Can a dress code policy amount to indirect discrimination?

Background

Mr Sethi, a practising Sikh, worked within the hospitality industry. He conscientiously followed religious teachings, in particular the Kesh, which is the requirement that hair not be cut.

Elements Personnel Services Ltd (“Elements”) was an employment agency that provided temporary staff for the hospitality industry and catered to high-end hotels, such as Claridges, the Dorchester and the Connaught, for front of house roles, which included, amongst other things, food handling. At an induction / training session, Elements explained their policies and standards and required all attendees to sign various documents at the end of the event, which Mr Sethi did. This included the contract for agency workers and a Code of Conduct (“Dress Code”), the latter of which contained a clause that stated “Male: Hair must be neatly trimmed…No beards or goatees are allowed”.

Whilst a portal was opened for Mr Sethi to put himself forward for jobs, he confirmed with Elements that he would be unable to shave his beard due to religious reasons. Ms Davies, a Recruitment Manager, conferred with other managers and reverted back to Mr Sethi stating that whilst “she would love to have enough shifts without food handling”, this wasn’t the case and she suggested an alternative agency; she cited health and safety / hygiene reasons and client requirements.

Employment Tribunal

Mr Sethi brought an Employment Tribunal (ET) claim on the grounds of indirect discrimination.

The ET had to consider whether the Dress Code amounted to a provision, criterion or practice (PCP) that put Mr Sethi at a particular disadvantage due to his religion (a protected characteristic), whether it applied equally to all agency workers and whether it was a proportionate means of achieving a legitimate aim i.e. maintaining food hygiene, high standards of appearance and complying with client requirements.

Whilst the Dress Code applied to all agency workers, the ET found that it amounted to a PCP within the statutory definition, as it placed Sikhs at a particular disadvantage because “of a fundamental tenet of the Sikh faith”. Whilst Elements had legitimate aims in maintaining hygiene and complying with client requirements, the Dress Code and the client requirements amounted to unlawful discrimination. The Dress Code, on its face, was not concerned with hygiene; rather, it referred to appearance as a “powerful visual image”. Elements had not considered whether the aims could be met in a less intrusive way or asked the clients directly whether they would be willing to make an exception in these circumstances or even explore this possibility. The ET concluded that a significantly greater proportion of Sikhs will not be able to comply with the PCP than people who did not have that characteristic.

Mr Sethi was awarded £7,102.17, which included £5,000 injury to feelings plus interest of £797.81.

Comments

It highlights the importance of considering each element of a code of practice in turn and avoiding the situation where a policy disproportionality affects a particular group. This case is a reminder of the issues that can present themselves when businesses put in place inflexible dress policies that impose blanket bans.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.