The Employment Appeals Tribunal has recently considered a job applicant’s complaint of discrimination which centred around a requirement to only wear garments which do not present a tripping hazard.
In this case, a job applicant attended an interview for the position of a nursery assistant. The prospective employee was a Muslim who wore a jilbab – a full length garment covering the body from neck to ankles.
At the time the employee attended for interview, a quarter of the staff already employed at the nursery were Muslim. Some religious headwear was allowed and there were adjustments made to allow employees time off to pray.
Having been offered the role, the employer noticed that the employee’s shoes were covered by her religious clothing. She was asked to wear a shorter jilbab to work as it constituted a tripping hazard.
The applicant never returned to work following this discussion and brought a claim in the Employment Tribunal for discrimination on the grounds of religion or belief.
She alleged, amongst other things, that the uniform policy discriminated against her as a Muslim as the requirement not to wear such an item of clothing placed her at a disadvantage as a Muslim and could not be justified.
The Employment Tribunal ruled that there was no provision, criterion or practice which put the applicant at a disadvantage because of her religion. There was no outright ban on wearing a jilbab, it was simply the case that she was not permitted to wear one which was so long.
Even if there was a provision, criterion or practice which was potentially discriminatory, it was held that the decision to prevent the applicant from wearing such a garment was justified on health and safety grounds.
There was a need to protect the heath and safety of staff and children and this was a proportionate way of achieving this aim.
The Employment Appeals Tribunal agreed with the findings of the Tribunal and noted that other staff at the nursery wore jilbab’s regularly. It also considered that the discussion which was held regarding the garment focused on the length of the jilbab rather than an outright ban, so it was not the case that the ban focused on the garment itself which may potentially have been discriminatory.
The case nevertheless highlights the need for employers to consider the practical implications of religious dress.
An outright ban on particular types of clothing may offend certain religions and may be indirectly discriminatory.
There needs to be reasonable justification for refusing such clothing which, in this case, focused on genuine health and safety concerns.
