The right to wear religious dress and health and safety requirements
The Employment Appeal Tribunal has recently looked again at the balance between accommodating an employee’s choice to wear religious dress and the employer’s uniform and health and safety requirements.
In the case, the claimant, Ms Begum, claimed that she had been discriminated against for wearing a full-length jilbab when applying for a role as a nursery assistant. She was offered the job, but during the interview she was asked whether she could ensure that her jilbab was slightly shorter so it didn’t cover her shoes and create a tripping hazard for her or the children.
Ms Begum showed no concern over the conversation at the time. To the nursery’s surprise; however, she informed the recruitment agency that she had been insulted by the conversation and then brought a claim for religious discrimination.
The case highlights the risk for employers of claims from job applicants based on seemingly reasonable questions asked at interview to establish how health and safety requirements can be met. Fortunately, on the facts the Employment Appeal Tribunal agreed that there had been no discrimination; however, it took the employer several years, and a trip to the Employment Appeal Tribunal to establish this.
The legal requirements
It’s unlawful for employers to treat employees and job applicants less favourably on the grounds of their religion or belief. Indirect discrimination occurs where an employer applies a requirement or practice on employees that is ostensibly neutral but which has the effect of placing employees of a certain religion or belief at a particular disadvantage. For example, imposing a blanket ban on the wearing of jewellery may place at a disadvantage employees whose religion requires a specific item of jewellery to be worn.
In order to succeed in an indirect discrimination claim an employee must show that they are individually placed at a disadvantage by the requirement and that others of the same religion or belief would also be put at that disadvantage. Even if this is established, indirect discrimination can be justified if the employer can show that the requirement or practice is a proportionate means of achieving a legitimate aim, for example the requirement relating to jewellery may be justified for employees working with dangerous machinery if this was for health and safety reasons. When this test is met, the practice or requirement is said to be objectively justified.
Ms Begum was an observant Muslim. As part of her beliefs she wore a full-length jilbab. The particular jilbab worn by Ms Begum covered her body from neck to ankles. She applied for a job as a nursery assistant and attended a half-day trial, and subsequently an interview at the nursery, at which she was offered the job.
Ms Begum wore a jilbab at both her half day trial and her interview. There was therefore no suggestion that Ms Begum had been directly discriminated against on the grounds of her religious belief or her choice to wear a jilbab. At the time approximately 25% of the staff employed at the nursery were Muslim, one of whom wore a full-length jilbab, and others of whom chose to wear head coverings. Prayer times and time off for Ramadan were also accommodated.
The issue arose at the end of the interview during a discussion about uniform. When discussing the importance of wearing non-slip footwear, the interviewer noticed that Ms Begum’s shoes were covered by her jilbab and was concerned. The interviewer asked whether she could wear a slightly shorter jilbab to work. Ms Begum said that she would have to discuss this with her family, to which the interview explained whatever she wore, it couldn’t constitute a tripping hazard for her or the children. They also discussed Ms Begum wearing the nursery’s t-shirt over her jilbab, which she was happy to do. Although there was no indication that Ms Begum was concerned about the conversation at the time, she subsequently didn’t accept the job and never contacted them again. It later transpired that she told the recruitment agency that she’d been insulted by the approach the nursery had taken to uniform.
Ms Begum brought an Employment Tribunal claim. She claimed she’d been subjected to a detriment on the grounds of her religion by being asked about the length of her jilbab. She claimed that the nursery had said she could not wear an ankle-length jilbab and this requirement was indirectly discriminatory against Muslims and could not be justified.
The nursery argued that the interviewer had never said that Ms Begum couldn’t wear a full length jilbab, just that her jilbab could not represent a tripping hazard. In any event, they argued that the requirement that her jilbab didn’t represent a tripping hazard was justified for health and safety reasons.
The Employment Tribunal preferred the evidence given by the nursery and found that Ms Begum had never actually been told that she couldn’t wear a full-length jilbab. The nursery asking her if she would be prepared to wear a jilbab that didn’t present a tripping hazard wasn’t a detriment in this case. On that basis, the Employment Tribunal decided that the nursery had not applied a policy which put Ms Begum at a detriment or indirectly discriminated against Muslim women. It pointed out that other Muslim women at the nursery had been able to comply with the requirement, and Ms Begum herself had worn a jilbab at her trial day without this being a problem. The discussion had focused on the length of her particular jilbab, not jilbabs in general.
It went on to find that, even if it was wrong about that, asking Ms Begum to wear a jilbab that wasn’t a tripping hazard was justified on health and safety grounds. It was related to a need to protect the health and safety of the children and staff at the nursery and was proportionate.
The Employment Appeal Tribunal agreed with the Employment Tribunal’s decision.
What are the implications for employers?
The decision reached in this case seems right. It is reasonable to impose uniform restrictions for health and safety reasons, provided they are proportionate. Employers can discuss uniform policies and ask questions about religious dress at interview if there are concerns about compliance.
However, although the nursery here successfully defended a claim, the decision was made on the specific facts. The nursery had given evidence of their high focus on health and safety requirements and consistent practice with uniform. It’s likely that the Employment Tribunal was also influenced by the employer’s overall good practice in accommodating religious requirements. There is therefore still a risk of similar arguments being raised in other cases.
To minimise the risk of claims employers should:
- Review uniform policies: Ensure that there are genuine health and safety or other reasons for uniform requirements, and they are not just based on general assumptions. Where uniform requirements would prevent certain religious dress being worn consider whether a blanket ban is the only option or whether there are any alternatives.
- Review interview practice: Ensure managers conduct discussions regarding religious dress and uniform requirements sensitively at interview. If there is a concern, discuss alternatives and ask the applicant if they have any suggestions. Encourage managers not to make any final decisions at interview, and to seek guidance on whether their health and safety concerns can be justified before communicating the decision to the employee
- Review equal opportunities policies: Remember that job applicants are protected from discrimination. Ensure that your equal opportunities policy deals with job applicants and your recruitment process is not indirectly discriminatory.