In Mr J Kovalkovs v 2 Sisters Food Group Limited [2022] UKET 4102454/2020, Mr Kovalkovs, an Orthodox Christian, was a quality inspector in 2 Sisters Food Group’s chicken processing factory. He wore a silver crucifix on a neck-chain as an expression of his faith. 2 Sisters’ Foreign Body Control policy stated that “jewellery must not be worn in the production areas on site, with the exception of a single plan band ring”. An exception was made for religious jewellery, subject to a risk assessment; however, the risk assessment concluded that “because the chain was made of links there was a risk of contamination” and there was a potential for “entanglement, entrapment or tearing”. Mr Kovalkovs refused to give up wearing his crucifix and was dismissed.

His original claim before an Employment Tribunal was dismissed; however, on appeal to the Employment Appeal Tribunal, in a judgment on 2 February 2022 (of which I have not seen a transcript), Lord Fairley set aside the original judgment of 8 March 2021 to the extent that it dismissed the claim of indirect discrimination. As quoted in the ET’s judgment of 30 May 2022 at [2], Lord Fairley had concluded in the EAT that:

“It is obvious from the facts found by the Tribunal that the PCP [Provision, Criterion or Practice] which was applied to the appellant in this case was simply the general prohibition on jewellery contained within the Foreign Body Control policy”.

Further:

“[the] Tribunal erroneously inverted the onus of proof in relation to the issue of proportionality. In consequence, it failed to make any determination as to whether or not the respondent had discharged the burden of proof placed on it by section 19(2)(d)”.

He ordered that the case be remitted back to the same Employment Tribunal to reconsider the issues of liability and (if appropriate) of remedy in the indirect discrimination claim, having concluded that the PCP that ought to have been considered was the “general prohibition on jewellery contained in the Foreign Body Control policy” [14].

At the rehearing, Mr Kovalkovs argued that when considering if the policy was a proportionate means of achieving a legitimate aim, the Tribunal should take into account that other employees wore such items as lanyards, identity passes and keys around their necks. He also asserted that the respondent’s witnesses had admitted that the risk assessment had not been scored properly and that 2 Sisters had failed to discharge the burden of proof [4]. 2 Sisters responded that the EAT had only overturned the original judgment to the extent that the original Tribunal had erroneously inverted the burden of proof on proportionality under s.19(2)(d) Equality Act 2010 [7].

On balance, the ET concluded that 2 Sisters had failed to demonstrate that the health and safety of staff and customers had outweighed the discriminatory effect on Mr Kovalkovs of being prohibited from wearing his necklace because the risk assessment had not been “appropriately fulfilled”. The policy could not, therefore, be considered to be proportionate or necessary and the company’s Foreign Body Control policy and its application to Mr Kovalkovs had been indirectly discriminatory [24&25]. He was awarded £22,074.68 [35].