is no less discriminatory way of achieving the aim, and the benefits to the business outweigh the discriminatory effect.

CIPD

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