An Employment Tribunal has recently considered a claim for indirect discrimination related to religion where an agency refused to keep a work seeker on its books because he would not be able to shave his beard for religious reasons.
Under the Equality Act 2010, one of the types of unlawful discrimination is indirect discrimination: where an employer applies a provision, criterion or practice that disadvantages job applicants or employees of a particular racial group without being able to justify doing so. The tribunal had to decide whether the agency had indirectly discriminated against the work seeker in this case.
Sethi v Elements Personnel Services Ltd
Mr Sethi is a practising Sikh. He prays and meditates, attends the Gurdwara weekly and participates in Lungar, the practice of food sharing. He adheres strictly to Kesh, which is the requirement that the hair of the body not be cut. He believes, in common with other Sikhs, that it is what you are born with and you do not cut it.
Mr Sethi sought work with Elements Personal Services Ltd, an agency that works predominantly with 5 star hotels, in front of house, food and beverage roles. After making initial enquiries with Elements, Mr Sethi attended an induction/training session with them. At the session, Elements’ policies were explained and pictures were shown of the dress and appearance standard required for those working for the agency. Mr Sethi signed the standard contract for agency workers, which included a code of conduct that stated “the impression we create by our personal appearance…communicates more about us in one glance than can be said in a thousand words…male hair must be neatly trimmed…no beards or goatees are allowed.”
At the end of the session everyone present was ‘hired’. However, that meant only that they were placed on the books, not that they were offered immediate employment. At this time, anyone who was on the agency’s books could access a portal where they were able to put themselves forward for jobs.
At the end of the session, Mr Sethi approached Elements’ recruitment manager to explain that he would not be able to shave his beard for religious reasons. Some discussion and emails followed, culminating in an email to Mr Sethi which stated that it would not be worth his while to work with Elements because they would not have enough shifts to give him; as they were working with 5 star hotels, the managers would not allow having facial hair due to health and safety/hygiene reasons. It went on to say that if they worked with hotels of lower star ratings, facial hair “wouldn’t be as big of an issue.” It was acknowledged that Mr Sethi’s beard was part of his religion but equally that having no facial hair was “part of the 5* standards”.
Mr Sethi brought a claim for indirect discrimination against Elements in the Employment Tribunal.
The Tribunal commented that the no beards policy was about appearance rather than hygiene. It found that other than suggesting that Mr Sethi approach a different agency, Elements did not offer him any alternatives. Elements argued that client requirements were entirely outside of its control and that even if they sent such workers, they would be sent home to shave by the client. The Tribunal accepted this but noted that they failed to produce any evidence of their clients being asked about whether they would accept a Sikh working for them who could not shave for religious reasons. Therefore, the possibility of making an exception to the policy for Sikhs had not been explored.
It found that Elements’ no beards policy placed Sikhs generally, and Mr Sethi, at a particular disadvantage because it is a fundamental tenet of the Sikh faith to have an uncut beard. Elements could not justify this, particularly as it could have taken Mr Sethi onto its books and addressed client requirements on a case by case basis by seeking exceptions for Sikhs with an explanation that they are unable to shave for religious reasons. Mr Sethi’s claim for indirect discrimination therefore succeeded.
The Tribunal awarded Mr Sethi £7,102 in compensation for indirect religious discrimination, comprising £1,208 for loss of earnings and £5,000 for injury to feelings, plus interest. The Tribunal decided that this is a case that merits an award in the lower band for injury to feelings as it was a one-off incident that occurred after little contact between Mr Sethi and Elements, but nevertheless his feelings were hurt.
This case serves as a reminder that discrimination claims can be brought by people other than employees, and that ensuring recruitment procedures are fair is paramount.
When imposing specific policies on employees’ dress codes and appearance, it is important to ensure there is a legitimate reason for doing so, such as health and safety or business reasons. Employers should also look at whether there are any other ways of achieving the same aim, liability for indirect discrimination will only be avoided if it can be shown that the rule being applied is objectively justified, i.e. it is a proportionate way of achieving a legitimate aim. Exceptions to blanket policies should also be considered, particularly where one group may be put at a disadvantage.
If you have any queries in relation to dress codes, policies or discrimination or of you have any other HR or employment law queries please contact our employment team on 01228 552600 or 01524 548494.