Can an employer require a work uniform that conflicts with employees’ religious beliefs? This is a classic issue that has been the subject of several judgments, including in the European Court of Human Rights. This week, the Borgarting Court of Appeal issued a ruling (22-097422ASD-BORG/03) in a case where a hospital cleaner claimed she was discriminated against because her employer required her to wear pants. The employee, a Muslim woman of Somali origin, held religious beliefs that required her to wear an ankle-length skirt.
The Court of Appeal concluded that the requirement for uniform pants constituted indirect discrimination, as the mandate to wear pants would disadvantage Muslim women who, according to their religion, must wear long skirts, compared to others. The question was then whether the discrimination was nevertheless lawful because it had a legitimate purpose, was necessary to achieve that purpose, and was not disproportionately intrusive towards the employee.
The rationale for the pants requirement was particularly related to health, safety, and hygiene, as the employer believed that the long skirt created a risk of tripping and falling, as well as potentially spreading bacteria. On one occasion, the employee had fallen during a triggered fire alarm, which underscored that this was a relevant issue.
The court, with some reservations, concluded that the discrimination was lawful. According to the Court of Appeal, the consideration for health and safety was a central concern, which carried significant weight in the balancing of interests between employer and employee. It was also somewhat significant that the employer would be held liable for occupational injuries resulting from tripping and falling, even though it was the employee who wished to wear a skirt.
