Dress Codes, Jilbabs and Indirect Religious Discrimination
Religion is one of the nine ‘protected characteristics’ covered by the Equality Act 2010, which implements the Equal Treatment Framework Directive 2000/78/EC. This prohibits harassment and direct/indirect discrimination in respect of religion or belief of both job applicants and those in employment.
Religious discrimination can also involve infringement of the Human Rights Act 1998 and the European Convention of Human Rights. A successful claim on the basis of discrimination will generally result in the award of compensation. It is therefore important that the boundaries of what constitutes discrimination are as clear as possible to avoid potential employment tribunal claims.
The case of Begum v Pedagogy Auras UK LTD t/a Barley Lane Montessori Day Nursery answered a controversial question regarding whether or not limiting the length of a garment that a Muslim assistant could wear to work was in fact discriminatory. The employment tribunal held that this was not the case. Ms Begum, an observant Muslim, whose religious belief required her to wear a garment reaching from her neck to her ankles (a jilbab), attended an interview and was asked to wear a shorter jilbab due to concerns over a potential trip-hazard.
This led to a complaint of discrimination, however the employment tribunal found that the provision did not put Muslim women at a disadvantage, because an ankle-length jilbab would have been accepted. The requirement of staff wearing clothing that does not pose a hazard was standard for all employees, regardless of religion or belief. There was no supporting evidence in favour of Ms Begum that it was a religious requirement to wear a floor-length jilbab. It was also noted that the employer was ready to hire Ms Begum and the discussion regarding the jilbab took place while discussing employee clothing.
The EAT declined to interfere, holding there was no error in law and accepted the tribunal’s findings. It is clear from previous cases that employers can more easily justify encouraging a particular dress code if based on health and safety concerns and discrimination is more likely to be found if it is based on ‘image’ grounds only.
The case of Chaplin v NHS supports this finding, where restricting dangling jewellery on health and safety grounds was accepted. However, the case of Nadia Eweida v BA demonstrates that discrimination can be found where there was a restriction on a lady wearing a visible cross at work.