Begum v Pedagogy Auras UK Ltd (t/a Barley Lane Montessori Day Nursery) (Religion or Belief Discrimination)

A provision, criterion or practice which prevents a worker from wearing religious dress compliant with her beliefs may engage indirect-discrimination protection under section 19 of the Equality Act 2010. A workplace rule requiring all staff to avoid clothing that creates a tripping hazard may nevertheless be non-discriminatory where it permits religious dress of an appropriate length and applies to all staff.

A PCP need not be formal, detailed or exhaustively particularised. On appeal, factual findings concerning the content and effect of a PCP will not be disturbed unless the high threshold for perversity is met.

The Claimant, an observant Sunni Muslim, was offered an apprenticeship as a trainee nursery assistant. She wore a flowing jilbab and alleged that the Respondent’s managers told her that she could not wear a full-length jilbab at work. She did not take up the post and brought a claim of indirect religion-or-belief discrimination.

The Employment Tribunal dismissed the claim. It found that the Respondent had not prohibited an ankle-length jilbab. Its practice required all staff to avoid garments that could create a tripping hazard for staff or children. Alternatively, it found that any resulting indirect discrimination was justified by health and safety.

The Claimant appealed on grounds including perversity, inadequate reasons, identification of the PCP, disadvantage and justification.

1. Appeal dismissed. The Employment Tribunal was entitled on the evidence to find that the Claimant was not told that she could not wear a jilbab, including a full-length jilbab, but was asked to avoid clothing that might create a tripping hazard. The disputed meaning and apparent length of an “ankle-length” flowing garment were factual matters for the Tribunal.

2. The appeal was in substance an impermissible attempt to reargue factual findings. The Tribunal had heard the evidence, resolved inconsistencies and given adequate reasons. The Claimant had not met the high threshold for establishing perversity: [2002] IRLR 634 CA.

3. A PCP capable of preventing a person from wearing a jilbab compliant with her religious belief can engage section 19 of the Equality Act 2010. However, the factual finding was that the Respondent’s PCP was a general health-and-safety requirement that staff should not wear garments creating a tripping hazard. It allowed Muslim women to wear jilbabs, provided they did not create that hazard.

4. A PCP need not be carefully defined, detailed or formal. The Tribunal was entitled to formulate the PCP as the requirement that staff avoid clothing creating a tripping hazard and to rely on the experienced nursery manager’s assessment of workplace safety.

5. Since the Tribunal was entitled to find that the PCP was not discriminatory, the Claimant could not establish disadvantage or detriment arising from a discriminatory PCP. The Tribunal’s reasons, read with its response under the Burns-Barke procedure, were sufficient. The alternative conclusion that the safety requirement was proportionate was therefore not material to the outcome.

• Employment Appeal Tribunal: dismissed the Claimant’s appeal: [2015] UKEAT 0309_13_2205.
• Employment Tribunal, East London: on 2 April 2013 dismissed the Claimant’s indirect religion-or-belief discrimination complaint.