A factory worker who was fired after refusing to remove his crucifix necklace when asked by his employer has won his unfair dismissal case after bringing a claim for indirect discrimination.

Jevgenijs Kovalkov’s employment contract with 2 Sisters Food Group was terminated after his probation period ended in February 2020. After bringing his claim to the Employment Tribunal, the case was dismissed in March 2021. Kovalkov appealed the decision, leading to a Dundee judge overturning the first verdict.

Kovalkov first served as a press operative in the chicken processing factory in November 2019, and was then promoted to the role of quality inspector, beginning his role on 23 December 2019. The crucifix necklace was worn by Mr Kovalkov for religious reasons. Being a Christian who followed the Russian Orthodox Church, he felt he was able to signify his commitment to his religious belief by having the crucifix chain close to his chest.

Ms McColl, a former line manager of Mr Kovalkov, asked for the necklace to be removed on the basis that it was a health and safety risk that breached the company’s policy. In response, Mr Kovlakov removed the chain.

In accordance with the policy at 2 Sisters Food Group, a risk assessment should have been undertaken first to determine the potential hazard of the necklace in the factory setting and its operations. However, McColl did not conduct any form of risk assessment. It is claimed she thought the matter to be closed once Kovalkov had removed the necklace on his first day. Similarly, Kovalkov had not thought of requesting a risk assessment as he thought McColl understood his religious reasons behind wearing the crucifix chain.

The issues surrounding Kovalkov’s necklace began when he had a meeting with a manager to discuss a complaint he had filed regarding bullying by colleagues. The crucifix chain was noticed by the manager who immediately asked if it had been risk assessed. Learning that it had not, the manager asked McColl to carry out a risk assessment of the chain.

McColl’s risk assessment concluded the necklace was not fit to be worn when working in the factory as she claimed there was ‘risk of contamination as the chain was made of links’. She also assessed the high risk of ‘entanglement, entrapment and tearing’.

The Tribunal raised the points that the risk assessment was not absolute and there was no consideration of mitigating the risk, such as, for example, tucking the chain underneath his clothes or his personal protective equipment.

Kovalkov was sacked after he refused to remove the religious jewellery. He argued two points:

• McColl’s order of removing the necklace was unlawful.
• The risk assessment carried out by McColl was inadequate.

The continuous manager at 2 Sisters Food Group commented that Kovalkov should have declared his crucifix necklace when he attended his induction. Kovalkov contended that other employees wore lanyards with keys around their necks which could interfere with the metal detector, and that a silver necklace would not. 2 Sisters Food Group rejected this point.

The Appeal Tribunal concluded, after considering all the evidence presented, that ‘the risk assessment was not properly applied and did not amount to evidence of proportionality’.

Judge Cowen continued to describe the risk assessment undertaken as ‘cursory’, saying:

“[2 Sisters Food Group] 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 proportionate or necessary.”

Indirect discrimination is when the employer applies a policy or criteria to everyone but it disadvantages one of the protected groups and the individual making the claim.

The chicken processing firm was ordered to pay Kovalkov £22,074. Historically, 2 Sisters Food Group has undergone enforcement action after being fined £600,000 when an employee was struck by a forklift truck. In 2019, another worker’s torso was crushed while unblocking a machine on the poultry slaughter line.

Jon Cooper, partner at Womble Bond Dickinson 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. From a health and safety perspective, arguments as to discrimination…. will always require the employer to act sensitively and reasonably.”