Mr Kovalkovs, the Claimant, was a factory worker at a chicken processing company in Dundee. His Orthodox Christian faith meant that he always wore a crucifix necklace. The company had a foreign body control policy which only permitted employees to wear a wedding band in the factory. The only departure from this rule was that religious jewellery was permissible so long as a risk assessment was undertaken. One of the items explicitly forbidden was chains that could become tangled in the machinery.
He was asked to remove the chain by his manager who considered the matter resolved. The Claimant believed the necklace came under the religious exception. No risk assessment was carried out. Another manager questioned him about the necklace, that he had continued to wear, and enquired as to why a risk assessment had not been undertaken.
The risk assessment was carried out. It detailed that there was a risk of the necklace becoming caught in machinery due to its links. The manager didn’t ask to see it or discuss any potential solutions with the Claimant including having the necklace inside his clothing or ensuring that the PPE he was wearing covered the necklace. Due to the risk assessment the Claimant was again asked to remove his necklace, and when he refused he was dismissed for failing to follow a reasonable management instruction. He appealed his dismissal and explained that other employees wore lanyards. The company explained that these were designed to break and the necklace was not mentioned by the Claimant during his interview. His appeal was not upheld.
The Claimant raised a claim of indirect discrimination due to religion at the Employment Tribunal. This case was not successful and the judgment stated this was because the company had followed their policy on jewellery and the Claimant breached it.
However this was overturned at the Employment Appeal Tribunal. The reason for this was the risk assessment. The judgment stated it was not fully completed, the manager had never done one before and did not discuss alternative solutions with the Claimant. It was described as “cursory” and there was no evidence led that proved the health and safety considerations outweighed the Claimant’s right to express his religion.
Employers should ensure that policies are balanced against the rights of employees. When risk assessments are undertaken these should be done by employees with adequate experience. Expert legal or health and safety advice is invaluable on these occasions and could have saved this employer from having to pay out over £20,000.
If you have any questions on any of the issues raised in the above article, please contact Natalia Milne.