The claimant was employed by the respondent as a press operative before being promoted to quality inspector. This was in a chicken processing factory.  The claimant is a Christian following the Russian Orthodox Church. He believes that a crucifix should be worn close to the chest to signify his commitment to the belief. The crucifix the claimant wore had been sanctified during a baptism and had been a gift from his mother. The respondent had a policy on ‘Foreign Body Control’. Part of this stated that jewellery must not be worn with the exception of a single band ring. A further exception was made in the policy for religious jewellery albeit subject to a risk assessment.   

A risk assessment on religious jewellery was undertaken in November 2018 which outlined five hazards including foreign body contamination, reaction to metal and injury due to entanglement. On the day the claimant began work as Quality Inspection (in December 2019) his line manager noticed that the claimant was wearing the necklace and she told him to take it off.  The claimant did not argue and the line manager believed that the claimant understood not to wear it again. There was no specific risk assessment carried out in relation to the claimant’s necklace. The claimant, however, believed that he should be able to continue wearing it as it was religious jewellery.   

In January, the claimant complained that he was being bullied by other staff. This led to a meeting where his necklace was noticed again by another member of management. The claimant was asked to remove it. The claimant stated that he did not want to remove it as it was religious jewellery. He was asked if a risk assessment had been carried out and he said no, but that his line manager was aware of it. The line manager subsequently carried out the risk assessment but was ‘embarrassed’ as this was requested by her line manager. The necklace was not inspected and the claimant was not consulted in any detail.  The line manager found that there was a risk of contamination and entanglement. There was no discussion of mitigations that could be made to allow the claimant to continue wearing the necklace. When he was informed of the outcome he was told he must remove the necklace. He refused whereupon he was sent to HR who informed him that he was refusing to obey a management instruction and as he was in his probationary period his employment would be ended immediately.   

The claimant brought a claim for religious discrimination. It was for the Tribunal to determine whether the respondent had acted proportionately. This requires the PCP to be ‘reasonable necessary’. This case was actually a remittal from an appeal as the first instance Tribunal had placed the burden on the claimant of showing that it was proportionate for him to continue wearing the jewellery. In this judgment, the Tribunal outlined that it was for the respondent to prove justification, the measure must be reasonable necessary, balance must be struck between the objective and the discriminatory effect and the Tribunal must decide whether the need of the respondent outweighs the discriminatory effect.  

In considering the above, the Tribunal found that there was a legitimate aim in the Foreign Body Control policy. The objective of the policy was sufficiently important from a health and safety matter and the policy was rationally connected to the objective. The issue was whether the means chosen were no more than reasonably necessary to accomplish the objective (relating to health and safety). In this case, it was not reasonably necessary bearing in mind the failings in the risk assessment that were carried out.  All of the sections of the risk assessment were not carried out, the chain was not inspected and there was no discussion of mitigations to allow the necklace to be worn.  As a result, the respondent had failed to show that the health and safety objective had outweighed the discriminatory effect on the claimant.  As a result, the Tribunal found that the discrimination fell within the middle band awarding £12,500 in damages for injury to feelings.  

Practical Lessons

The difficulty for the respondent in this case was the lack of robustness in the risk assessment process. The fact that the risk assessment was not adequately completed and no real investigation was carried out before coming to a conclusion then put the respondent on a back foot in trying to show that the action taken was reasonably necessary and proportionate. Therefore, employers should be cognisant that where a policy is being applied in relation to a protected characteristic that there is a need to ensure a balance is struck between the legitimate objective (health and safety in this case for both staff and customers) and the discriminatory effect faced by the employee.      
https://www.gov.uk/employment-tribunal-decisions/mr-j-kovalkovs-v-2-sisters-food-group-ltd-4102454-slash-2020