A Christian factory worker was unfairly dismissed after he refused to remove his crucifix necklace at work, an employment appeal tribunal (EAT) has found.
The Dundee employment tribunal heard that Mr J Kovalkovs refused to take off a necklace as it had a religious importance. However, his employer, 2 Sisters Food Group, argued that its policy prohibiting the necklace was one of health and safety, both in relation to the risk of contamination to the food product and also to avoid the employee becoming tangled in machinery.
Employment Judge Cowen said the application of a “foreign body control policy” placed Kovalkovs at a disadvantage, as he would not be allowed to wear his necklace: “It was clear to us that the claimant had lost a job as a result of the discrimination towards him.”
Kovalkovs was employed by the chicken processing firm from 12 November 2019, first as a press operative and then quickly promoted to quality inspector in the factory.
As a Christian who follows the Russian Orthodox Church, he wore a silver crucifix on a neck-chain every day, close to the chest, to signify his commitment to his belief.
However, 2 Sisters Food Group’s foreign body control policy, part of its food safety processes, did not permit employees to wear jewellery aside from a single, plain band ring. An exception could be made for religious jewellery but only following a risk assessment.
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When Kovalkovs began work as a quality inspector on 23 December 2019, his line manager Ms McColl asked him to take off the necklace and Kovalkovs obliged.
The tribunal noted that McColl believed the issue had been dealt with and so did not complete a risk assessment but this was not Kovalkovs’ understanding as he believed the necklace should be permitted as a religious piece of jewellery.
Around this time, Kovalkovs complained that he was being bullied by other staff and brought this to the attention of McColl and Ms Fergusson, McColl’s line manager.
A meeting was held between Kovalkovs and Fergusson on 30 January 2020 regarding the bullying allegations and, during the discussion, Fergusson noticed Kovalkovs’ necklace and asked him to take it off.
Kovalkovs told her that it was a religious piece of jewellery and, when asked if a risk assessment had been completed, told her that McColl was aware of the necklace but no form had been completed.
A risk assessment was carried out by McColl on 10 February when she met with Kovalkovs and the tribunal noted that McColl felt “embarrassed” that the matter had been raised with her by her line manager and believed this was as a result of something said by Kovalkovs.
The form was filled in and McColl concluded that because the chain consisted of links there was a risk of contamination. She also took into account the potential for entanglement, entrapment or tearing.
The tribunal heard that McColl did not have a conversation with Kovalkovs as to whether any steps could be taken to mitigate the risk, such as ensuring that it was tucked into his clothing at all times, or that his PPE could be fastened up to ensure it was not exposed.
Later in the day, Kovalkovs was sent back to speak to McColl and she told him he would need to remove the necklace but he refused.
McColl told Kovalkovs to go to the HR office where he was told by Ms Watt, a member of the HR team, that as he was refusing to obey a management instruction, his probationary period and thus his employment would be ended immediately.
On 12 February, Kovalkovs raised a grievance against 2 Sisters Food Group regarding the alleged bullying and being asked to remove his necklace.
The company wrote to Kovalkovs on 14 February to confirm he was dismissed for failing to follow a management request.
An appeal against the dismissal was held on 4 March but his dismissal was upheld.
Kovalkovs then made a claim of direct and indirect discrimination on the grounds of religion or belief, as well as for breach of contract at an employment tribunal between 14 and 15 January 2021 but the claims were dismissed.
He appealed to the employment appeal tribunal (EAT) and it sent back to the tribunal the question of indirect discrimination on the grounds of religion or religious belief in February 2022.
The tribunal considered the case and ruled that Kovalkovs’ claim for indirect discrimination succeeded.
It noted that the foreign body control policy could not be considered to be proportionate or necessary because the risk assessment had not been “appropriately fulfilled”.
Kovalkos was also awarded £22,074.68.
Commenting on the case, Alan Lewis, partner at Constantine Law, said: “Although this case is only at employment tribunal level and is therefore not binding on other tribunals when considering similar facts, it should be seen as offering some measure of guidance as to how tribunals reason the ’proportionate means’ test where the objective is one of health and safety.”
He suggested that, if the employer is to have good prospects of successfully defending an indirect discrimination case where its aim is health and safety, “any risk assessment must be carried out comprehensively”.
People Management has contacted 2 Sisters Food Group for comment. Kovalkos could not be reached.