Background

Ms Begum was offered an apprenticeship as trainee nursery assistant at the Barley Lane Montessori Day Nursery. An observant Muslim, she believed that her religion required her to wear a jilbab; and on being told that the nursery would not allow her to wear a jilbab at work of what she regarded as the appropriate length – described in the judgment as “a flowing full-length garment that can reach at least to her ankles when standing” [5] – she decided that she was unable to accept the apprenticeship.

Before an Employment Tribunal she had claimed that she had suffered a detriment in relation to the manifestation of her religious belief; but the Tribunal had dismissed her claim. It held that, on the facts, Ms Begum had not been instructed that she could not wear a jilbab of the appropriate length; but it also held that even if that had not been the case, the requirement that staff should not wear any garment that might constitute a trip hazard to themselves or to the children in their care was not in any event indirectly discriminatory against Muslim women. The rule applied equally to staff of all religions; and if it did put some Muslim women at a particular disadvantage, any indirect discrimination was justified as being a proportionate means of achieving the legitimate aim of protecting the health and safety of staff and children. She appealed.

The appeal

In Begum v Pedagogy Auras UK Ltd (t/a Barley Lane Montessori Day Nursery) (Religion or Belief Discrimination) [2015] UKEAT 0309 13 2205 the Employment Appeal Tribunal held that the Employment Tribunal had reached conclusions that it had been entitled to reach on the facts as found; nor had it misdirected itself in law.

Central to the decision was the Provision, Custom or Practice (PCP) of refusing to allow staff to wear full-length dresses at work, whether the PCP applied equally to persons not of the same religion or belief as Ms Begum, whether it put Muslim staff at a particular disadvantage and whether the PCP was a proportionate means of achieving a legitimate aim. The Employment Tribunal noted that the PCP submitted by Ms Begum was the refusal by the nursery to allow staff to wear full-length clothing in the form of a jilbab [18].

Ms Begum said that the PCP was applied to her at her interview on 27 October 2011, when she was advised that she could not wear her jilbab because it was too long, and again on 28 October when the nursery again refused to allow her to wear a jilbab at work. Ms Begum claimed the protection of the Equalities and Human Rights Commission’s Equality Act 2010 Statutory Code of Practice for employers. It was agreed between the parties that Ms Begum wore the jilbab as part of her adherence to a religion: she maintained that the fact that she was not allowed to wear a full-length jilbab had meant that she was unable to accept employment with the nursery. She submitted that that was prima facie discrimination and that Pedagogy Auras UK Ltd should be required to prove that the PCP was a proportionate means of achieving a legitimate aim [19].

Ms Begum did not accept that her jilbab was a health & safety risk and relied on her previous experience when working in a jilbab and participating in outdoor activities such as running and jumping [24]. The Respondent’s case was that Ms Begum was never actually told that she could not wear an ankle-length jilbab: she was merely asked if she might wear a shorter version than the one she had worn to the interview because her style of dress on that occasion had been perceived as a trip hazard [25].

The judgment

The grounds of appeal were as follows: that the Employment Tribunal–

• had made a perverse finding of fact regarding the perceived (and/or actual) length of the  jilbab she had worn to her interview [41];
• had failed to provide adequate reasons for its factual finding regarding the perceived (and/or actual) length of the jilbab that she wore to her interview [42];
• had failed to make a critical finding of fact as to the length of her jilbab (whether perceived or actual) while she was standing up and/or moving around [43];
• had failed properly to identify the PCP which was applied by Pedagogy Auras and/or its indirectly discriminatory nature/effect [44];
• had misapplied the law when dealing with the question of detriment/disadvantage and/or failed to take into account relevant evidence [45]; and
• had failed properly to consider the question of justification and/or give adequate reasons for its conclusion on that issue [46].

The EAT dismissed the appeal. The Employment Tribunal’s view about the length of Ms Begum’s jilbab at her interview might have been a source of some confusion [71]. As to the perversity argument, given that the EAT had not seen all the evidence that was before the Employment Tribunal, it was impossible to say that the finding of the Employment Tribunal was perverse:

“The Employment Tribunal has preferred the evidence of the Respondent to that of the Claimant, and the Claimant has failed to surmount the high threshold of proving an overwhelming case that the finding is perverse” [72].

The EAT did not accept that it was necessary for the Employment Tribunal to determine the precise length of the jilbab that was worn by Ms Begum to the interview [73]. The PCP could not be said to be either wrong or unreasonable, the Employment Tribunal was perfectly entitled to have regard to the evidence of an experienced nursery teacher and manager [74] and there was “no conceptual difficulty with a PCP as formulated by the Employment Tribunal in this case” [75]. The PCP had not been discriminatory [76]; and the reasoning of the Employment Tribunal had not been inadequate [77].

Finally, as to Ms Begum’s criticisms of the Employment Tribunal’s responses under the Burns / Barke processes, [1] they had not been an attempt “to engage in advocacy, to defend earlier findings or present its decision in a better light. The factual findings marry up with the [Employment Tribunal’s] original decision” [78].

Comment

As in so many disputes about employment, this case turned on the facts; and the EAT was not convinced that the evidence supported Ms Begum’s version of events.

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[1] The procedure, called after the cases of Burns v Royal Mail Group Plc & Anor [2004] UKEAT 0873 02 1401 and Barke v Seetec Business Technology Centre Ltd [2006] UKEAT 0917 04 1301, under which the EAT may ask an Employment Tribunal clarificatory questions about its reasoning.