“Beard ban” can be discriminatory according to Tribunal

Written by Brabners LLP

In the recent case of Sethi v Elements Personnel Services Ltd the Employment Tribunal ruled that the claimant had suffered indirect discrimination under the Equality Act 2010. A temporary work agency had refused to take the claimant on after he told them that he could not remove his beard for religious reasons. Why is this decision important to your business? 

The claimant, Mr Sethi, is a practicing Sikh who follows Kesh, the requirement that no hair on the body can be cut. Elements Personnel Services Ltd (EPS) is a temporary work agency supplying workers to high-end five-star hotels and restaurants such as the Dorchester and Claridge’s, mainly in front of house, food and beverage roles. In November 2017 the claimant attended an induction with EPS, where the agency set out its strict dress and appearance policies in a presentation. All men were required to be clean-shaven. EPS’s policy was concerned with appearance, rather than hygiene, and had allegedly been implemented because of demands from the agency’s clients. The requirement to be clean-shaven was further stipulated in the agency’s standard contract, which the claimant signed. All those who attended the session were taken on by the agency. They were provided with access details of an online portal so as to put themselves forward for jobs.

At the end of the session, Mr Sethi approached the EPS recruitment manager to explain that he would not be able to shave his beard for religious reasons. Subsequent email correspondence resulted in EPS refusing to admit the claimant onto their books unless his beard was removed. The agency argued this was now due to hygiene purposes, not appearance, and there was simply no point in allowing him to join them as the claimant wouldn’t get enough shifts.  Following the agency’s refusal, Mr Sethi brought a claim of indirect religious discrimination at the Employment Tribunal.

Although Mr Sethi was rejected by Elements, he went on to successfully apply and work at the five-star hotel The Savoy, in London, via another agency.

Decision

The Judge ruled in favour of the claimant. The Tribunal found there had been indirect discrimination contrary to the Equality Act 2010. EPS’ strict no beard policy was a provision, criterion or practice that placed Sikhs generally, and Mr Sethi in particular, at a particular disadvantage because of his religious belief.

The Tribunal also found that the no beards policy-related more to appearance than hygiene. Evidence was submitted by EPS citing documents from the Dorchester and Claridges which requested men to be clean-shaven. However, they were unable to prove instances where an individual had been refused work after not being unable to remove a beard for religious reasons.

EPS attempted to argue that the requirement to be clean-shaven was not imposed by them but their clients, but the Judge criticised EPS for their failure to actually approach their clients to see if they were willing to make an exception to the policy for Mr Sethi based on religious grounds. EPS may have had a defence to the claim if they could show that they had a legitimate reason for the no beards policy, but this defence failed because it wasn’t proportionate not to attempt to see if their client would make an exception given the circumstances.  

Mr Sethi was awarded £7,102.17 in compensation for indirect religious discrimination. This sum included £1,208 for loss of earnings and £5,000 for injury to feelings in addition to interest of £797.81.

Practical tips for employers

It must be remembered that discrimination claims can be brought by workers as well as employees. Dress codes must be objectively reasoned and proportionate to the work being undertaken. Account should also be made for those adhering to religious practices, with exceptions provided if appropriate.

 

This bulletin is for general guidance purposes only and should not be used for any other purpose. Brabners is a Limited Liability Partnership.

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