Via the Mail Online we learn that Hannah Adewole has taken her employer, Barking, Havering and Redbridge University Hospital NHS Trust, to an Employment Tribunal for forcing her to wear trousers rather than a dress in the operating theatre.
Mrs Adewole, 45, is suing the NHS Trust for religious discrimination. She claims that the Bible cites that women should not wear men’s clothing, which prohibits her from wearing trousers. City University, where she worked as a midwife, required her to wear scrub trousers to prevent infection. When Mrs Adewole refused to wear the trousers she was removed from the labour war to post-natal care. She was upset by this and pointed out that Muslim midwives are allowed to wear their personal hijabs in the theatre as well as their own tops under scrub tops to cover their arms to comply with Islamic practice. She has further claimed that she was never made aware of the Trust’s policy and received contradictory advice at the time as to what she was allowed to wear.
This claim would appear to be for direct discrimination on the grounds of Mrs Adewole’s religious beliefs under s.10 of the Equality Act 2010. Mrs Adewole is therefore contending that she was treated less favourably than other employees (not of her religion) on the grounds of her following the Christian faith. There also appears here to be a case of indirect religious discrimination.
The first question that needs to be asked is: what is the protected group? Christianity. Does the Claimant belong to the protected group? The answer seems to be unequivocally “yes”. Did the Respondent know that she belonged to that group? The answer, again, appears to be “yes”.
There does appear to be less favourable treatment on the face of it here. Mrs Adewole is alleging that she was not allowed to wear the scrub dress which she had previously worn to comply with her religious beliefs. Muslim midwives, on the other hand, were allowed to wear a personal hijab and a top covering their arms to comply with Islamic practice. The comparators here are therefore actual comparators – the Muslim midwives who were allowed to wear their own dress in compliance with their religion.
As there does seem to be a prima facie case of discrimination, the burden falls upon the Respondent to provide an explanation for the discriminatory treatment. The Respondent could do so through two methods: firstly, by showing that the Claimant’s treatment was a proportionate means of achieving a legitimate aim – that requiring nursing staff to wear scrub trousers was necessary and that the prevention of infection couldn’t have been achieved through less restrictive methods. Whether wearing a scrub dress is more or less likely to prevent infection is a matter for expert medical opinion. Secondly, the NHS Trust could argue that Mrs Adewole’s belief that she must not wear trousers is a personal belief and not a requirement of her faith. This is something that the Tribunal would have to get expert evidence upon, probably from practicing clergy.
Under s.19 EA 2010 it is prohibited to apply a provision, criterion or practice which is discriminatory in relation to the Claimant’s religion (Christianity). Discrimination is defined as the difference in treatment afforded to persons not of the Christian religion (in this case) and the Christian religion, such treatment placing those of the latter category at a particular disadvantage as compared to those not of the Christian religion because of the PCP. The PCP must place Christian employees at a particular disadvantage and the Respondent must not be able to show that the PCP was a proportionate means of achieving a legitimate aim.
Where Mrs Adewole could fail in her claim is on the last two points. Firstly, since Eweida v British Airways it has been suggested (and upheld) that the PCP must disadvantage not just that one worker but other employees of the same faith. This does not appear to be the case in this instance. Secondly, as above, the religious belief of the Claimant must not just be a personal belief but a requirement of the religion.
Whether Mrs Adewole succeeds in her claim is obviously a matter for the Employment Tribunal. Although she may be able to show a case of prima facie discrimination in the direct discrimination head of claim the Respondent would be entitled to argue that the wearing of trousers is not a requirement of Christianity and that the requiring of wearing scrub dresses was a proportionate means of achieving a legitimate aim. The indirect discrimination claim may also fail for the reason that the requirement didn’t disadvantage multiple workers, only Mrs Adewole.