Each month, the experts at Wright Hassall answer one of your dilemmas from a legal perspective. Here, employment law solicitor, Emma Wellard, examines the highly fraught topic of religious garments in the workplace.
Q: “An employee of ours refuses to remove a piece of religious headwear as she says it is within her rights to wear it. However, I believe it could be a serious health and safety issue (it could get trapped in machinery, etc.). What do I do?”
A: The Equality Act 2010 (EqA 2010) prohibits indirect discrimination on the grounds of religion or belief (or lack of religion or belief). Indirect discrimination can occur when an employer unilaterally applies a provision, criterion or practice (PCP) to its staff which does or would put a person of a particular religion or belief (or lack thereof) at a particular disadvantage when compared with others who are not of the same religion or belief. Note, however, that it is possible to justify the application of a PCP by showing it to be a proportionate means of achieving a legitimate aim.
It’s usual for any business in which machinery is operated to have a strict dress code so as to minimise the risk of any health and safety issues arising from inappropriate attire and it’s likely that a formal risk assessment will have been carried out before laying down any such code. If, as a matter of policy, employees are not permitted to wear any form of headwear (other than prescribed protective headgear) then it’s likely that this would constitute a discriminatory PCP for the purpose of the discrimination legislation as it would, in effect, cause a detriment to certain individuals sharing the protected characteristic of religion or belief.
However, in such circumstances, it may be a justifiable PCP on the grounds of health and safety.
In the recent case of ‘Begum vs Pedagogy Auras UK Ltd (t/a Barley Lane Montessori Day Nursery)’, the Employment Appeals Tribunal (EAT) addressed a similar issue. In the specific circumstances of this case, the nursery was not held to have applied a discriminatory PCP to a Muslim job applicant wearing a jilbab as it did not oppose the wearing of a jilbab per se (indeed it had other employees who wore jilbabs) – it merely required that its length did not present a tripping hazard. The EAT agreed with the tribunal; if there had been a discriminatory PCP in place, it would have been justified on the grounds that the nursery manager was in an appropriate position to determine what would constitute a risk to health and safety in that particular environment. The approach taken by both the first tier tribunal and the EAT in terms of what might present a health and safety risk and the assessment of that is considered to be somewhat broad and so, where the operation of machinery is involved, it may be prudent to undertake a formal health and safety risk assessment on the issue, to ensure that you can adequately justify your position.