Disability discrimination: Knowledge of decision maker
In this case, the EAT considered whether the dismissal of an employee could be direct discrimination when the decision maker was not aware that the employee was disabled.
Published 29 April 2016
Requirement for Muslim jilbab not to present a tripping hazard was not discriminatory.
The Claimant is an observant Muslim wore a jilbab, a full length garment work by some Muslim women that covers the body from neck to ankles. She applied for a modern apprenticeship as a nursery assistant at a nursery. She wore the jilbab to a half day trial and to the interview that followed. Other Muslim women working at the nursery wore hijabs and at least one of them wore an ankle-length jilbab.
The Claimant alleged that she had suffered a detriment by reason of the manifestation of her religious belief because she had been told that she would not be permitted to wear a jilbab of the appropriate length, so she was unable to accept the post. The employment tribunal dismissed the claim on the facts. It held that the Claimant had not been instructed that she could not wear a jilbab, but had only been asked if she would consider wearing a shorter jilbab, and whatever garment she wore it could not constitute a tripping hazard.
The employment tribunal went on to hold that if they were wrong about the facts, a provision, criterion or practice 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 alleged indirect discrimination was justified as being a proportionate means of achieving a legitimate aim, because there was a real need to protect the health and safety of staff and children. The EAT upheld the tribunal's decision.
It is easy to see why, on the facts of this case, asking whether a shorter, ankle-length jilbab might be worn did not give rise to a detriment. The broader point, that the requirement to wear a garment which does not present a tripping hazard was not indirectly discriminatory against Muslim women as women wearing ankle-length jilbabs could comply, seems right. Employers need to have carefully analysed and recorded what is and is not appropriate and ensure they do not make any assumptions when deciding on uniform policies.