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Case law: Employers beware blanket bans on employees’ beards worn for religious reasons

Employers should beware blanket bans on beards (or other aspects of a person’s appearance arising from their religious beliefs) unless they can show the ban is proportionate – for example, there is no other way to comply with customers’ preferences in a non-discriminatory way - or they risk an indirect discrimination claim.

February 2020

This update was published in Legal Alert - February 2020

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

An agency which provided temporary hospitality staff to high-end clients such as five star hotels operated a ‘no beards’ policy. The policy said that this was for reasons of personal appearance.

A Sikh applied for work and was told of the no beards policy at his induction. When he explained that he could not cut his beard for religious reasons, the agency told him they would not be able to give him enough work if he kept it. It said that this was because five star hotel clients required staff to be clean-shaven for health and safety and hygiene reasons.

The candidate claimed indirect religious discrimination.

It is indirect discrimination if an employer operates a provision, criterion or practice (PCP) which puts a group of employees who share a protected characteristic – such as a religion - at a disadvantage compared with people who do not share that characteristic.

However, a PCP will not be unlawful if it is a proportionate means of achieving a legitimate aim. An employer who can show the PCP was in place to achieve a legitimate aim, which cannot be achieved through less discriminatory means, will not be acting unlawfully.

The Employment Tribunal (ET) ruled that the policy was a PCP that put Sikhs, including the candidate, at a disadvantage because of their religious beliefs.

Although it found that ensuring high standards of personal appearance to comply with client wishes was capable of being a legitimate aim, the agency’s policy was not a proportionate means of achieving that aim.

It found that not all clients had a no beards policy. Also, the agency was unable to produce evidence that it had actually asked clients who did have such a policy their attitude to taking on a bearded Sikh worker, and whether they would accept alternative ways of ensuring a high standard of personal appearance from such workers (such as keeping the beard tidy).

The ET went on to find that there were alternative, proportionate means of achieving the agency’s aim which would have been non-discriminatory. The agency could have taken the candidate on, and asked clients who imposed standards of personal appearance, on a case-by-case basis, if they would accept a bearded Sikh worker and on what terms. Or the agency could have taken the candidate on and only provided his services to those clients who did not operate a no beards policy.

The ET therefore ruled that the no beards policy was not a proportionate means of achieving the aim of complying with client preferences for a high standard of personal appearance.

It ignored the justification put forward by the agency relating to health and safety and hygiene because neither of those was mentioned in its policy.

Operative date

  • Now

Recommendation

  • Employers whose customers or clients require a high standard of personal appearance from staff (but not for health and safety or hygiene reasons) should beware blanket bans on beards (or other aspects of a person’s appearance rising from their religious beliefs). Unless they can show it is proportionate – for example, that there is no other way to comply with customers’ wishes in a non-discriminatory way - they risk an indirect discrimination claim.

Case ref: Sethi v Elements Personnel Services Ltd 2300234/2018

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

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