Factual background
Mr Harris (H) alleged direct and indirect discrimination under the Regulations. He was a driver who had been supplied by an agency to the end-user, NKL Automotive (NKL). In essence, H argued that he was not being allocated as much work as other agency drivers and was not offered a position as a direct employee of NKL. He said this was because he wore his hair in dreadlocks, because he was a Rastafarian.
Employment tribunal’s findings
H lost his claim for direct discrimination against NKL before an employment tribunal. It was accepted by the tribunal that at the relevant time, NKL did not even know that H had his hair in dreadlocks, or of his Rastafarian beliefs. Any less favourable treatment was simply on the grounds of untidy hair. The company’s dress code provided that ‘drivers should have a smart professional haircut and should ensure hair is tidy’.
As for indirect discrimination, the employment tribunal held that NKL had not applied a ‘criterion’ that wearing long hair, or dreadlocks, was unacceptable. When H had started work at NKL, he had long hair, and on his own evidence, he had worn his hair in dreadlocks from April 2004 to February 2006 whilst working there.
The employment tribunal then went on to find that even if such a criterion had been applied, NKL did so to impose a standard of appearance according to convention - a general standard of tidiness which applied to all drivers and would have applied to any driver wearing dreadlocks, whether or not of Rastafarian belief.
It also held that requiring ‘tidy hair’ is a proportionate means of achieving the legitimate aim of a presentable appearance to NKL’s customers/clients (in other words, NKL had met the test of justification set down in the Regulations). H appealed, unsuccessfully, to the EAT.
Employment appeal tribunal’s findings
One of the points argued at EAT on behalf of H was that anyone growing dreadlocks will inevitably, during that process, have unkempt and matted hair, and therefore to discriminate against those with matted hair will necessarily involve discrimination against Rastafarians. The EAT could not consider this argument because this had not been advanced at employment tribunal, and NKL had not had a chance to deal with that allegation.
The EAT also rejected H’s allegation that the requirement to have tidy hair itself is prejudicial to Rastafarians - that presupposed that NKL took the view that dreadlocked hair is necessarily untidy, again something that had not been explored fully at tribunal.
Interestingly, although it was not necessary for the EAT to assess H’s further ground of appeal that the employment tribunal did not properly assess the issue of justification (because the tribunal had already found that NKL had not applied the alleged criterion), the EAT did indicate it would have been minded to uphold that particular ground. It would have expected an employment tribunal to have carried out a fuller analysis of the employer’s approach to the issue of proportionality.
Finally, the EAT expressed concern over the employment tribunal’s finding that suggested there could be no indirect discrimination because the company would treat persons who wore dreadlocks (but did not have Rastafarian beliefs) in the same way as Rastafarians. The EAT correctly pointed out that this is irrelevant if the effect of the criterion is adversely to impact on Rastafarians.
Practical implications
This judgment is fact-specific, but one of a sparse number of cases which have been heard at appellate level under the Regulations.
In general, member companies should bear in mind that if dress codes conflict with the requirements of certain religions, they could result in indirect discrimination. For example, an employer’s dress code stipulating no jewellery might pose problems for some religious groups. Where it is possible to modify the dress code to accommodate a particular individual’s religion or belief, then the employer should do so if it is a proportionate response.
For example, Hindu men wear neck beads which are an indication of their faith. Suppose an employer operating a van hire company employs a Hindu driver. If the company seeks to prevent him from wearing neck beads, this is unlikely to be justified.
By contrast, suppose an employer owns a factory and employs a male Hindu factory operative to work with dangerous machinery. Then the employer is likely to put the employee’s health and safety at risk if it allows him to wear beads. It is likely to be able to show that the practice of not allowing jewellery to be worn is a proportionate means of achieving a legitimate aim (the test for justification under the Regulations).
In the case under consideration in this article, the EAT's approach was to say ‘on the assumption that the company did object to dreadlocks on the grounds that they were inevitably untidy or too unconventional, we would have expected the tribunal to carry out a fuller analysis of the employer’s approach to the issue of proportionality . . an obvious point would be whether wearing a hat might have been a more proportionate response . . . it would have to be explored further in any careful assessment of justification’.