Facts

The Claimant in this case is a practising Sikh observing key elements of the faith including prayer, meditation, attendance at the Gurdwara and participating in Langar. The Claimant also strictly adheres to the requirement that the hair of the body is not cut (Kesh) and, therefore, has an uncut and unshaven beard on the basis of his religious belief. The Respondent is an agency that, in the main, works with five-star hotels to provide front of house, food and beverage staff. 

The Claimant applied for a role with the Respondent and attended an induction session before signing the Respondent's standard contract for agency workers. At the induction, the Respondent went through its policies and, as part of that, showed pictures of the standards of dress and appearance expected of its staff. The code of conduct also specified that "male hair must be neatly trimmed…no beards or goatees are allowed". 

At the conclusion of the induction, all individuals in attendance were placed on the books, whereby they could put themselves forward for jobs through the Respondent's portal, but not offered immediate employment. The Claimant advised that he would be unable to shave his beard due to his religious beliefs. The Respondent confirmed that its "no beards policy" was for "health and safety/hygiene reasons" in line with their five-star service and therefore the Claimant was unlikely to meet the required standards and should look elsewhere. The Claimant brought complaints of indirect discrimination in the Employment Tribunal.

Tribunal decision

The tribunal held that the "no beards policy" was a provision criteria or practice (PCP) for the purposes of section 19(1) of the Equality Act 2010. It noted that Sikhs practising Kesh were put at a particular disadvantage by the PCP and, other than suggesting that the Claimant approach a different agency, the Respondent offered no alternative options. Although the tribunal accepted that neatly trimmed facial hair was a legitimate aim for meeting client requirements, the blanket "no beards policy" was not justified as a proportionate means of achieving that aim.

The Respondent was criticised by the tribunal for the following reasons in particular: 

• there was no evidence that any of the Respondent's clients had been asked whether they would make an exception for a Sikh worker;
• there was no evidence of what the Respondent's clients would in fact require when faced with a Sikh worker;
• not all of the Respondent's hotel clients had a "no beards" requirement;
• the client's requirements were untested in the context of potential exceptions for religious reasons, to enforce a blanket "no beards policy" that deprived Sikhs of work; and
• the Respondent's policy was for appearance and not health or safety reasons (even though they had advised the Claimant that it was for health and safety/hygiene reasons).

The tribunal made an award to the Claimant for indirect religious discrimination in the lower band for injury to feelings as it was a one-off incident after limited contact.

Comments

The Respondent might have avoided this issue by accepting practising Sikhs into its employment/engagement and then seeking an exception for those Sikhs who are unable to shave for religious reasons. It was open to the Respondent to address any clients' concerns on a case-by-case basis. This would have likely met the legitimate aim of meeting a client's requirements. 

This case is a helpful reminder that discrimination claims can be brought by individuals outside the employment relationship and that such claims can be brought as a result of issues arising as early as the recruitment stage. It is also a stark example of how an employer can fall foul with a dress code policy or practise in the context of equality, diversity and religious discrimination. Equality and diversity issues frequently come up in customer-facing roles. So, what do employers need to watch out for when setting dress codes? 

• Be sensitive to the cultural and religious needs of employees.
• Consider exceptions to blanket policies, especially where a particular group may be put at a disadvantage.
• Employers may have health and safety reasons for having certain standards; however, this must be connected to a real business or safety requirement and be justifiable as a necessary means of achieving a legitimate aim (which can be evidenced).
• Adopt a proportionate approach and do not impose overly restrictive dress codes upon employees where it is not necessary.