A factory worker who was sacked after refusing to remove his crucifix necklace has won his unfair dismissal case on appeal after a judge agreed the employer’s risk assessment had been 'cursory'.
Mr J Kovalkovs brought a claim for indirect discrimination on the grounds of religious belief against his employer, 2 Sisters Food Group, after his probation period was terminated in February 2020. In March 2021, the original employment tribunal dismissed Kovalkovs’ claim. But in in June, a Dundee appeal judge overturned that decision.
The tribunal heard that Kovalkovs was employed by 2 Sisters in November 2019 as a press operative, but was soon promoted to the role of quality inspector in the firm’s chicken processing factory. Kovalkovs is a Christian who follows the Russian Orthodox church, and he wears a crucifix on a chain close to his chest to signify his commitment to his religious beliefs.
2 Sisters’ induction training, which Kovalkovs undertook, covered the company’s 'foreign body control policy', which stated that – other than a single, plain ring – jewellery must not be worn, with the exception of religious jewellery, which would be subject to a risk assessment.
Kovalkovs began his role as a quality inspector on 23 December 2019. That day, his line manager, Ms McColl, noticed his necklace and asked him to remove it because it breached company policy, and he did so. McColl did not conduct a risk assessment, as she believed the matter to be closed; Kovalkovs did not request an assessment because he believed McColl understood the necklace was worn as part of his faith.
Around this time, Kovalkovs had a meeting with a manager to discuss a complaint he had made about bullying by colleagues. The manager noticed he was wearing the necklace and asked if it had been risk assessed. On learning there had not been a risk assessment, she said she would ask McColl to carry one out.
McColl carried out the assessment on 10 February. She concluded that there was a risk of contamination because the chain was made of links; she also considered the risks of entanglement, entrapment and tearing. The tribunal heard that she had not conducted such a risk assessment before, and did not consider mitigation such as tucking the necklace securely beneath clothes or under Kovalkovs’ PPE.
McColl told Kovalkovs that her assessment indicated he could not wear the necklace. When Kovalkovs refused to remove it, she told him to go to HR. A member of HR staff told him that as he had failed to obey a management instruction, the company was terminating his probationary period and ending his employment.
Kovalkovs appealed his dismissal on the basis that the instruction to remove the necklace was unlawful and McColl had failed to carry out the risk assessment properly. At a meeting on 4 March 2020, 2 Sisters’ continuous improvement manager said Kovalkovs should have declared the necklace at his induction. He rejected Kovalkovs’ point that other employees wore keys on lanyards around their necks, saying they would be detected by the metal detector should they fall onto the production belt but a silver necklace would not. Upholding Kovalkovs’ dismissal in a letter of 5 March, the manager did not attempt to justify the reasoning behind McColl’s risk assessment outcome and did not consider any ways of mitigating the risk.
While the appeal tribunal agreed with various conclusions of the original tribunal, Judge Cowen decided that McColl’s risk assessment had not taken into account all of the relevant information; 'This meant that the risk assessment was not properly applied and did not amount to evidence of proportionality.
'To be appropriate, the assessment would have to be completed in an appropriate manner; yet Ms McColl had never carried out such an assessment before. She did not complete all sections of it. She admitted that she had not inspected the chain, nor considered whether it could be covered in some way, or whether there was any alternative means of wearing it which would reduce the risk. The claimant’s evidence on this point, which we accepted, was that he was not consulted and that the risk assessment was cursory…
'[2 Sisters] failed to produce evidence which indicated that the health and safety of staff and customers had outweighed the discriminatory effect on the claimant of being prohibited from wearing his necklace … because the risk assessment had not been appropriately fulfilled. It could not therefore accomplish the objective of health and safety and consequently the policy could not be considered to be proportionate or necessary.'
Speaking to IOSH magazine, Jon Cooper, partner at Womble Bond Dickinson (UK) LLP, said: 'The case is another example of the potential tension between legitimate health and safety aims and treatment of employees which can be perceived as discriminatory.
'Health and safety, both in relation to the risk of contamination to the product from jewellery and in terms of the risk to the employee of potential entanglement, are legitimate considerations in cases such as this.'
But, said Cooper, employers must be able to justify their position “on the evidence, and that will require a suitable and sufficient risk assessment to be undertaken. In this case, there were issues as to the timing and adequacy of the risk assessment and hence the reasonableness of the employer's position.
'From a health and safety perspective, arguments as to discrimination – for example, where employees are required to shave for the face-fitting of protective masks – will always require employers to act sensitively and reasonably. Any decision which is potentially discriminatory will need to be taken following a full and suitable assessment of the perceived health and safety risks, and consideration must be given as to whether the decision is proportionate.'
2 Sisters Food Group was ordered to pay Kovalkovs £22,074.
The full judgment in this case can be found here.
2 Sisters Food Group has been subject to enforcement action in recent years, receiving a £600,000 fine last year after an employee was struck by a forklift truck and a £1.4 million fine in 2019 after a worker's torso was crushed while unblocking a machine on the poultry slaughter line.