The recent and well reported case of Begum v Pedagogy Auras UK Ltd (t/a Barley Lane Montessori Day Nursery) has again cast a spotlight on the issue of dress in the workplace, and the issues that employers should consider when drafting and implementing dress codes.

In the above case, Ms Begum was offered an apprenticeship at the Respondent’s nursery. She was an observant Muslim whose religious belief required her to wear a jilbab (the garment worn by the Claimant was full length and flowing). At interview, the Claimant and nursery manager discussed the policies and procedures of the Respondent, including uniform. The manager informed the Claimant that she needed to wear non-slip footwear, and noticed that the Claimant’s jilbab was covering her shoes and touching the floor. She then asked the Claimant if she might wear a shorter jilbab to work. The Claimant brought proceedings alleging that she had been discriminated against because of the Respondent’s dress code.

The Tribunal was satisfied that the nursery manager was concerned that the length of the Claimant’s jilbab could represent a health and safety risk at the nursery, as it was a possible trip hazard for staff and children. The Tribunal found that the Respondent’s practice was that all members of staff were required to dress in ways that did not endanger their health and safety or that of their colleagues or children in their care, whether actually or potentially. The Employment Tribunal was also satisfied that those concerns were applied across the board and did not particularly disadvantage Muslim women who wanted to wear a full-length jilbab – Muslim women who wanted to wear a full-length jilbab “could do so as long as it was not likely to cause a trip hazard”. Furthermore, had the requirement to wear a garment which did not present a tripping hazard been discriminatory, it would have been justified on health and safety grounds. The Employment Appeal Tribunal upheld this decision.

Whilst the above case is potentially helpful to employers, there are of course cases which have been decided in favour of employees, including the case of Eweida and others v United Kingdom (2013). In that case the European Court of Human Rights upheld the claim of Ms. Eweida, a Christian employee of British Airways, that the UK had failed to protect her right to manifest her religious belief, when her indirect religious discrimination claim (against British Airways for its refusal to allow her to wear a cross) failed.
These cases demonstrate the importance of any dress code being clear as to its purpose, and justifiable. Although an employer must not discriminate against its staff members on the grounds of religion or belief, the right of staff members to manifest their religion or belief at work is subject to their ability to perform the role they are employed to carry out. Conversely, if employees can carry out their duties while wearing the relevant form of religious dress, employers who refuse to allow them to wear it will put themselves at risk of successful discrimination claims.

In practical terms, policies implemented on the grounds of health and safety concerns and for reasons that relate to an employer’s ethos may well be justifiable, so long as they are designed to achieve a legitimate business aim, there is no less discriminatory way of achieving that aim and the benefits to the business outweigh any discriminatory effects. If an employer is concerned that an existing or proposed policy is overly restrictive or potentially discriminatory, legal advice should be taken (ACAS and the Equality and Human Rights Commission have also issued guidance which may be helpful).

Posted on 19/06/2015 in Legal Updates

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