Case study: An unfair blanket ban

The case of Mr S v Elements Personnel Services Ltd highlights the potential for discrimination in blanket policies

Mr S, a practising Sikh, adhered to Kesh, a religious requirement stating that body hair may not be cut. He sought work with an agency whose clients were predominantly five-star hotels seeking staff for front of house food and beverage roles.

Upon reading the agency’s code of conduct, Mr S noticed there was a strict “no beards policy” amongst their list of “professional appearance standards” that seemed to have been introduced at the request of clients. When he advised the agency that he would be unable to cut his beard, he was told that five-star service required all staff to be clean-shaven, and that facial hair was not allowed for “health and safety/hygiene reasons”.

Mr S had not seen hygiene mentioned in the policy in relation to facial hair, and brought a claim against the agency. He alleged that the ‘no beards’ policy amounted to indirect discrimination related to his religion, contrary to the Equality Act 2010 (EqA 2010).

The tribunal held that the ‘no beards’ policy qualified as a “provision, criterion or practice” for the purposes of the EqA 2010. It found that the policy placed Sikhs generally, and Mr S in particular, at a particular disadvantage because of the practice of Kesh.

The tribunal accepted that it was a legitimate aim to seek to comply with client requirements. However, it considered that the blanket ‘no beards’ policy was not justified as a proportionate means of achieving that aim. There was no evidence that any client had been asked whether they would make an exception for a Sikh worker, and no evidence of what the agency’s clients would in fact require when faced with a Sikh worker. In addition, not all the agency’s hotel clients had a ‘no beards’ requirement.

The tribunal’s view was that the legitimate aim of meeting client requirements could have been met by accepting Sikhs, such as Mr S, onto the agency’s books and then dealing with clients on a case-by-case basis (seeking an exception for Sikhs who were unable to shave). The agency could not rely on blanket, untested client requirements to enforce a policy that effectively deprived Sikhs of work.