Hello again, we hope you enjoyed the bank holiday despite the gloomy weather. This week’s case is about religious discrimination and is one of the most straightforward cases we’ve covered, however, there are still lessons to be learned for employers.
The question this week is:
Can a health and safety policy be indirectly discriminatory?
Ms Begum, the Claimant, was offered a job as a trainee nursery assistant at Barley Lane Nursery, the Respondent. The Claimant was a devout Muslim who wore a full Jilbab, a garment that covered her from head to ankle, as part of her beliefs.
The Respondent told the Claimant that she would be unable to wear the Jilbab at work as it was a tripping hazard and could put herself or children at risk. The Claimant felt she was unable to accept the Respondent’s offer if she was unable to wear the Jilbab and bought a religious discrimination claim against the Respondent.
The Employment Tribunal dismissed the claim. The Tribunal held that the clothing policy preventing the Claimant from wearing the Jilbab, was a reasonable Provision, Criterion or Practice (PCP) as long garments would be a tripping hazard to both staff and children.
Furthermore the PCP applied equally to all staff who wished to wear inappropriate clothes so there was no direct discrimination to Muslim women. Any indirect discrimination was a justified means of protecting the health of children in the Respondent’s care.
The Claimant appealed the Tribunal’s decision on the grounds that the decision it reached was perverse. The EAT dismissed the appeal citing that the Tribunal had reached a just decision and that any indirect discrimination caused by the PCP was justified to preserve the health and safety of all children and staff the Respondent had a duty of care for.
To answer today’s question, no, a health and safety policy or PCP cannot constitute as indirect discrimination providing the reasoning behind the PCP is justifies any discrimination that may occur from it. In this instance Health and Safety prevailed and would therefore be reasonable to assume that the health and safety of staff takes supersedes any indirect discrimination that might arise.