No indirect discrimination against a Rastafarian to insist on a ‘tidy hair’ dress code.
The Employment Equality (Religion and Belief) Regulations 2003 are getting a thorough testing in the Tribunals and the EAT. In the recent case of Harris v NKL Automotive & Matrix Consultancy the EAT had to consider allegations of discrimination made by a Rastafarian van driver.
It was accepted that he had had long hair tied back in a ponytail when he was recruited, but there had then been complaints about his ‘untidy hair’. It was only after he had been dismissed (and did not have sufficient continuity of employment to raise an unfair dismissal claim) that he filed a grievance mentioning for the first time that he was Rastafarian and alleging discrimination on grounds of his philosophical beliefs.
The Tribunal was quite clear that there could be no direct discrimination because until that point the employer had been unaware of his beliefs.
There was no indirect discrimination either because he had been taken on with dreadlocked hair and it was only when it was believed to have become untidy that any problem had arisen. If it had been necessary, the employer would have had a good defence in the wording of its dress code - ‘smart professional haircut and ensure all hair is tidy’ – for arguing justification or proportionality in requiring the dreadlocks to conform with its rules.
The only point which the EAT referred back to the Tribunal was the issue of whether, in treating his grievance dismissively, the employer had been guilty of victimising the employee on the ground of his belief.
Points to note:
- Now that discrimination on grounds of religion or philosophical belief is unlawful, employers should review not only their equal opportunities policies but also their dress codes and other policies requirements or practices that could possibly infringe rights afforded by the Regulations, to ensure that they are compatible.
- Employers should be particularly careful to avoid the victimisation ‘trap’. In the case of Harris, possible victimisation in the grievance process remained the only ‘live’ issue. Similarly, in the more well publicised case of the veiled Muslim teaching assistant (Azmi v Kirklees Metropolitan Borough Council) the only claim on which the employee succeeded was victimisation, as evidenced by shortcomings in the handling of the grievance procedure. In the Kirklees case, the claimant was awarded £1,000 in compensation for victimisation, uplifted by 10% on account of the for procedural failure.