A Christian who lost his factory job for refusing to remove his crucifix necklace has been awarded more than £22,000 after a tribunal found a flawed risk assessment contributed to his dismissal.
Mr Kovalkovs, an Orthodox Christian, worked at 2 Sisters Food Group’s chicken processing factory in Dundee.
His belief is that a crucifix necklace should be worn close to his chest as a symbol of his faith, and therefore wore the necklace every day, including to work.
When he started working at the factory in November 2019, Kovalkovs was trained in the company’s foreign body control policy, which states that no jewellery other than a single plain band ring must be worn in production areas. There as an exception for religious jewellery, subject to a risk assessment.
The policy said jewellery with small links of chains must not be worn, due to the risk of entanglement, entrapment or tearing. The claimant’s necklace fit this description.
In December 2019, Kovalkovs’ manager Ms McColl noticed he was wearing the necklace. She asked him to remove it and he did so.
McColl felt that this had dealt with the issue and that the claimant understood he should not wear it again, so did not conduct a risk assessment. However, this was not Kovalkovs’ understanding – he believed that the necklace should be allowed as it was religious jewellery and thought this was the reason why McColl had not conducted the risk assessment.
In January 2020, Kovalkovs made an allegation of bullying. He attended a meeting with another manager, Ms Fergusson, who noticed he was wearing the necklace and asked him to take it off. He told Fergusson that he did not want to remove it as it was religious jewellery and Fergusson questioned why a risk assesment had not been carried out.
In February 2020, McColl conducted the risk assessment. She was not pleased that the matter had been raised, and believed that the claimant had said something to her line manager about a risk assessment not being carried out.
She concluded that, as the chain was made of links, there was a risk of contamination, entanglement, entrapment and tearing. She did not discuss the chain in any detail with the claimant nor inspect whether it was in good condition. There was no conversation with him about whether steps could be taken to mitigate risk, such as ensuring that it was tucked into his clothing, or that his PPE could be fastened up to ensure it was not exposed.
Kovalkovs was asked to remove the necklace. He refused and was told to go to the HR office, who told him that he was refusing to obey a management instruction and would be dismissed with immediate effect.
He appealed against the decision, claiming that other staff carried keys on lanyards around their necks. The company upheld his dismissal, stating that he failed to declare the religious necklace in his induction and that the lanyards were designed to snap if they became entangled in equipment.
Kovalkovs brought a claim of indirect discrimination on religious grounds to the Scottish employment tribunal, but it was dismissed in March 2021, with the judgment stating that the company was right to dismiss him as he had breached its jewellery policy.
However, the decision was set aside by the Employment Appeal Tribunal in February 2022, with the EAT judge Lord Fairley stating that the tribunal had “erroneously inverted the onus of proof in relation to the issue of proportionality”. He ordered the case be reheard by the same tribunal.
In a decision handed down earlier this month, the tribunal found that the risk assessment “was not properly applied and did not amount to evidence of proportionality”.
The judgment says: “To be appropriate, the assessment would have to be completed in an appropriate manner. The evidence heard by the tribunal in relation to the risk assessment indicated that Ms McColl had never carried out such an assessment before.
“She did not complete all the 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.”
It found that the company 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.
“This was 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,” the judgment says.
The claimant was awarded £22,074.68, including awards for loss of earnings, injury to feelings and interest.