Ban on full-length muslim jilbab was not discriminatory

In Begum v Pedagogy Auras UK Ltd (t/a Barley Lane Montessori Day Nursery) UKEAT/0309/13 the EAT agreed with the earlier Tribunal’s Judgment that an employer did not discriminate against an applicant when it made it clear that any garment worn should not present a tripping hazard. 

Ms Begum was an observant Muslim who wore a full-length jilbab. She applied for a job at a nursery, participated in a half-day trial and was then invited to interview. At the interview she was offered the job but informed that a full-length jilbab would represent a tripping hazard. The nursery suggested that they asked Ms Begum whether she would be happy to wear a shorter jilbab and Ms Begum said she would discuss it with her family.  

The nursery was expecting Ms Begum to start working at the nursery and was surprised when she failed to show on her first day. Ms Begum had not intimated that she was offended by the discussion at her interview and had not communicated to the nursery that she did not intend to accept the offer of employment. Instead, she issued a claim to the Tribunal. 

Ms Begum argued that the nursery required her not to wear an ankle-length jilbab, and that this was indirectly discriminatory treatment against Muslims and which could not be justified. The nursery refuted her version of events maintaining that they had no issue with ankle-length garments (indeed the nursery employed at least one other Muslim who wore an ankle-length jilbab), but that any full length garment posed a potential tripping hazard. The Tribunal preferred the evidence of the nursery staff, accepted that ankle-length jilbabs were permitted at the nursery and ruled that simply asking Ms Begum whether she would be prepared to wear a jilbab that did not present a tripping hazard, did not constitute a detriment.  

Ms Begum appealed to the EAT who upheld the decision of the original Tribunal. Both Tribunals agreed that the requirement to wear a garment which did not present a tripping hazard, did not amount to indirect discrimination, and both agreed that had they reached a different conclusion, such a requirement would have been capable of justification.