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Religious clothing, health & safety and indirect discrimination…
09 June 2015

Was it discriminatory for a potential employer to request that an applicant wore a shorter Muslim garment of clothing to work? 

It was decided not by both the Employment Tribunal and on appeal in Begum v Pedagogy Auras UK Ltd (t/a Barley Lane Montessori Day Nursery).

The case

An applicant for an apprenticeship role in a nursery landed the job. She did not however turn up to her first day of work and instead lodged a claim in the employment tribunal, why? The nursery requested that the successful applicant wore a shorter jilbab (long and loose coat worn by some Muslim women that reaches from the neck to the ankles) than the one she wore to the interview. This was on the grounds that the jilbab being worn represented a tripping hazard as it hung beyond her ankles.

The applicant made a claim that this was indirectly discriminatory against Muslim women who wear a jilbab.

The employment tribunal did not uphold her claim. First; the health and safety requirement not to wear any clothing which could potentially be a tripping hazard applied equally to staff of all religions and genders. Secondly; if this did in some way put Muslim women who wear a jilbab at a particular disadvantage this indirect discrimination would be justified as being proportionate in achieving the legitimate aim of protecting the health and safety of the children. The employment tribunal also took into consideration that no evidence was presented to them that showed that Muslim women were required to wear a jilbab of such a long length.

It can be understood from this decision that if an employer has a clear and legitimate aim in implementing a policy that could adversely affect a specific group of employees, the reasons for introducing that policy should be documented. It should also ensure that this is done in a measured way that also considers other options designed to provide the same result but in a way that disadvantages people or groups less.

In other news… Government considering Tribunal Fees review

Mr Shailesh Vara MP has said in parliament that the government is currently exploring the options for a review of employment tribunal fees. This is clearly in its infancy however, we will be watching this space with interest as any changes in tribunal fees could have a dramatic impact on the employment law landscape. 

For more information about the issues in this article or to find out more about how the Employment team can help you please contact the team on 0118 952 7284 or email [email protected].

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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