Can employers ask employees to alter clothing being worn as part of their religious belief?

With Summer comes the usual minefield of what is appropriate office attire. We regularly get inquiries from employers regarding how best to implement a dress code policy and deal with those employees who do not adhere. A recent Employment Appeal Tribunal (EAT) case provides useful guidance for employers particularly where a dress code is related to health and safety.

The recent case of Begum v Pedagogy Auras UK Ltd t/a Barley Lane Montessori Day Nursery in relation to the difficult issue of religious clothing was addressed by the EAT. Ms Begum applied to the Nursery for an apprenticeship. The Nursery provided day care for children from the age of approximately two months. The Claimant was an observant Muslim whose religious belief led her to wear a jilbab and a hijab.

After a half day trial at the Nursery Ms Begum was invited to an interview with the owner of the nursery, Mrs Jalah, where she was offered the “job”. During a discussion regarding Ms Begum needing to wear non slip footwear Mrs Jalah notices that Ms Begum’s jilbab was touching the floor and asked Ms Begum whether she would consider wearing a shorter jilbab to work as she considered the length of the jilbab may pose a tripping hazard. It was even suggested that Ms Begum wear a shorter jilbab to work and change into a longer one before she left, as was apparently the case with other Muslim women working at the nursery. At no point was she told she could not wear a jilbab to work. The EAT found that the nursery was under the impression that Ms Begum left the Nursery with the belief she was happy with the job offer and would revert to them to let them know what she was going to do. Instead she went back to the job agency and said she had been insulted, that the policies were against her morals and beliefs, and she refused to accept the job.  However, she never told the Nursery any of this.   

The EAT was satisfied that the rationale behind Mrs Jalah’s questions were in relation to the Nursery’s Health & Safety responsibility of which they were well aware. Ms Begum asserted that she had been discriminated against because the dress code conflicted with her ethnic/cultural background.

The EAT found that the provision, criterion or practice ('PCP') in relation to jilbab did not put Muslim women at a disadvantage, because an ankle-length jilbab would have been acceptable and they were not presented with any evidence of a religious requirement to wear a floor-length garment. Alternatively, if the PCP did put Muslim women at a disadvantage, they found it was justified in any event.

What does this mean for your business?

If you don’t already have a dress code in place, it is worth implementing one. When doing so, make sure you have a sound justification for any dresscode you wish to impose and consider consulting with your employees over any proposals. The dresscode should be written down, ideally contained in the staff handbook, and clearly communicated to all members of staff so that they understand what is expected of them.

When considering the restrictions you wish to include in your dress code, consider the following: 

• recent case law shows that employees should be entitled to wear items that demonstrate their faith such as an unobtrusive cross symbol (Eweida and Chaplin ECHR (2013))or wearing a skull cap;
• any restrictions on such items should have a genuine business or safety requirement to support it, as this may otherwise amount to unlawful discrimination; and
• it is important that any dress code is non-discriminatory and applies equally to both men and women but you are entitled to impose different requirements, such as requiring men to wear a tie.

For employers who need to monitor clothing in the work place for health and safety reasons,  whilst this case does not give carte blanche to making demands of individuals wearing religious clothing, a considered approach to balancing the needs of the employee and an employer’s Health and Safety responsibilities should avoid any liability for discrimination.

How can you find out more?

If you would like any further information on the issues raised above, please contact Heyma Holmes on 01242 248253 or email heyma.holmes@bpe.co.uk.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.