The conflict between religious attire and employers’ dress codes has proved a fertile area of case law and the Courts are frequently asked to consider whether a ban or restriction on an item of religious dress is discriminatory.

In the recent case of Begum v Pedagogy Auras UK Ltd t/a Barley Lane Montessori Day Nursery, the EAT considered whether the request by a nursery school that Ms Begum wear a shorter garment than the long jilbab she wore for her interview was discriminatory.

To recap briefly on the relevant law, indirect discrimination arises where an employer applies a “provision, criterion or practice” (“PCP”) and that places the complainant with a ‘particular protected characteristic’ at a disadvantage. A defence to an indirect discrimination claim applies where the PCP in question is a “proportionate means of achieving a legitimate aim”.

For religious reasons, Ms Begum wore a full-length jilbab, a garment that typically covers the neck to the ankles (but may be worn to varying lengths). Having been offered the position of Nursery Assistant, she was subsequently asked if she would consider wearing a shorter jilbab. Her argument was that the nursery operated a policy against ankle-length jilbabs and this PCP was indirectly discriminatory against Muslim women.

The nursery denied asking Ms Begum not to wear a jilbab – indeed it had another employee who wore a jilbab - but it did admit asking her to wear a jilbab of an appropriate length on the basis that the clothes worn by any member of staff should not present a tripping hazard.

The nursery’s case was that the PCP of prohibiting garments that might constitute a tripping hazard applied to all staff and, as such, it did not place Muslim women at a particular disadvantage. Furthermore, even if it did place Muslim women at a disadvantage, the PCP could be justified as a proportionate means of achieving a legitimate aim.

The Tribunal dismissed Ms Begum’s claims and found that at no point had she been told she could not wear a jilbab. The only requirement was that garments were not a tripping hazard and the Tribunal found this requirement was not a PCP that indirectly discriminated against Muslim women (and even if it was, it was justified on the grounds of health and safety).

Ms Begum appealed to the EAT on the grounds the decision was perverse. In rejecting her appeal, the EAT found the Tribunal was entitled to reach the conclusions it reached and there was nothing perverse about its decision.