As a trade union rep I think it is fair to say that my first instinct is to side with an employee in most situations, fundamentally this is probably derived from experience – it is employees and not the employer who come to me seeking advice and representation along with a preference for the underdog.
Reading the judgement in Begum v Pedagogy Auras however it is difficult to come to any conclusion but the employer acted impeccably throughout and is a model of how to manage what was undoubtedly a difficult situation conscientiously.
In the Qu’ran Muslim women are directed to cover their bodies when outside:
Tell the believing men that they shall subdue their eyes (and not stare at the women), and to maintain their chastity. This is purer for them. God is fully Cognizant of everything they do. And tell the believing women to subdue their eyes, and maintain their chastity. They shall not reveal any parts of their bodies, except that which is necessary. They shall cover their chests, and shall not relax this code in the presence of other than their husbands, their fathers, the fathers of their husbands, their sons, the sons of their husbands, their brothers, the sons of their brothers, the sons of their They shall not strike their feet when they walk in order to shake and reveal certain details of their bodies. All of you shall repent to God, O you believers, that you may succeed.” (Quran 24:30-31)
For this reason many Muslim women choose to wear a Jilbab, a covering that covers most of the body although they come in a variety of lengths and designs. Sometimes they are shorter and a woman’s legs are covered by trousers, sometimes they cover the ankle but do not cover the shoes, sometimes they cover the shoes and touch the floor, sometimes they are flowing garments and sometimes they are not.
The claimant in this case applied for an apprenticeship and evidently did well in the test and interview and was offered a post.
The employer employed 16 workers, four of whom were Muslim women. Despite being a small employer the Nursery accommodated them participating in Friday prayers during working hours and workers were not prohibited from wearing hijabs and jilbabs if they wished to do so.
During the interview it was noticed that the claimant wore a Jilbab (as did other employees) but that it was of the log variety and covered her shoes. The employer was concerned this was an unreasonable health and safety risk (trip hazard) in the workplace which was a nursery so involved young children running around. To address this the employer asked the claimant to ensure that her work attire – which was allowed to be an jilbab – should not be longer than just covering the ankles. This requirement managed the perceived health and safety risks but still allowed the muslim claimant to wear attire that fully covered her from (and including) the ankles upwards.
The claimant did not take the job but claimed the employer’s request was discriminatory on the grounds of religion but this claim failed on two counts: first, that there had been no request not to wear religious garments and two, that the requirement not to wear a jilbab that covers the shoes – even if it did put some Muslim women at a disadvantage – was proportionate. The whole judgement can be read here.
I for one entirely agree. The employer did everything that could reasonably have been expected of them given the nature of the employment and size of the employer.
Begum v Pedagogy Auras UK Ltd  UKEAT 0309_13_2205