Last reviewed 9 November 2015

Nigel Baker of Lexicon Employment Law Training highlights some recent discrimination-related case law decisions involving schools, nurseries and colleges.

Religious discrimination

In Begum v Pedagogy Auras UK Ltd t/a Barley Lane Montessori Day Nursery [2015] UKEAT/0309/13/RN, the applicant claimed that she had been discriminated against on the grounds of her religious belief because she was not allowed to wear a jilbab of the appropriate length in the course of her work as a trainee nursery assistant.

The nursery had objected to her full-length flowing garment because they deemed it to be a potential trip hazard to the young children and other staff. The nursery demonstrated this by showing that in particular when seated her jilbab came way past her ankles and over her shoes and thus constituted a health and safety issue.

Although the school’s instruction to her constituted a provision, custom or practice, capable of attracting claimant protection within s.19 Equality Act 2010, it was held that it was not indirectly discriminatory to Muslims because the rule against trip hazards:

  • applied equally to staff of all religions; and

  • was justified as being a proportionate means of achieving a legitimate aim — to protect the health and safety of staff and children.

The school had attempted to find a solution to the matter and other Muslim women working there wore either a shorter jilbab while at the school, changing into a longer version when they left the premises, or wore trousers under a shorter jilbab. However, these suggestions led to nothing in this case and were subsequently overtaken by events, with the claimant refusing to accept the job because of her treatment and taking out a claim.

In Mbuyi v Newpark Childcare [2015] ET3300656/2014, a devout Evangelical Christian nursery worker, who was dismissed after expressing her views on homosexuality and marriage to a lesbian colleague, successfully sued her employer for religious discrimination.

The claimant had been dismissed for gross misconduct for telling her colleague that her gay lifestyle was a sin. This allegedly had been in response to an approach that the colleague had made to her in which she asked her about religion and same-sex marriage, and during which she stated that she was angry that she had been barred from marrying her partner in a church. It was said that there was no attempt by her to target her colleague and force her faith on her.

Although the tribunal accepted that her employer was not anti-Christian, the claimant had ultimately been dismissed because their internal investigation into the matter had been hampered by stereotypical assumptions about Evangelical Christians and they had pre-judged the outcome of the investigation.

Furthermore, the employer’s decision to dismiss her was not proportionate, thereby treating the claimant unfairly. She had not harassed her gay colleague and she was entitled to express her religious views at the workplace in the circumstances which she did, despite her employer’s robust policies prohibiting staff from expressing adverse views on homosexuality.

Disability adjustments

Employers are under a duty to make reasonable adjustments for their disabled staff and if they fail to consider doing so, or fail to implement suitable measures where appropriate, they will be liable to pay compensation to staff placed at a disadvantage.

A case in point is Lambert v Lewisham Southwark College [2015] ET. The claimant, who was blind, requested software changes and additions to help him access student databases which he said was required as part of his role as the college’s Disability Officer. His requests were made over a number of years and although he was eventually assured that the matter would be addressed, nothing was done to prioritise his needs.

When he applied for a new post at the college as part of a re-structuring, he needed to demonstrate knowledge of data management and record-keeping, which were the very software systems from which he had been excluded. He was also disadvantaged because he was not given sufficient notice of a written test which was part of the application process and, therefore, was unable to properly assess what reasonable adjustments were required.

It was held that he had been discriminated against and his claim succeeded.

Employers must consider what adjustments are reasonable and various factors will be relevant including:

  • the extent to which the adjustment would have ameliorated the particular disadvantage

  • the costs in question; and

  • the amount of disruption caused to the employer.

Where the adjustment sought is a technical one, employers should take advice from relevant experts.

Race discrimination

In Ngwenya v Cardinal Newman Catholic Secondary School [2015] UKEAT/0308/14/N, the claimant brought unsuccessful claims of race discrimination against the school and also alleged that he had received an underpayment of salary based on his qualifications.

In support of his complaint, he made serious allegations against some of his colleagues. An internal investigation found the claims unsubstantiated and the school brought disciplinary proceedings against him on the basis that his allegations were vexatious, malicious and/or frivolous and were made in bad faith. This constituted gross misconduct and, following a disciplinary hearing, he was dismissed.

It was held that the school had fairly dismissed the claimant as they had a potentially fair reason to dismiss (misconduct), they had carried out a fair and reasonable investigatory procedure and their sanction of dismissal was within the range of reasonable responses.