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Is an employer liable for discrimination if it asks a Muslim applicant to wear a shorter jilbab? No

A Montessori children’s nursery assessed Ms Begum for the post of a nursery assistant1. Ms Begum wore a jilbab – this is a piece of clothing that covered Ms Begum from her neck to her ankles. Jilbabs come in different lengths, some to below the knee, others to the ankles. The nursery asked Ms Begum if she could wear a shorter jilbab as the nursery viewed the jilbab as a trip hazard for the children and staff. Ms Begum claimed that the nursery had discriminated against her.

The Employment Tribunal found that there had been no discrimination and the Employment Appeal Tribunal agreed. The reasons for this were:

1. There was no evidence of a religious requirement for Ms Begum to wear a floor length jilbab and an ankle length one would have been acceptable;

2. The nursery had a legitimate purpose in having the requirement and even if that requirement did put Muslim women at a disadvantage it was justified in any event.

The case serves a helpful reminder:

– that individuals who are not employees can still make complaints of discrimination;

– that in some sectors, such as health care, there are likely to be requirements in the workplace that may not apply in a different sector. So a trip hazard of clothing is clearly more likely to arise if looking after children or vulnerable adults;

– if an employer does have a rule which may put a particular group at a disadvantage the employer should always ensure that it considers whether the rule can be justified or perhaps modified to lessen the impact (for example, asking the applicant to shorten her jilbab).

Footnote
1. Begum v Pedagogy Auras UK Ltd t/a Barley Lane Montessori Day Nursery.