Dress Requirement did not Indirectly Discrimination against Muslim Women
A requirement that clothing must not present a tripping hazard did not indirectly discriminate against Muslim women.
In Begum v Pedagogy Auras UK Ltd (t/a Barley Lane Montessori Day Nursery), Ms Begum is a Muslim who wears a jilbab, a garment which covers the body from neck to ankle. She applied for a childcare assistant role at a nursery. She attended a trial which was viewed by the nursery manager by webcam. She also attended an interview. She wore a jilbab on both occasions. She was offered the job.
There was then a discussion about the nursery’s uniform policy. Ms Begum was told she needed to wear non-slip footwear. When the manager tried to look at Ms Begum’s shoes she noticed that the jilbab she was wearing that day reached over her shoes and way past her ankles. She asked her if she might wear a shorter jilbab to work as she considered the length of the garment to be a health and safety risk. Although Ms Begum said she would discuss this with her family, she never responded to the manager and she did not start work as expected.
She then brought an employment tribunal claim alleging indirect religious discrimination. She claimed that the manager had told her she could not wear a full length jilbab. This indirectly discriminated against Muslim women and could not be justified. The employer denied this. She had only been told that her clothing must not present a tripping hazard.
The employment tribunal accepted the employer’s version of what had been said and rejected her claim. A requirement that clothing must not present a tripping hazard does not disadvantage Muslim women who wear jilbabs. Muslim women could still wear a full length jilbab provided it did not present a tripping hazard. Other Muslim women in that workplace were able to comply with this requirement. Ms Begum could still have worn a full length jilbab to work, just not one of the length she wore to the interview which presented a tripping hazard.
In any event, even if the requirement did disadvantage Muslim women, it was justified on health and safety grounds. There was a real need to protect the health and safety of staff and children and the requirement that any ankle-length jilbab be of an appropriate length was proportionate.
The Employment Appeal Tribunal upheld the employment tribunal’s decision. It also rejected Ms Begum's argument that the tribunal should have sought expert evidence on the health and safety risks. It had been entitled to rely on the manager's impression of the risk, based on her experience as a nursery manager.
Employers always need to be alert to the potential for dress codes to discriminate against those with particular religious beliefs. They should bear this in mind when drawing up their dress code. In this particular case, the dress code was found not to put Muslim women at a disadvantage because they could still wear a full-length jilbab in accordance with their beliefs.
Even where the requirements of a dress code put people holding certain beliefs at a disadvantage, employers will have a defence to a claim if they can justify the requirement on objective grounds. They should also consider whether there are less discriminatory ways of achieving the same result.
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