SUMMARY: In Begum v Pedagogy Auras UK Ltd, it was held that a nursery had not discriminated against a Muslim woman who wanted to wear a jilbab to work, when it required staff not to wear garments that might constitute a tripping hazard to themselves or the children in their care.
Background to case
A trainee nursery assistant (Ms B) was an observant Muslim whose religious belief required her to wear a garment that reached from her neck to her ankles (a jilbab). After a half-day trial, Ms B was invited to interview. She wore a jilbab on both the trial day and the interview day. At the time of the interview, the nursery asked her whether she might wear a shorter jilbab to work. The nursery indicated to Ms B that whatever garment she wore, it could not constitute a tripping hazard for children or staff.
Ms B subsequently refused to take the job and reported that she had been insulted by the nursery’s approach to uniform, which went against her religious beliefs.
Ms B brought a claim in the employment tribunal for discrimination on grounds of religion or belief.
The Employment Appeal Tribunal upheld the decision of the employment tribunal which was that Ms B’s discrimination claim was unsuccessful.
It was noted that there was another member of staff at the nursery who wore a jilbab and 25% of the workforce were Muslim women. It was clear that this was a workplace in which jilbabs were permitted, so long as they did not constitute a tripping hazard. The Employment Tribunal had found that at no point was Ms B told she could not wear a jilbab while working at the nursery.
The nursery demonstrated a tolerance towards employees’ religious beliefs, but had to balance a potential employee’s right to manifest their religious belief with its health and safety obligations and did so successfully in this case; it was found that it had not discriminated against Ms B. However, in other instances, the enforcement of a dress code can prove more problematic for employers given the protection that employees have under the Equality Act 2010.
The Equality Act 2010 essentially gives employees the right not to be directly or indirectly discriminated against on grounds of a protected characteristic. Protected characteristics include age, sex, race, religion or belief, sexual orientation, gender reassignment, marriage or civil partnership, pregnancy or maternity, race and disability.
Ms B alleged that she had been indirectly discriminated against on grounds of the protected characteristic of religion or belief.
Indirect discrimination on grounds of religion or belief occurs where:
- An employer applies to an employee a provision, criterion or practice (PCP).
- The employee has a particular religion or belief.
- The employer applies (or would apply) that PCP to persons not of the same religion or belief as the employee.
- The PCP puts or would put persons of the employee’s religion or belief at a particular disadvantage when compared to other persons.
- The PCP puts or would put the employee at that disadvantage.
- The employer cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.
Although in this case, it was held that there was no discriminatory PCP (i.e. no indirect discrimination), if there had been a discriminatory PCP, the employer may well have been able to justify the discrimination by showing that that:
- it had a legitimate aim (for example, compliance with health and safety obligations); and
- the means chosen (the requirement to wear a garment which did not present a tripping hazard) for achieving that objective were proportionate.
What can employers require in terms of dress code?
The requirements an employer is permitted to include in its dress code are likely to depend on the nature of an employer’s business, the extent to which there are health and safety hazards in its work, the level of employees’ contact with customers and any requirement to wear a uniform.
An employer should keep potential issues of discrimination in mind when formulating a dress code. Regard should be had to possible religious sensitivities, and also to the principle that, while an employer may have different rules for men and women, the rules should not be more stringent for one group than another.
In this case, it was found that the employer did not ban ankle-length jilbabs but that Ms B had worn a flowing garment. The employer’s concern was that this could constitute a tripping hazard and was acutely aware of its health and safety obligations. If the employer had banned jilbabs completely, this is likely to have been indirectly discriminatory; the employer would then need to justify the indirect discrimination and such a ban may not have been a proportionate means of achieving a legitimate aim (see above in relation to “law” for justifying discrimination).
An employer may well succeed in justifying such indirect discrimination on the grounds of health and safety where an employee will, for example, be working with children. However, there may be some work environments where there are no health and safety considerations which could justify such a ban.
It is likely to be more difficult for an employer to be able to justify not permitting an employee to wear a head scarf (hijab) than a full length garment (jilbab). Although not UK law, Abercrombie & Fitch discovered this to its detriment when there was a recent American Supreme Court decision against it following its refusal to hire a Muslim woman because she wore a head scarf. Abercrombie and Fitch said that the scarf clashed with its dress code, which called for a “classic East Coast collegiate style”. We consider this argument would be unlikely to justify discrimination if it occurred in the UK.
We advise that all employers consider whether to have a written dress code policy. The policy could, for example, include a provision that employees may wear appropriate religious and cultural dress unless it creates a health and safety risk to the employee or any other person.
Begum v Pedagogy Auras UK Ltd (t/a Barley Lane Montessori Day Nursery) UKEAT/0309/13
For more details about dress code and if you would like us to draft a policy for your business, please contact:
+44 (0) 1604 871143
This update is for general guidance only and does not constitute definitive advice.