The Employment Appeal Tribunal has recently been asked to decide whether a nursery school’s requirement that a Muslim lady not wear a full-length jilbab – because this would present a tripping hazard – was unlawful discrimination.
In this case, Ms Begum, the claimant, wished to wear a full-length version of the jilbab, which covers the body from the neck to the ankles. Jilbabs come in different lengths, however; some to below the knee, and others to the ankle, others to below the knee.
At her interview, the nursery’s managers noticed that Ms Begum was wearing a full-length jilbab, and asked her whether she could wear a shorter jilbab to work for health and safety reasons, as other employees did, because the full length version was a trip hazard. She replied that she would need to discuss the issue with her family.
Ms Begum was offered the job, but did not turn up for work. Instead she claimed that she had been insulted/directly discriminated against because of the questioning about her jilbab, and indirectly discriminated against on the basis of her religious belief because she was requested to wear an ankle length jilbab.
The nursery took the position that there was no indirect discrimination because Muslim women could wear various lengths of jilbab. The Tribunal and Appeal Tribunal agreed. The provision was not indirectly discriminatory, and, even if it was, it would be justified on grounds of health and safety.
Interestingly in this case, the Appeal Tribunal did not require any expert evidence on the health and safety point – they were happy to take the nursery’s word for this.
They also held that raising the issue of the length of the jilbab during the interview “cannot and did not” amount to a discriminatory detriment. These cases should always be taken on their own facts, however, and particular lines of questioning during interviews can, and do, give rise to detriment claims under discrimination law.