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Requirement for jilbab not to present a tripping hazard was not discriminatory

In Begum v Pedagogy Auras UK Ltd (t/a Barley Lane Montessori Day Nursery), Ms Begum (B) is a devout Muslim who, in observance of her religious belief, wears a jilbab.

In Begum v Pedagogy Auras UK Ltd (t/a Barley Lane Montessori Day Nursery), Ms Begum (B) is a devout Muslim who, in observance of her religious belief, wears a jilbab. Jilbabs come in many designs and sizes, but the kind of jilbab worn by B is a flowing full-length garment that can reach at least to her ankles when standing; some Muslim women wear a somewhat shorter jilbab. B applied for a nursery assistant apprenticeship. The nursery had 16 members of staff, including four Muslim women who wore hijabs, one of which wore an ankle-length jilbab. The nursery accommodated Muslim staff by facilitating prayer times and time off during Ramadan.

During a successful half-day trial, B wore an ankle-length jilbab. Ms Begum performed well on the trial day and was invited to an interview. At the interview B was offered the job. Part of the ensuing discussion centered on the importance of wearing non-slip footwear and the interviewers noticed that on this occasion B's shoes were covered by her jilbab. B was asked if she could wear a shorter jilbab to work. Whatever garment she wore, it could not constitute a tripping hazard for children and staff. B felt she had been insulted and that the policies were against her morals and beliefs. She refused to accept the job, but did not inform the nursery. B presented a tribunal claim, asserting that she had been discriminated on grounds of religion or belief because of the dress code.

The EAT agreed with the tribunal’s reasoning in rejecting B’s claim. B had not been told that she could not wear a jilbab at all. It had been made clear that women were allowed to wear jilbabs in the nusery, as long as they did not constitute a tripping hazard. Simply asking B if she would be prepared to wear a jilbab that did not present a tripping hazard did not place her at a disadvantage. If that was wrong, then the provision, custom or practice (PCP) that staff should not wear any garments that might constitute a tripping hazard to themselves or the children in their care, was not indirectly discriminatory to Muslim women.  It applied equally to staff of all religions and if it did put some Muslim women at a particular disadvantage, any indirect discrimination was justified as being a proportionate means of achieving a legitimate aim: i.e. protecting the health and safety of staff and children.

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The aim is to provide summary information and comment on the subject areas covered. In particular, where employment tribunal and appellate court cases are reported, the information does not set out full details of all the facts, the legal arguments presented by the parties and the judgments made in every aspect of the case. Click on the links provided to access full details. If no link is provided contact us for further information. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

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