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17 February 2020

220: ‘No beards’ policy – indirect religious discrimination

Indirect discrimination may arise where an employer applies a rule which is the same for everyone but has a disproportionate effect on workers sharing the claimant’s protected characteristic (ie sex, disability, sexual orientation, gender reassignment, marriage and civil partnership, race, age or religion or belief), and which the employer cannot justify as a proportionate means of achieving a legitimate aim. In Sethi v Elements Personnel Services Ltd, an Employment Tribunal recently held that a temporary work agency indirectly discriminated against a Sikh worker when it refused to keep him on its books because he would be unable to comply with its ‘no beards’ rule.

Elements Personnel Services Ltd is an agency which specialises in providing temporary staff to five-star hotels for front-of-house food and beverage roles. The agency’s Code of Conduct emphasised the importance of a professional appearance and stated that no beards or goatees were allowed, without exception. Mr Sethi is a Sikh who adheres to Kesh, the requirement that body hair not be cut. The agency refused to give him work because he could not comply with its ‘no beards’ policy, informing him that the hotel managers of five-star hotels would not allow facial hair for health and safety and hygiene reasons. Mr Sethi subsequently brought a claim for indirect religious discrimination in the Employment Tribunal.

The Tribunal accepted that, in principle, the agency could justify a ‘no beards’ policy with the legitimate aim of seeking to comply with client requirements by requiring appropriate hygiene and personal appearance standards. However, it concluded that in this instance, it was disproportionate because these aims could be met by requiring a Sikh to maintain a tidy beard, and the ‘no beards’ requirement was an issue concerned with appearance, not hygiene, unless a worker was to be directly involved in food preparation. In any event, the agency’s policy did not mention hygiene, only appearance. Crucially, there was also no evidence that the agency had explored whether any of its clients would make an exception to their policy to accommodate religious beliefs and not all the agency’s clients had a ‘no beards’ policy. Mr Sethi received compensation of £7,102, including an award of £5,000 for injury to feelings.

This case is a reminder that codes on professional appearance must be carefully drafted to avoid potentially discriminatory requirements. The Tribunal noted in its judgment that there is a significant element of subjectivity as to what constitutes a smart appearance, in particular, as regards facial hair, but that in practice a ‘no beards’ policy is likely to amount to a ‘no Sikhs’ policy. In this case, there was evidence that the agency’s clients would not accept workers with beards, but this should have been addressed on a case by case basis by seeking exceptions for Sikhs. It was also relevant that Mr Sethi had subsequently obtained hospitality work through a different agency, including bar work at the five-star Savoy hotel.

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