Put on your safety pants

A cleaner in a support service provider company claimed the required uniform was discriminatory against her religious beliefs. As a Somalian Muslim, the employee was required to wear ankle-length skirts. However, the company’s uniform only provided the option of pants or knee-length skirts. The employee refused to wear the required uniform and was given a temporary dispensation from the company and was provided with two ankle-length skirts.

The employee performed her work at a hospital, and part of her work tasks was emergency alert responsibilities. During a fire alarm, she was supposed to evacuate the patients and fell on the stairs. After this, the company decided to revoke the dispensation for safety reasons. She was therefore required to wear pants but was allowed to wear an apron over the pants.

The dangerous skirt

The court concluded that the requirement was indirect discrimination against the employee’s religious beliefs. However, the court found the requirement to be lawful because safety was a justified cause, and the requirement was proportionate, and necessary.

As the uniforms were neutral and required for all employees, the requirement was not directly discriminatory against Somalian Muslim women. Other ethnicities and religions could also be impacted by the requirement, such as Brunstad Christian Church members that require ankle-length skirts for women.

The requirement was indirect discrimination but was implemented based on safety. The uniforms were developed with the company’s HSE department. This was to ensure that employees could perform their tasks safely, and the most significant risk for the employee’s work was falling. Her work tasks required much physical movements, such as work performed on foldable stairs and evacuation. Pants or knee-length skirts gave more flexibility and were closer to the body than ankle-length skirts.

It was also emphasized that the company had given the employee dispensation because of her religious beliefs up until her fall. The company had further facilitated other religious requirements when designing the uniforms, such as uniform hijabs.

IUNO’s opinion

As a clear rule, employees are entitled to wear religious symbols such as hijabs, calots, turbans or cross jewelry during working hours. In terms of uniforms, companies can generally not forbid this and will be limited to set requirements for the religious expression’s design. For example, the material and colour of a hijab.

IUNO recommends that companies discuss implementing safety measures with employee representatives and safety representatives to ensure compliance. The company can be held liable for work injuries and must implement measures to prevent and avoid this. Such measures can risk being discriminatory and will only be legal if they have a justified cause, are proportionate, and necessary.

[Borgarting Court of Appeal’s judgement of 27 February 2023 in case LB-2022-97422]