In Sethi v Elements Personnel Services Ltd an Employment Tribunal held that a temporary work agency indirectly discriminated against a practising Sikh, when it refused to keep him on its books because he would not be able to shave his beard for religious reasons.
Sethi v Elements Personnel Services Ltd
Case background
The work-seeker, Mr Sethi, adhered to Kesh (the requirement that body hair not be cut). He sought work with an agency whose clients were predominantly five-star hotels. The agency had a “no beards” policy. The policy was concerned with appearance, not hygiene, and had purportedly been implemented in response to demands from the agency’s clients.
When Mr Sethi 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” (although the agency’s policy was concerned with appearance).
Mr Sethi brought a claim against the agency, alleging that the “no beards” policy amounted to indirect discrimination related to his religion, contrary to the Equality Act 2010 (EqA 2010).
Tribunal proceedings
The Tribunal held that the “no beards” policy was a provision, criterion or practice for the purposes of the EqA 2010. The policy placed Sikhs generally, and Mr Sethi in particular, at a particular disadvantage because of the Sikh 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 Sethi, 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 “no beards” policy that deprived Sikhs of work.
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