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A Temporary Staff Agency was Found to Discriminate Against a Work-Seeker Following a Blanket 'No Beards' Policy

An employment tribunal in Sethi v Elements Personnel Services Ltd found that a temporary agency indirectly discriminated against a practicing Sikh on the grounds of his religion because it enforced a “no beards” policy.

In this case, the work-seeker (“Mr Sethi”) adhered strictly to Kesh (which is a requirement that body hair not be cut). He was seeking work with an agency that predominantly worked with five-star hotels working within front of house food and beverage roles. The agency had a blanket “no beards” policy.

The Tribunal noted that the purpose of the policy was not for hygiene grounds and instead it was related to appearance and the impression created by personal appearance purportedly in response to demands from the agency’s clients. Mr Sethi told the agency that he would not be able to cut his beard and he was told that five-star service required workers to be clean shaven and facial hair was not allowed on the grounds of health and safety and hygiene reasons, despite the agency’s policy being concerned with appearance.

As a consequence, Mr Sethi brought a claim for indirect religious discrimination. In its decision, the Tribunal held that the no beards policy amounted to a provision, criterion or practice which placed Sikhs generally and Mr Sethi in particular at a disadvantage because of the practice of Kesh.

As you will be aware, indirect discrimination can be objectively justified and this was considered by the Tribunal. The Tribunal accepted that the agency had a legitimate aim which was seeking to comply with their client’s requirements. However, it held that the blanket policy of no beards was not justified as a proportionate means of achieving that aim and that the legitimate aim could be met by less intrusive means. The relevant factors in reaching this decision were that there had been no evidence of an attempt to clarify with the clients whether they would make an exception for a Sikh worker, what the agency’s clients would require when faced with a Sikh worker and not all of the agency’s hotel clients had a no beards policy.

The Tribunal’s decision also provides helpful guidance to agencies when faced with a similar situation. The Tribunal held that the legitimate aim, in this case, could have been met by accepting Sikhs onto the agency’s books and addressing a client's requirements on a case-by-case basis. It also held that it could not rely on client requirements without testing these in the context of potential exceptions for religious reasons which in turn deprived Sikhs of work due to the blanket policy.

This bulletin is for general guidance only and should not be used for any other purpose. It does not constitute, and should not be relied upon as, legal advice.

JMW Solicitors is a Limited Liability Partnership.

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